A counterparty clause expressly states that the parties agree to receive only a copy signed by the other party. Receiving a copy signed by the party is the acceptance of the offer made by the written contract. Oppositions are one of the most remarkable provisions of modern common law practice. Although it has almost completely lost its necessity over the past century, it is still integrated into most of the treaties that come from these legal systems. For Continental European legal systems, this clause is unnecessary. Background. What is the context of a quid pro quo? In common law countries, a defendant may require a plaintiff to provide proof of a valid contract by handing over the original documents. If, 350 years ago, an original bearing the signatures of both parties or an equivalent signed by the other party could not be shown, a court would have ruled 350 years ago that no valid or enforceable contract had been entered into. At that time, in the mid-17th century, contracts were drawn up in two ways: either as a document that reflected the rights and duties of both parties and was signed by each party (and each party would receive an equal copy, and both copies would be considered “original”); either in combination with a document that reflects the rights of the owner or seller (which is referred to as “original”) and a document reflecting the remaining rights and obligations (this document has been called “consideration”). The terminology refers to the physical representation of contracts: the original and the equivalent were separated by a perforation to resolve the two counterparties. Each party would sign the equivalent of the other party (on which its commitments were reflected).
At the turn of the 19th century, contracts were typed on paper with carbon copies: carbon copies were the counterparts to the original. At that time, some kind of legal obligation of counter-engagement was understandable to prevent fraud. The case law says that an agreement without a counterparty clause is binding, but you do not want to go to court to solve a problem that could have been easily dealt with when the contract was made. From a technical point of view, the execution of several copies of the same agreement is a duplicate, not a consideration. This is why some lawyers refer to duplicates when discussing a co-part clause. Although the counterparts clause is no longer really necessary, many jurisdictions still contain it. In Europe, the clause is considered superfluous. Cumulative counterparties may constitute an executed contract, even if the original maintained by one party has only its signature and the signature of the other party is missing. The full performance of a contract, even if it is executed in its entirety in counterparties, offers the parties the same remedies as a contract signed by all parties on the same document. A counter-clause gives the parties confidence in the terms of their agreement, even if there is no “original” with the signatures of both parties. The clause allows the agreement to be executed in several identical copies, so that the parties can sign the document at different locations.
However, it requires that the documents be identical; and the execution of a signature page does not constitute an agreement between the parties. The second explanatory statement, taken from the American Bar Foundation`s Commentaries on the Model Debt Indenture Provisions (p. 590), states: “It is highly desirable to include a counterparty provision to avoid any problems, which signed copies of indentures are the original.” The objections are generally used in the following circumstances: it would suffice to hand over an original executed by the other party if the contract contains a contrary clause: these clauses are useful if all parties wish the certainty that each copy of the agreement is treated as original.