Counterparts: An Example of Categories-of-Contract-Language Dysfunction

Counterparts provisions are a mess.

For one thing, it’s not clear what counterparts are. I and others have been under the impression that it refers to a copy of a contract signed by fewer than all parties, but Black’s Law Dictionary says counterpart means “duplicate.” See this Twitter thread for a bit about that.

And whatever counterparts are, the issue raised is in fact such a nonissue that it’s not worth addressing in it a contract. I’ve not found anything suggesting that signing in counterparts can be challenged as making a contract unenforceable. It follows that the only function of the counterparts provision would be to reassure anyone who’s nervous about that. That’s not a worthwhile function.

If you’re not already fed up, there’s also a categories-of-contract-language problem with the standard counterparts-provision language. Here’s an example:

What’s in red is what you usually see. Ah, language of discretion (may)! That means we’re allowed to sign counterparts! Thank goodness! Without this provision, we might be in breach if we were to sign counterparts!

Hardly. Instead, the issue is whether the contract is effective if the contract were signed in counterparts. That’s expressed by the language in blue. So this provision makes two attempts to address the same issue twice, once ineffectually. (See this recent post for another instance of that sort of thing.)

That’s more about counterparts than any mortal should be exposed to.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.