Back to basics – signing your documents correctly
Counterparts are legal copies of a document. Learn about types of counterparts and when you can use an electronic signature.
We are frequently asked what is and what is not permissible in terms of electronic signature of documents. The law is not as straightforward in this area as it might be — we summarised the position recently in this article. The practice note is concerned with contracts entered into in a business context rather than with consumers or private individuals. As there is usually no statutory requirement regarding the execution of simple contracts, the practice note says that a simple contract may be concluded using an electronic signature.
Under section 46 of the Companies Act a document is validly executed as a deed if, and only if, it is duly executed by the company and delivered as a deed. According to the practice note:. Under section 1 3 of the Law of Property Miscellaneous Provisions Act an instrument is validly executed as a deed by an individual if it is signed by him or her in the presence of a witness who attests the signature. Section 44 of the Companies Act provides that a document can be validly executed by a company if it is signed on behalf of a company by a director in the presence of a witness who attests the signature.
The practice note says that where a signatory signs, including electronically, and a witness has sight of this, and the witness signs the attestation clause, including by electronic signature, the deed will have been validly executed. The practice note states that to minimise the evidentiary risk it is preferable for the witness to be physically present when the signatory signs rather than witnessing through a live televisual medium.
Minutes of the proceedings of a general meeting that are signed by the chairman using an electronic signature will constitute evidence of the proceedings and a record of a resolution passed otherwise than at general meeting that is signed by a director or the company secretary using an electronic signature will constitute evidence of the passing of that resolution. Where no such manner has been specified by the company, the communication must contain or be accompanied by a statement of the identity of the sender and the company must have no reason to doubt the truth of that statement.
In other words, the document bearing the electronic signature would be accepted as prima facie evidence that the document was authentic unless evidence was adduced to the contrary.
By Craig Ramsay 23 Feb Pre 1 July , the prevailing view under Scots law was that counterpart execution was not competent. When it came to completing transactions, the options were either: i have a meeting with all parties physically in attendance; or ii circulate a single copy of the agreement to all parties for signing.
be used when executing a document (including a contract) or a deed. If an appropriate execution clause exchange a duly executed, hard-copy counterpart of the whole deed. It is also prudent to Attorney ^Number or Date^ ^insert details of.
In the virtual world of today, when many people work in the cloud and at a distance from colleagues, the concept of what makes a document “legal” has new meaning, and new technology has changed what types of signatures including electronic signatures are acceptable for legal documents. In the law, a counterpart is a duplicate document. The term “counterpart” is used in legal documents to describe a copy of a contract that is signed and is considered legally binding, in the same way as the original.
In many cases, several copies of a contract document are prepared, so that all parties and signatories can have a copy of the contract. After signing all copies, they can be considered the same. Counterparts are usually used when the signers to a contract are in different places, and contracts should include clauses that allow the use of counterparts.
This clause typically specifies that each of the counterparts when signed “shall be deemed to be original” and that all the counterparts together is one document. These counterpart clauses also describe what defines acceptable delivery.
When do you date a settlement deed if you are executing three counterparts?
Know more. Load More. Explanation 1. Where a document is executed in several parts, each part is primary evidence of the document :Where a document is executed in counterpart , ea
We recommend putting a unique identifier such as the date and time of the draft, in the document itself. This will help to confirm that the.
A counterparts clause states that the parties signing the agreement don’t all need to sign the same copy and any copy of it may be treated as an original. A counterparts clause states that the parties signing the agreement don’t all need to sign the same copy. Any copy of the agreement may be treated as an original. Some clauses stipulate that an agreement isn’t effective until one party delivers its signed agreement to the second party. Because the clause is so brief and it’s common to execute agreements in multiple parts, you may want to include a counterparts clause in any contract you draft in case it’s not signed in the traditional way — that is, by all parties, in person.
Case law states an agreement is binding without a counterparts clause, but you don’t want to go to court to resolve an issue that could easily have been handled when you drafted the contract.
Signing documents in a WFH world – NSW moves into digital mode
Making it easier to execute documents electronically. This project is now complete. The Government responded to our report in March , confirming its agreement with our legal conclusions and undertaking to establish an Industry Working Group to consider issues of security and technology. The full response is available below.
Frequently Asked Questions about creating legal documents. Many of our documents can be executed in counterparts and this will often be included as a If no other date is specified, the contract is effective on the execution (signing) date.
What’s on Practical Law? Show less Show more. When do you date a settlement deed if you are executing three counterparts? Ask a question. Practical Law may have moderated questions and answers before publication. No answer to a question is legal advice and no lawyer-client relationship is created between the person asking the question and the person answering it. Where appropriate, you should consult your own lawyer for legal advice.
Practical Law’s employees are not practising solicitors or barristers. The Ask scope and rules apply. Anonymous Private practice. Add reply. Related Content. If you date when you sign the counterparts could all be dated differently and this will naturally affect any clauses regarding payment within [x] days of the date of the deed will.
Do you agree that everyone will sign and return to one party who dates all of the original counterparts once received and sends everyone a full copy of all three of them?
What Is a Counterparts Clause?
By signing, or in other words, executing a contract, you are indicating your agreement to the terms and conditions contained within the document and demonstrating your intention to be legally bound. It might sound obvious but If you are having trouble understanding the agreement and the ramifications of signing it, ask a lawyer, accountant or other suitable person to assist you. Although not a legal requirement, it is common practice for the parties to initial each page of the agreement.
In some circumstances, you will be specifically asked to initial each page or certain pages , such as bank mortgage documents and documents intended to be registered with the Lands Department such as commercial or retail leases. You may also be asked to complete your full name, address and other details.
The single document can be made up of either: both/all the So the “date” of a contract executed in counterpart would be that date of delivery.
Our non-contentious engineering and construction experts provide their top ten tips for executing documents. Only those parties to a document that have obligations under the document generally need to sign it. For example, only the warrantor needs to sign a collateral warranty where there are no step-in rights and only the party allowing reliance needs to sign a letter of reliance. The type of ‘entity’ signing the document will dictate who should sign it.
The most common forms of ‘entity’ are:. The document is likely to be either a deed or a ‘simple’ contract. Generally, claims for breach of a ‘simple’ contract can be brought up until six years from the date of the breach. Claims for breach of a deed, however, can be brought up until twelve years from the date of the breach.
Counterpart Execution of Wills and Powers of Attorney
Some clauses stipulate that the agreement is not effective until one party delivers their signed agreement to the other. Drafters should note that this clause has a tendency to be a bit outdated. Many clauses, including our standard, do not include any reference to faxed or emailed signed copies. This seems to be common practice in contracting.
A particular document may require specific execution formalities or may specify You should keep up-to-date with any relevant developments.  EWHC (QB); The inclusion of a ‘counterparts clause’ in transaction.
In the second of our series “Back to Basics”, we consider the position you may be in if there has been an error in the execution of a contract. In many cases, where something has gone “wrong”, this may not be fatal to the document as a contract – it is worth having a checklist to hand as a point of reference in the first instance. See our article ‘ Back to basics – signing your documents correctly ‘ for a summary of what is generally required for a document to be validly executed as a ‘simple’ contract or a deed.
If only life were that simple! No pun intended. However, as we all know, things can and often do go ‘wrong’ in the execution of documents; see below for a handy guide for some but not all of the common mishaps that you may encounter. If a document has not been correctly executed as a deed, it may still take effect as a ‘simple’ contract provided that:.
Execution of documents under Scots law
We have previously written about the current rules and uncertainties impacting electronic signing here. State and Federal governments are now in the process of passing temporary laws to address issues relating to the signing and attesting of documents. The overall aim of these measures is to provide specific relief by way of modification or exemption to certain requirements of document preparation, signing and witnessing.
However, the rules are not uniform across jurisdictions and you will need to consider both which laws govern the document to be executed and where that document is actually executed to determine the applicable rules. At the time of publishing this article only a couple of jurisdictions have released updated rules. We will provide another update once more jurisdictions have passed new regulations.
Each counterpart must be a complete document and not simply the signature pages. If the execution schedules etc. are attached. Do not date the deed (unless.
To address the spread of Coronavirus Covid , governments and corporates are increasingly ordering corporate staff to work from home. Given this, it has become increasingly important to consider how to execute contracts in circumstances where staff are separated by location and resources, and whether it is appropriate and possible to legally execute documents by electronic signature.
In Australia, there are five essential elements necessary for formation of legally binding contracts, namely. Provided that the above requirements are met, the general position with contracts in Australia is that contracts do not need to be reduced to or represented in writing to be enforceable and accordingly the above principles apply equally to electronic contracts. The relevant statute in New South Wales is the Electronic Transaction Act NSW ETA and this expressly provides that a transaction is not invalid because it took place wholly or partly by means of one or more electronic communications .
The ETA further provides that a requirement for writing is in most instances satisfied by electronic communication, provided that:. Further, where the law or the parties require that the contract is signed electronically, the ETA requires that, having regard to all of the circumstances of the transaction, the method of signing must be as reliable as is appropriate for the purpose for which the electronic document was generated.
In the absence of any specific legal requirement for writing, usually arising under statute, Australian law does not prescribe that contracts must be in any particular form. Accordingly, such contracts can be entered into electronically and can include the parties affixing their signatures by way of electronic signature. Given, however, that there is an expected increase in fraud arising during the Covid period  , we would urge a cautious approach when making use of electronic communication and signatures in entering into corporate contracts.
Because the circumstances will necessitate parties entering into contracts without necessarily having face to face contact, there needs to be increased scrutiny when entering into contracts to ensure that the correct person has affixed their electronic signature. Questions as to the identity and intention of a person to enter into a contract has arisen in Australian the Courts previously.
In Williams Group Pty Ltd v Crocker  the Court had to consider the validity of electronic signatures where the signing party disputed that he placed his electronic signatures, despite the signatures having been inserted using an electronic, password protected, system that enabled users to sign documents electronically. In the above case, the relevant party had not changed the password to the electronic system he utilised to execute documents electronically and he successfully argued that he had not authorised the placing of his signature on the relevant documents, and accordingly that an unauthorised person must have done so.
Legal Update – Signing in Counterpart and Electronic Delivery.
Signing in counterpart means that duplicate contracts or deeds are printed so that there is a separate copy for signing by each party. The opposite situation is where one copy of the contract or deed is printed and signed by all parties to it. If you have numerous parties all in different locations it is a useful tool to allow completion without having to circulate a single copy of a document to all parties to sign. Often, you will see a clause in the agreement permitting the signatories to sign it in counterpart.
After a series of long and complex negotiations, the document is finally agreed. in the document setting out that the deed will be delivered on the date will not invalidate a document which is in fact signed in counterpart.
They often deal with complex matters and use legal terms. With a few exceptions section 52 2 of the Law of Property Act , a legal interest in land cannot be conveyed or created without a deed section 52 1 of the Law of Property Act The exceptions include:.