First Posted: 2/11/2015
One of the most frequent questions I get is whether a photocopy of a document is as good as an original. Conversely, clients often are very proud to present me with “the original” version of a document, with the impression that the original is “extra enforceable.”
Documents that are signed with ink flowing from the pens of the signers are usually called “originals.” Any mechanically reproduced image or representation of the original is usually called a “copy.”
Mechanical reproduction of signed documents largely came into vogue with the introduction of carbon paper many decades ago, later evolving into ditto machines, fax machines and photocopiers. Now, documents are often scanned, and any printed images are considered copies.
In the earliest days of mechanical copies, originals and copies were easily distinguishable from one another, if the original document was signed in blue. Of course, this handy identification trick went by the wayside once color copiers, scanners and printers became available. Thereafter, the easiest way to tell originals from copies was to look for indentation of the pen on the paper located exactly on the spots where ink appeared. New technology has also made this method of identification moot.
As a general rule in Ohio, with a few exceptions, a copy of a document is as good as an original. In lawsuits, copies of documents are generally treated as if they are originals, unless someone claims that the copy is not authentic (a forgery).
Original wills must be presented to the local probate court in order to probate an estate, unless the original is lost and sufficient proof can be provided that a certain copy of the Will is identical to the original.
Because the uniqueness of real estate, any real estate documents to be recorded in the local county recorder’s office must be originals. However, copies can be recorded if they are identified as exhibits to an original affidavit that is recorded.
A promissory note is a business document that is only enforceable if it is the original. A promissory note is literally a promise to pay. A promissory note is necessary in order for a mortgage (a lien) to exist.
Between 2009 and 2012, dozens of mortgages (and the amounts due under those mortgages) in Ohio were deemed unenforceable solely because the bank at issue had lost or misplaced the original promissory note. For this reason, it is important for a borrower to only sign one original of a promissory note. Signing two original promissory notes, very technically, is a promise to pay double.
When a promissory note is lost or misplaced, there is a cumbersome but effective way to overcome the problem, as long as someone will swear under penalty of perjury that he or she knows that a certain copy is absolutely identical to the original.
Guarantees (often spelled “guaranties”) are essentially promissory notes with a condition. The condition is that the person who signed the promissory note did not pay. For this reason, original guarantees also have legal significance.
