For example, if parties clearly reach an agreement on Dec.
31, 2009, but do not execute a contract formalizing their agreement until Jan.3, 2010, the contract may be dated as of Dec. This is simply the accurate memorialization of a past event, something that is essential to legal practice.
Furthermore, giving the written contract its own date simply reflects the reality of how the contract process unfolded, and it’s always good to have contracts track reality.
If the date of the oral agreement was reached is somehow significant, then mention it in the recitals of the written contract.
Such relation back or forward contravenes no principle of law and is determined by the intent of the parties as deduced from the instrument itself.” As a practical matter, the proper date to put on an agreement is something that corporate counsel is likely to have to make a judgment call on quite often.
This is because documents take time to draft, negotiate and execute.
The first and most important thing to note about the consequences of backdating a document is that it is potentially a criminal offence.
One of the thornier issues which comes up in legal practice from time to time is the backdating of documents.
Legally speaking, this is something that you should not do – or more accurately, there will only ever rarely be occasions when this is appropriate to do.
Lawyers who were trained in commonwealth jurisdictions may have an ingrained concept that backdating a document is generally improper, if not illegal.
This is reflected in the Linklaters article Execution of Documents: Five Common Questions Answered, which offers the following advice for in-house lawyers: “(i) contracts may only be backdated, absent fraud, in circumstances where an original form has been lost or where terms have been fully agreed but signatures have been left to a later date and (ii) deeds may never be backdated.” Unfortunately, the article offers scant authority, and a search on Google reveals little else on the subject from the commonwealth world.