Effect of backdating a contract

When we say “back dating” what we usually mean is executing a document and then dating it with an earlier date than the actual date of execution, with the intention that it should be treated as giving rise to legal rights before the actual date.However, at common law this was a criminal offence (going by the contradictory sounding name of ) and in most English law based legal systems it is still an offence today, although in many cases statutory provisions have superseded the common law (for example, in the British Virgin Islands see section 242 of the Criminal Code 1997).Drafting and executing a document after an event occurs, but in a manner that accurately reflects the date on which the event transpired, is a permissible form of backdating.This is backdating that memorializes, something the United States Court of Appeals for the Seventh Circuit has recognized as a legitimate practice.There are any number of contexts where this comes up — some legitimate and others not exactly aboveboard — but the logistics of negotiating and signing contracts are such that the issue is unavoidable.(Jason Mark Anderman illustrates the logistics problem well in this comment to a backdating post on Ken Adams’s blog.) There’s nothing inherently illegal or unethical about backdating contracts, although backdating can certainly be both unethical and illegal, depending on the situation.However in practice, for both good reasons and bad, back dating of documents does occur.The risks of back dating (or misdating) documents accidentally is multiplied in modern commercial transactions by the practice of getting all the documents signed before “completion” and then rushing around dating them afterwards.

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.

Courts have certainly been willing to hold that a contract exists before a written contract has been finalized. But I’d still use as the date for a written contract the date it was signed.

It’s likely that the written contract addresses many more issues than were covered by the oral agreement, making the written contract different from the oral agreement.

This article will try to unpick the various legal threads of when you can and cannot back date documents, and what the consequences will be if you do.

The first and most important thing to note about the consequences of back dating a document is that it is potentially a criminal offence.

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