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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.
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.
This would be fraud, and would be likely to expose those involved to a number of different criminal offences.
Documenting what happened in the past What you can do is document a transaction which has actually happened in the past which had not been formalised.
1990) held that: “Illinois courts have, in the past, permitted the “relation back” theory of contract effectiveness: that is, contractual terms may be effective for a period before the contract is executed, so long as such coverage is clear from the face of the contract: In the law of contracts, it is elementary that ordinarily a contract speaks from the day of its date, regardless of when it was executed and delivered.
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.In the US, however, there seems to be have been much more consideration of the issue (at least according to my Google search results).Despite recent controversies surrounding the backdating of executive stock options, the general attitude in the US is that backdating is not wrong (or right), per se.Similar situations may arise in relation to intra-group supplies of goods of services, or transfers of a business (where the associated transfer of employees may also be a matter of record).In this kind of situation, the following general approach should be considered: – the relevant arrangements can be documented in the appropriate form, such as a loan agreement or business transfer agreement.