Where the parties have obviously and without malice tried to wrap antecedent matters into a contractual framework, the courts will often imply a necessary term into the contract in relation to the regulation of earlier matters, particularly where this does not have an adverse impact on a third party or result in some evasion of taxation or filing fees.Another common example is where one person purports to sign a document on behalf of another person, and then afterwards the parties execute a backdated power of attorney to clothe the signatory with the necessary authority.Where backdating is done for financial gain, it may also constitute the more dull-sounding criminal offence of obtaining a pecuniary advantage by deception.Although criminal prosecution might be a risk in serious fraud cases, in most day to day legal matters where backdating occurs for reasons of administrative convenience, or simply by oversight or error, the risk of being charged with a crime are commensurately small.
However, at common law this was a criminal offence (going by the contradictory sounding name of uttering a false document) 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in most English law based legal systems it is still an offence today, although in many cases statutory provisions have superseded the common law (for example, in the British Virgin Islands see section 242 of the Criminal Code 1997).
My father (who was also a lawyer) used to love telling a story about how he was able to triumphantly prove to the court that a yacht charter was backdated by showing the stamps which had been used to pay the nominal 15 stamp duty were in fact first issued by the post office some four months after the date stated on the face of the document.
However, he rarely adds that he actually ended up losing that trial, which brings us to my second point even though the law generally deprecates the backdating of documents, the legal consequences of backdating are highly variable.
However, such doctrines are normally limited to situations where one party backdates the contract without the knowledge or consent of the other.
Where both parties consent to the backdating of the document, normally the courts in common law countries will simply disregard the backdating of the document, and treat the rights as accruing from the date when the document was actually executed.
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