However, an explanation often given by the person wanting to backdate the document is that the document is merely meant to reflect an oral agreement that has already been made and that this is just a way of documenting it.
In theory, this would appear on the face of it to be a reasonable request, as it is just a private arrangement between two parties.
The position is then clear to all who subsequently look at the document.
Another way is to state at the beginning of the document that it is made “as of” the required date.
This is one of the most common issues which comes up in the context of group reorganisations or intercompany agreements. Giving a document a date which is earlier than the date when it was actually signed, would almost certainly constitute fraud.
Although it may have been intended to put in place a new arrangement by a particular date – often a year end – that date may now have passed. Obviously the ideal position is to put in place the legal documents in advance. Well, it depends on what was transferred, and whether it can be said that the relevant transaction has already happened.
I am sure that from time to time we have all come across the vexed question of backdating documents.
A client or, in the case of an in house lawyer colleague (who for the purposes of this article will also be considered a client), asks you to prepare a document and then your heart sinks as he says “oh and it has to be dated” and gives a date which has already passed.
Alternatively, is there a way of legally trying to achieve the required objective?
Is the client a longstanding one who has always acted properly in the past? These are questions he will probably be asked by the judge or regulator if things go wrong and to which he will need convincing answers.
There are some ways in which the lawyer can give himself some protection in agreeing to such a request but they are not foolproof.
Documenting a transaction which has already happened One possible scenario is that the relevant transaction has already happened, but just hasn’t been documented yet.
For example, there may have been a transfer of trade from one group company to another on a particular date.