Rebecca Gardner, Corporate and Commercial Partner at Howat Avraam Solicitors comments: Backdating documents are a surprisingly frequent customer demand. However, under English law, a treaty may create (or confirm) rights relating to past events, so they should not be backdated. If the parties to an agreement wish it to take effect one day earlier than the day of its signing, carefully crafted provisions may be included in the introductory clause (or any other appropriate part) of the agreement to deal with it. There are a few ways in which the lawyer can give himself some protection if he accepts such a request, but they are not infallible. If a document is to be reissued for the registration of a previous oral agreement. B, however, must be drafted in such a way as not to give the mistaken impression that it was actually signed on the date indicated. The best way to do this is to openly state in the document that it records an earlier oral agreement on a given date and does so from that date and dates to the actual date on which it was signed. The position is then clear to all those who then look at the document. Another possibility is to indicate, at the beginning of the document, that it is established “from” the required date. However, the actual date of the signature should be set at the end of the certification clause in order to avoid any allegation that the document was deliberately misleading. Even these methods of “retrodatation” of a document should not be used, even if there was no previous agreement and the document is merely an attempt to give the mistaken impression that something happened earlier than it was.
Indeed, even if a specific date is set, it does not protect counsel from involvement in a criminal offence if the purpose of the return is indeed to deceive or mislead the helmsman, regulator or even any other person, and counsel knew or should have known that this was the case. The $1 million sola change that I am preparing for this client to deliver to his benefactor, the actual date the funds were wired, was legal. It was created to document or commemorate an earlier oral agreement on the repayment of funds. As you can see, the issue of retrodation can be controversial. It is not straight and can cause problems for any lawyer who agrees to put a document back together, even if he specifies in the document that it is backdated, because he must ensure that the document is retrodated and that it is done for a legitimate reason. Therefore, if in doubt, it is preferable to say “no” or, if necessary, to seek external legal advice. If, in the credit example above, the seller has submitted a contract on December 15 in which the products will be delivered from February 1.