In practice, for both good reasons and bad, backdating of documents does occur.The risks of backdating (or misdating) documents is multiplied in modern commercial transactions by the practice of getting all the documents signed before completion and then rushing around dating them afterwards. There are rare occasions when it may be permissible or even justified to do so, as this briefing explains.And to say it's up to the bean-counters to catch this situation is silly, because the whole reason you're using phony dates is so that the bean-counters won't know what you really did.And this is why defenses to backdating sometimes get hard for me to understand.Different considerations may apply from accounting and tax perspectives, and those aspects should be taken into account too.What you can’t do Clearly, you can’t backdate a document so that is appears to have been signed on, say, 31 December, when in fact it was signed on 15 June.Delivery fixes the date from which the executing party is bound by the deed, and once delivered, a deed is irrevocable in the absence of an express right of revocation.At common law, a deed is delivered when a party expresses an intention to be bound by the deed, even if it retains possession of the document.
One of the distinguishing factors about the execution of a deed as compared to a contract is that a deed must be “delivered”.Whenever I write about backdating, many people write in to tell me that backdating's not illegal; you just have to account for it correctly.Since so many people think this is an important point, I thought I'd do a post addressing just that contention. What I assume people mean is that granting in-the-money options is not illegal, so long as you account for it properly. But the whole point of backdating is to pretend that you're not granting in-the-money options when in fact you are.The contract date is usually written onto the front cover and the first page of the contract (although there is no legal requirement to do so).Generally this is the date that the last party signed the contract.
For example, one group company may have lent money to another group company without documenting the arrangements in a written loan agreement.