This is a fraud on the tax authorities, a criminal offence and is likely to get the lawyer who prepared the document disciplined by his regulator and possibly also charged as a co-conspirator. 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. Legally speaking of course what they should do is put a provision in the contract which states that the terms of this contract shall also govern prior transactions which the parties shall henceforth treat as being regulated by those terms. 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. In practice the courts are more sympathetic than one might anticipate. 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. However in practice, for both good reasons and bad, backdating of documents does occur. However, such doctrines are normally limited to situations where one party backdates the contract without the knowledge or consent of the other. The best way to achieve this is to state openly in the document that it is recording an earlier oral agreement made on, and so is with effect from, a particular date and then date it the actual date it was signed. United Arab Emirates January 31 I am sure that from time to time we have all come across the vexed question of backdating documents.
Alternatively, is there a way of legally trying to achieve the required objective? The position is then clear to all who subsequently look at the document. However, he only realizes this in January and so wishes to backdate the document to December. What confirmation of the earlier agreement did the client or the company for which the client and lawyer works provide? However, even if it is an agreement that could have been made orally the lawyer preparing the agreement has no way of knowing whether that is actually the case and that the agreement to be fully documented by him is the one that was reached at the earlier date. Is it legal to comply with the request or must it always be refused outright? However in practice, for both good reasons and bad, backdating of documents does occur. For example, if a seller had sold his house in December then the seller could have taken advantage of certain tax benefits. 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. 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. So is it ever OK to backdate a document? Colin Riegels Colin Riegels One of the thornier issues which comes up in legal practice from time to time is the backdating of documents. There are rare occasions when it may be permissible or even justified to do so. 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. How well does the lawyer know the client? However, the actual date of signature should nevertheless be set out in the attestation clause at the end to avoid any claims that the document was intentionally misleading. The event did not happen during the time period required for the benefit so an attempt is being made to pretend that it did. Slightly more tenuously, where the parties reached a binding agreement on a certain date, but only reduced it to writing on a later date, they might be justified in putting the date of agreement rather than the date of execution if the terms were in fact identical a more likely scenario given the length and detail of many modern written contracts would be where the terms of contracts are agreed by e-mail on a certain date, but the parties were only available to sign the actual physical documents upon a later date. You can never be absolutely sure whether it is alive or dead or perhaps alive from a different date than you had anticipated until a judge opens the box for you. In certain cases a criminal act may negate insurance. The best way to achieve this is to state openly in the document that it is recording an earlier oral agreement made on, and so is with effect from, a particular date and then date it the actual date it was signed. 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. 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. 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. 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. There are some ways in which the lawyer can give himself some protection in agreeing to such a request but they are not foolproof. Although in exceptional cases — where third party rights are not affected — the courts might be persuaded to treat the stated date as being the effective date, a situation we return to below.
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