Backdating an email
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Where backdating is done for financial gain, it may also constitute the more dull-sounding criminal offence of obtaining a pecuniary advantage by deception.
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.In practice what should happen is that the principal should ratify the signatory’s act as agent, and the courts are usually happen to construe signing a backdated power of attorney as misguided (but effective) attempt to ratify by conduct.However, backdating documents creates a contract a bit like Schrödinger’s cat.In certain cases a criminal act may negate insurance.At the very least a party seeking equitable relief will struggle to meet the test of “clean hands” which the courts require.Probably the most difficult of the grey areas occurs where parties have a recurring commercial relationship which starts informally, but they later decide to document it and agree terms.
In such cases, where the parties are not legally advised, it is absolutely not uncommon for the parties to sign the agreement and then backdate it to the start of the commercial relationship believing that this will “catch” all the prior aspects of their relationship.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.However in practice, for both good reasons and bad, backdating of documents does occur.The risks of backdating (or misdating) documents accidentally is multiplied in modern commercial transactions by the practice of getting all the documents signed before “completion” and then rushing around dating them afterwards.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. There are rare occasions when it may be permissible or even justified to do so.