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29-Feb-2016 07:56

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.

A commonly used example is where the parties had originally signed a document, but the original had been lost or destroyed before it could be stamped or filed.

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.

Accordingly, the best advice in relation to backdating documents will always remain: don’t do it.

However, in each case this could only operate where the contact is a “simple” contract rather than formally executed as a deed (ie signed, sealed and delivered).

For execution as a deed the requirement of signing is a crucial part of the process of creating rights by way of deed, and so it is never permissible to backdate a deed.

One of the thornier issues which comes up in legal practice from time to time is the backdating of documents.

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.

But even if there is no crime committed (for example, if the backdating was accidental so that there was no (“not my deed”) or the rule in Pigot’s Case such that in the eyes of the courts, the document is treated as though it does not exist.But even if a person is not charged with a crime, the fact that a crime can be demonstrated to have occurred may still impact the rights of the parties.Parties seeking to enforce rights can find those rights barred by ancient common law doctrines like (“from a dishonourable cause an action does not arise”).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.

But even if there is no crime committed (for example, if the backdating was accidental so that there was no (“not my deed”) or the rule in Pigot’s Case such that in the eyes of the courts, the document is treated as though it does not exist.But even if a person is not charged with a crime, the fact that a crime can be demonstrated to have occurred may still impact the rights of the parties.Parties seeking to enforce rights can find those rights barred by ancient common law doctrines like (“from a dishonourable cause an action does not arise”).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.However, such doctrines are normally limited to situations where one party backdates the contract without the knowledge or consent of the other.