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08-Oct-2019 21:35

It’s not unusual for parties to a contract to want the written agreement to cover a period before it’s actually signed.

There are any number of contexts where this comes up — some legitimate and others not exactly aboveboard — but the logistics of negotiating and signing contracts are such that the issue is unavoidable.

For a shorter piece with a few practical tips see Backdating – it’s illegal isn’t it?

Setting aside such issues, avoiding unwanted side effects of backdating contracts can be tricky, especially when the purported effective date of an agreement is several months before the date it was actually signed, as can be seen in involves the ownership of a promissory note that was made to a bank in connection with a loan.

We cannot conclude, therefore, that in resolving the inconsistency between the FDIC/Weatherford Agreement and the Termination of Participation Agreements, the trial court erroneously relied on these uncontested facts to find “a lack of mutual assent” with respect to a November 7, 2008 effective date.

(Jason Mark Anderman illustrates the logistics problem well in this comment to a backdating post on Ken Adams’s blog.) There’s nothing inherently illegal or unethical about backdating contracts, although backdating can certainly be both unethical and illegal, depending on the situation.

For those with an hour to kill thinking about the issues, Jeffrey Kwall and Stuart Duhl wrote an excellent article on backdating that was published in Business Lawyer in 2008.

If the claimant presents evidence of any of the following conditions the claimant is entitled to :1) acceptance of claims at the UC office is suspended because of excessive filings; 2) the method of filing is unavailable on the last day of timely filing; 3) the UC office fails to accept the filing in error; 4) the claimant makes reasonable good faith efforts to file and through no fault of their own the claimant is unable to timely file the claim; or 5) the claimant has an immediate family member who is sick or dies. The UC Referee and the UC Board of Review denied his application for backdating arguing that Falcone’s sick family members only distracted him from filing but because the Pa Code only required the Claimant to prove he had a sick family member, not to prove he was prevented from filing his claim for the first two weeks.

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However, there are two or more conditions present and if the conditions prevent the claimant from filing the claim. However, the Commonwealth Court sustained the denial of backdating for the remaining additional four weeks because the Claimant did not prove any of the other reasons listed in the Pa. Code required two or more conditions for additional backdating.Due to this ambiguity in the contract documents, the trial court was permitted to look at the evidence of the parties’ intent outside of the documents, and it found that the FDIC didn’t acquire an interest in the loan until June 2009, regardless of the stated effective date in the main agreement.

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