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    Backdating document

    Mr Strauss-Kahn’s apparent decision to fight the case echoes an earlier episode where he chose to tackle a legal problem head-on.

    In 1999, he resigned as France’s minister of economy and finance, to focus on his defence against an accusation that he backdated documents to justify his consultancy fees for work on a student health insurance fund. A person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.

    Courts have certainly been willing to hold that a contract exists before a written contract has been finalized. But I’d still use as the date for a written contract the date it was signed.

    It’s likely that the written contract addresses many more issues than were covered by the oral agreement, making the written contract different from the oral agreement.

    My father (who was also a lawyer) used to love telling a story about how he was able to triumphantly prove to the court that a yacht charter was backdated by showing the stamps which had been used to pay the nominal 15¢ stamp duty were in fact first issued by the post office some four months after the date stated on the face of the document.

    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.

    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.

    However, at common law this was a criminal offence (going by the contradictory sounding name of uttering a false document) and in most English law based legal systems it is still an offence today, although in many cases statutory provisions have superseded the common law (for example, in the British Virgin Islands see section 242 of the Criminal Code 1997).Legally speaking, this is something that you should not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.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.Furthermore, giving the written contract its own date simply reflects the reality of how the contract process unfolded, and it’s always good to have contracts track reality.If the date of the oral agreement was reached is somehow significant, then mention it in the recitals of the written contract.

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