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Such relation back or forward contravenes no principle of law and is determined by the intent of the parties as deduced from the instrument itself.” As a practical matter, the proper date to put on an agreement is something that corporate counsel is likely to have to make a judgment call on quite often.
This is because documents take time to draft, negotiate and execute.
Documenting a transaction which has already happened One possible scenario is that the relevant transaction has already happened, but just hasn’t been documented yet.
For example, there may have been a transfer of trade from one group company to another on a particular date.
The agreement could specify, amongst other things, that costs and revenue would be apportioned by reference to the historic effective date, with adjusting payments being made accordingly.
This type of arrangement would not bind third parties, but it may be effective from an accounting and tax perspective depending on the length of time which has elapsed since the intended historic effective date.
Documenting a transaction which has not yet happened In other cases, it may not be possible to say that the relevant transaction has already taken place – but you may still want to achieve a ‘backdated’ effect.
Conclusion It can be very tempting just to ‘backdate’ documents, with the intention of making life easier. With a bit of thought and investigation, is it often possible to achieve a result which gets close to the desired result and also lets you sleep at night.This is one of the most common issues which comes up in the context of group reorganisations or intercompany agreements. Giving a document a date which is earlier than the date when it was actually signed, would almost certainly constitute fraud.Although it may have been intended to put in place a new arrangement by a particular date – often a year end – that date may now have passed. Obviously the ideal position is to put in place the legal documents in advance. Well, it depends on what was transferred, and whether it can be said that the relevant transaction has already happened.For example, a reduction of share capital using the UK solvency statement procedure only takes effect in law when it is actually registered with Companies House.So any attempt to rely on the reduction before registration would be ineffective.
In this situation, it may be possible to create a document after the event which recites what actually happened, and which records the key terms of the transaction.