A BBC report on the Dominique Strauss-Kahn story today states:
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. He was acquitted in 2001.
Further information on this story appears in a Los Angeles Times news report here.
IP Draughts is unfamiliar with the French law on backdating documents, but can provide some insight into English law in this area. Section 1 of the Forgery and Counterfeiting Act 1981 provides:
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.
Under Section 8(1)(a), “instrument” is defined as including:
any document, whether of a formal or informal character
Under section 9(1)(g), an instrument is false:
if it purports to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered
Accordingly, mis-dating a contract could amount to an offence under this Act. Such an offence could be tried in the magistrates’ court or on indictment. Section 6(2) provides that the maximum penalty on indictment is 10 years’ imprisonment.
Contracts drafted by English lawyers typically include a date in the first line. This is usually introduced by wording such as:
This Agreement is made this ___ day of _________ 2011
Best practice among English solicitors is not to type this date in the agreement prior to signature, but rather to write the date in by hand once all parties have signed. More often than not, in our experience, when parties type the date in ahead of signature, one or both parties fails to sign on the typed date.
Although it is probably rare that a criminal forgery is committed in these circumstance (it is not a strict liability offence, so criminal intent must be present), it is not something that most of us want to risk.
There is usually no problem with making the contract effective from an earlier date. The best way of doing this is to have a defined term such as Commencement Date or Effective Date, and to state in the body of the contract that the contract takes effect from that date.
Contracts based on a US template sometimes state in the first line that they are dated “as of” a particular date. This probably means “with effect from” rather than “on”, and so probably don’t fall into the trap described above. However, if parties intend to rely on this when stating a date different to the signature date, and particularly if the agreement is made under English law, we would recommend using wording that is more explicit than “as of”, such as “takes effect from”.