A popular question which comes up during a consultation with a client when the drafting of commercial documents is discussed is, “what is the effective date of the transaction?” It is common practice that the effective date be expressly defined in the agreement, this is to indicate when the agreement will come into force and effect. The effective date of a transaction is of great importance especially when there are certain conditions which must be adhered to prior and/or after the date on which the agreement was signed by the relevant parties.
In some instances, the effective date of an agreement will either be set on an earlier or later date than on which the agreement was signed by the parties. It is often found that the effective date of an agreement is earlier than the signature date, which can also be referred to as backdating of an agreement. Despite the fact the aforesaid is permissible, the effect of backdating any agreement must not be overlooked by parties. Backdating any agreement means that the agreement binds the parties retrospectively from the earlier date.
Due to the retrospective effect of the agreement, it is necessary that the parties ensure that no representations are made during negotiation stages and/or signature of the agreement which they know to be untrue and/or not possible to adhere to. In cases where a misrepresentation is made and lead to certain losses, it can result in one party instituting civil procedures against the other. Parties must declare all facts known to them which may affect the transaction between the signature and effective date to avoid situations where a party to the agreement suffer losses which could result to civil and/or criminal liability. Furthermore, should all obligations and terms of the agreement be of such nature that they have been executed timeously and the effective date is earlier than the signature date, same must be properly recorded in the agreement which will only be signed at a later stage.
Although it is possible to backdate an agreement, it is advisable to ensure that parties timeously approach professionals who specialise in the drafting and implementing of commercial documentation to properly record the agreement between the parties.