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The parties’ intent for the transaction to have retroactive effect must be clear.
Merely stating a retroactive effective date in the main agreement may not do the trick.
The facts are a bit complicated, involving circumstances surrounding the failure of a bank and transactions in the bank’s loans preceding the failure as well as transactions of the FDIC as the bank’s receiver.
Here’s a simplified timeline: FH Partners made a demand on the debtor for payment of the loan and eventually sued the debtor and guarantors.
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.
The appellate court affirmed the trial court and stated: The law does not support the blanket conclusion that a retroactive effective date in a contract is only enforceable when the evidence demonstrates that the parties had agreed to the material terms of their contract as of the retroactive date.
On appeal, the Missouri Court of Appeals, Western District agreed.
(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.
For example, if you turned 34 on January 1st and you apply for insurance on July 4th, you might be considered 35 on your insurance application even though your next birthday isn't for almost 6 months. When you're deciding whether it's worth it to backdate or not, be sure to factor the extra premiums into your calculations.
It might be a year or two before you see any savings, so if you're not planning on keeping the policy for longer than that it may not be worth the trouble.