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As from that date, customers may have been invoiced by the transferee, employees may have been paid by the transferee, and accounting entries may have been made to reflect the purchase price payable for the assets.Together, these factors may indicate that the beneficial interest in the relevant assets has passed from a legal point of view.

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Even though the transaction may have already happened in substance, it’s important to find out what the other legal consequences may be, so that steps can be taken to mitigate the risks.

These two general areas mean that some legal due diligence should be carried out to identify and address areas for corrective action.

Lawyers who were trained in commonwealth jurisdictions may have an ingrained concept that backdating a document is generally improper, if not illegal.

This is reflected in the Linklaters article Execution of Documents: Five Common Questions Answered, which offers the following advice for in-house lawyers: “(i) contracts may only be backdated, absent fraud, in circumstances where an original form has been lost or where terms have been fully agreed but signatures have been left to a later date and (ii) deeds may never be backdated.” Unfortunately, the article offers scant authority, and a search on Google reveals little else on the subject from the commonwealth world.

Drafting and executing a document after an event occurs, but in a manner that accurately reflects the date on which the event transpired, is a permissible form of backdating.

This is backdating that memorializes, something the United States Court of Appeals for the Seventh Circuit has recognized as a legitimate practice.

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.

The document should be dated when it is actually signed, but it can refer to the historic effective date of the transaction.

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.

For example, the selling and buying companies participating in a business transfer may agree between themselves to treat the transaction as if it happened at the previous year end.

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