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Lack of a prosecution does not mean a lack of legal consequences.
But even if there is no crime committed (for example, if the backdating was accidental so that there was no (“not my deed”) or the rule in Pigot’s Case such that in the eyes of the courts, the document is treated as though it does not exist.
Although in exceptional cases – where third party rights are not affected – the courts might be persuaded to treat the stated date as being the effective date, a situation we return to below. There are rare occasions when it may be permissible or even justified to do so.
The risks of backdating (or misdating) documents accidentally is multiplied in modern commercial transactions by the practice of getting all the documents signed before “completion” and then rushing around dating them afterwards.Probably the most difficult of the grey areas occurs where parties have a recurring commercial relationship which starts informally, but they later decide to document it and agree terms.In such cases, where the parties are not legally advised, it is absolutely not uncommon for the parties to sign the agreement and then backdate it to the start of the commercial relationship believing that this will “catch” all the prior aspects of their relationship.Legally speaking of course what they should do is put a provision in the contract which states that the terms of this contract shall also govern prior transactions which the parties shall henceforth treat as being regulated by those terms.However, where lay persons write contracts themselves or download a from the internet, often these legal niceties are lost upon them.