Category: Allgemein

Agreement Back Date

A client or, in the case of a colleague of the in-house lawyer (who will be considered a client for the purposes of this article), asks you to prepare a document, then your heart drops as he says „oh and it must be dated“ and gives a date that has already passed. Is it legal to comply with the application or should it always be rejected? Is there a legal way to try to achieve the required goal? The difficult question a lawyer must answer is to what extent he must inquire about the accuracy of his client`s statement that the document „only records a previous agreement“? Should he check whether this was indeed the case, or can he adopt an ostrich position and do the ostrich and not ask questions? Does the lawyer have an obligation to at least make reasonable efforts to confirm that he or she is being told the truth? Unfortunately, there is no simple or linear answer, and this depends on the ease with which the lawyer will defend his position by agreeing to forward the document if his judgment was wrong and if the authorities challenge the document, possibly in a criminal complaint against the client. What confirmation of the agreement preceding the client or company for which the client (and lawyer) works? Is the client a long-time customer who has always acted correctly in the past? Does the lawyer know the client well? These are questions that the judge or regulator will probably ask him if things go wrong and he will need convincing answers. While Juzek`s entrepreneurial spirit is worth an article of its own, I found it interesting to read, in juzek`s history research, that he reissued the labels in his instruments. They contained his own name, but a completion date about five years earlier than the actual date on which the instrument was completed. Courts will generally attempt to interpret contracts in such a way that they realize and do not destroy the commercial intentions of the parties (see z.B. the Supreme Court of Canada`s decision in McClelland- Stewart Ltd v. Mutual Life Assurance Co of Canada [1981] 2 SCR 6). Where the parties have clearly tried, without malice, to frame pre-controlled situations in a contractual framework, the courts often involve a necessary clause in the contract with respect to the settlement of previous cases, particularly where this has no negative effect on a third party or results in some misappropriation of taxes or filing fees.