Backdating -- When Something Isn't as Old as It Appears

I was 16 years old and performing a violin solo on live television for the first time. I stood in a cavernous cathedral holding my violin as  the organ played a mournful introduction. The music seemed to hang in the air as I prepared to play the violin solo in Tomasso Albinoni’s Adagio in G Minor. The historic cathedral added to the weight of scores of musicians who came before me as I played the centuries-old piece.

Except it turns out that the Adagio probably wasn’t as old as I was led to believe.

In the late 1950s, Italian musicologist Remo Giazotto announced that he had reconstructed Albinoni’s Adagio from a fragment of an early 18th-century Albinoni trio sonata manuscript found in a library in Dresden after World War II. That story had romance and plausibility, given the many lost manuscripts located during the aftermath of World War II.

Giazotto never produced the lost manuscript fragments. Today, most musicologists believe the piece was composed mostly or entirely by Giazotto in Albinoni’s style and invented or exaggerated the story to add romance to the piece and increase its popularity.

The Adagio is still beautiful, but if it was composed by Giazotto, its backstory changes. Sadly, a composition date, composer’s name, and even the story behind the composition can shape how people hear a piece, value it, buy it, publish it, perform it, and remember it.

Legal documents also have back stories, which can determine how the documents are viewed and interpreted. Contracts and legislation frequently start with a series of “whereas clauses,” which set the stage so the reader can understand the context in which the document was written. Most legal documents also have dates, which help to put the document in context.

But sometimes, as with the Adagio, the document isn’t as old as it says. Parties may backdate a document to place it in the proper context. But backdating also can given a false impression of the document’s significance. This article discusses backdating, focusing on contracts and when and how backdating can be used appropriately.

Backdating Isn’t Always a Dirty Word in Law

When people hear something’s been “backdated,” they may assume it’s illegal. That reaction is understandable given how backdating has been behind stories of fraud, tax problems, stock-option scandals, employment disputes, and efforts to cover up missed deadlines.

But backdating itself isn’t necessarily illegal. Backdating has been legal for so long that there’s a Latin phrase, nunc pro tunc (roughly translated to “now for then” and dating back to English common law), which describes backdated documents.

Sometimes, documents need to be backdated to be accurate. For instance, suppose that a vendor begins supplying its product under a proposed contract, only to later discover that the customer never signed the contract. Assuming everyone agrees, backdating the contract to the date on which the parties began performing under the contract is more accurate than inserting the actual date the contract is signed.

Or suppose parties enter into a contract “on a handshake.” They intend to sign a contract later, but in the meantime, business needs to get done. One of my clients needed to borrow $1 Million. They needed the money in less than 24 hours for a closing, and I thought all was hopeless. Much to my surprise, a private lender the client had a business relationship with wired the funds to the client.

There wasn’t time to prepare the loan paperwork before the wire transfer. So, the lender said we could complete it later. The $1 million promissory note I prepared was backdated to the actual date the funds were wired. It wasn’t just legal, it was necessary to properly reflect the oral agreement my client had made to repay the funds.

Mechanics of Backdating

We often see backdating in the form of “as-of” dates in contracts. The contract states it’s entered into “as of” a certain date, rather than on that date.

Use of the phrase “as of” should be a red flag that the date is not necessarily the date the parties signed the contract. Rather, it is a date on which the parties have agreed that their contract will be effective. The “as of” date may be before or after the actual date of signature.

Many contracts will define the “as of” date as the “Effective Date” (not to be confused with the execution date). Some contracts include an “as of” clause that makes the possibility of backdating very clear by saying something like the following:

“This contract is dated and is effective as of April 30, 2026 (the “Effective Date”), even though the parties may have executed it before or after s that date.”

Some contracts disclose backdating by including whereas clauses that explain why the agreement is being backdated. Here’s an example:

WHEREAS, on or about June 30, 2025, the parties entered into a non-binding Proposal describing the terms on which Buyer was to purchase certain supplies from Seller; and

WHEREAS, on or about July 15, 2025, Seller began selling supplies to Buyer under an oral agreement based upon the terms described in the Proposal; and

WHEREAS the parties now desire to enter into this Contract, to be dated as of July 15, 2025, memorializing the parties’ oral agreement and incorporating additional terms set forth in the Proposal;

This language makes it clear to anyone reading the written contract that it has been backdated and explains why.

Although it’s not technically backdating, ratification sometimes is a substitute for backdating. Ratification is most common in the corporate or business context when an action was taken without the required prior authorization by the board.

Backdating isn’t Always Legal

Sometimes, backdating can be illegal or even criminal. If a backdated document misleads someone or gives a false impression about when an action was taken, it may be fraudulent.

The parties’ intentions are also important when evaluating whether backdating is legal. If, in the vendor example above, suppose that the salesperson presented a contract on December 15 with products being supplied starting on February 1. Suppose that the customer signs the contract on January 15, but the salesperson asks the customer to backdate it to December 30 so that the salesperson can demonstrate higher sales for the calendar year and receive a larger bonus. That backdating is intended to mislead the salesperson’s employer.

In another example, imagine a landlord who doesn’t want to lease an apartment to a minority applicant. The landlord finds a non-minority tenant, backdates that tenant’s signature, and claims the non-minority tenant leased the apartment before the minority applicant’s inquiry. That backdating may be illegal because it was intended to mislead the minority applicant and to facilitate the landlord’s unlawful discrimination.

A document that’s backdated in order to obtain a more favorable legal result also is likely to be illegal. For instance, if a receipt for a payment made in January is backdated to December to allow for a tax deduction in the previous year, it may be illegal and possibly criminal if used to receive a tax benefit to which the payor wasn’t entitled. But, a receipt that’s backdated to reflect the ACTUAL date of a payment probably isn’t illegal, since the purchaser actually made the payment on the backdated date.

Under different facts, the backdated note in the $1 Million loan example above might have been fraudulent. Suppose the client had intentionally planned not to sign the promissory note because it had told its mortgage lender that the funds were an equity contribution that did not have to be repaid. In that instance, although it would be proper to document the loan via a promissory note, the underlying transaction could have been part of a plan to mislead the mortgage lender.

Tips for Evaluating When Backdating is Appropriate

There usually aren’t “bright line” tests for legal backdating. But parties should ask some questions when evaluating whether their backdating is legal:

1. Why are the parties backdating the document?

2. Could a third party be harmed by the backdating?

3. Is either party receiving a special benefit or avoiding a detriment due to the backdating?

4. Was the document backdated to comply with (or avoid having to comply with) any law or regulation?

5. Is the backdating disclosed in the document?

6. Would I be comfortable explaining to someone why the document was backdated?

If the answers to any of these questions create uneasiness, it’s probably because either the disclosure isn’t adequate or this isn’t an appropriate situation for backdating.

Conclusion

Giazotto’s story about the Adagio’s provenance didn’t just affect the audience. As a performer, the story made me feel like I was playing something that was not only old but sent a bigger message – it had been battered by war and survived.

Both in content (notes, harmony, rhythm) and context are important in music. Had Giazotto’s true role been disclosed, the piece’s true provenance, the music would have been no less beautiful, but it might have changed my understanding of the music and approach to the performance. Possibly, a performance would have been more authentic and even more compelling had I known the actual context in which the piece was composed.

The situation with legal analysis and legal documents is similarly based not just on content. Context also matters.

Backdating that’s disclosed can help put a legal document in its proper context. Likewise, backdating that’s concealed or done for the wrong reasons can mislead. When it comes to backdating, the key is to ensure that the document accurately and authentically reflects the context in which it was created.

© 2026 by Elizabeth A. Whitman

Any references to clients and their legal situations have been modified to protect client confidentiality.

DISCLAIMER: The content of this blog is for informational purposes only and does not provide legal advice to any person. No one should take any action regarding the information in this blog without first seeking the advice of an attorney. Neither reading this blog nor communication with Whitman Legal Solutions, LLC or Elizabeth A. Whitman creates an attorney-client relationship. No attorney-client relationship will exist with Whitman Legal Solutions, LLC or any attorney affiliated with it unless a written contract is signed by all parties.