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.
The Court considered the construction of the whole policy and held that the exclusion clause took effect on the backdated date chosen by the parties.
To cure this deficiency, the company, and their solicitor, backdated the contracts of the newly hired employees to a date before the application to unionize.
The Law Society of Upper Canada Ontario Discipline Committee determined that backdating the employment contracts was for the purpose of misleading a third party, and suspended the solicitor for a period of twelve months.
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.
Furthermore, giving the written contract its own date simply reflects the reality of how the contract process unfolded, and it’s always good to have contracts track reality.