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As Ken Adams has pointed out, if you want a contract to cover activity prior to its signature, you can just say so: This agreement applies to transactions between the parties on or after xxxx. The one area in which I relax this rule somewhat is in drafting corporate resolutions that are, as Kwall and Duhl characterize the situation, merely memorializing events that occurred at times in the past (for example, the continuation of named persons as directors and officers, the establishment of a banking relationship, etc.) and you’re just catching up on corporate housekeeping that may have slipped.
It’s often difficult — maybe impossible — to conceive of all the non-parties who could be affected by a transaction, so it’s non unlikely that there will be unintended consequences that won’t be cured by backdating a contract.
As to the first issue, the transaction between the FDIC and Weatherford couldn’t have retroactive effect unless the parties showed a clear intent for the transaction to be retroactive.
The court stated the general rule that “a written contract becomes binding when it is finally executed or delivered, unless a different intent appears.” Although the face of the main agreement in the FDIC/Weatherford transaction expressed an intended effective date of November 7, 2008, ancillary documents signed in connection with the transaction weren’t backdated, and the main agreement didn’t explain why it was backdated.
Thus, the FDIC and Weatherford could have made their transaction retroactive, but they didn’t document the deal clearly enough to do so.
The appellate court then considered whether, assuming that the FDIC/Weatherford transaction was retroactively effective (which it wasn’t), the retroactivity of that transaction had any legal effect on the transaction between the FDIC and FH Partners.
Current President of a Board signed as President when they were not?