There are a number of things that can go wrong if they sign a confidentiality agreement with a retroactive date. We`re going to see Biggies here. CONSIDERING that the parties now wish to conclude this contract, which dates from 15 July 2018, referring to the oral agreement of the parties and taking into account the additional conditions provided by the proposal; The law does not support the general conclusion that a retroactive date in a contract is enforceable only if the evidence proves that the parties agreed to the essential terms of the contract at the time of the retroactive date. However, where a contract is ambiguous as to its entry into force, the absence of a retroactive date declaration and evidence that the parties did not accept the essential terms of the contract on the alleged retroactive effective date are relevant considerations for resolving the ambiguity. We cannot therefore conclude that the court relied on these facts to resolve the inconsistency between the FDIC/Weatherford agreement and the termination of the participation agreements, in order to find ”a lack of mutual consent” regarding the entry into force of November 7, 2008. Consider your situation and sit in the other shoes of the parties so that you are not knocked out or rewarded with the room. Remember that you have already disclosed the information and that the recipient party has no contractual obligation to sign a confidentiality agreement at that time. Before writing or signing a retroactive agreement, do some research, choose your words carefully and exercise caution. Well done, they can be very useful. Bad execution, however, and you might find yourself in a world of pain. Another option is to design your confidentiality agreement as usual, but include an ”efficiency of agreement” clause.
In principle, this language indicates that the validity date controls the agreement as opposed to the date of signature. The ”Effective Date” clause seems simple enough, but you have to be careful not to just insert it into your contract. Read the confidentiality agreement in its entirety and consider what logically cannot apply to the retroactive validity date. Although there are a number of other problems that can result from an agreement with a retroactive date, these are among the most common, as they are often overlooked during design. Some treaties make it clearer than others. Many contracts define the date ”ab” as ”validity date” (not to be confused with the execution date). Others will even have an ”as of” clause that will make the possibility of a retrodation even more obvious by saying that even if a transaction is retroactive between the parties, it is unlikely to be the same if non-parties are involved. It is often difficult – perhaps impossible – to imagine all the non-parties that might be affected by a transaction, so it is not unlikely that there will be unintended consequences that will not be cured by a treaty backdation. When drafting the retrodated confidentiality agreements, make sure that none of the obligations can be fulfilled or fulfilled after the contract is signed.
Nunc pro tunc, which means ”now for the time,” is most often seen in court decisions.