As from that date, customers may have been invoiced by the transferee, employees may have been paid by the transferee, and accounting entries may have been made to reflect the purchase price payable for the assets.
Together, these factors may indicate that the beneficial interest in the relevant assets has passed from a legal point of view.
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.
For example, a reduction of share capital using the UK solvency statement procedure only takes effect in law when it is actually registered with Companies House.
So any attempt to rely on the reduction before registration would be ineffective.
In this situation, it may be possible to create a document after the event which recites what actually happened, and which records the key terms of the transaction.
The document should be dated when it is actually signed, but it can refer to the historic effective date of the transaction.