"Nunc Pro Tunc" (official and legal backdating)

The Meaning of "Nunc Pro Tunc"

By Brian Madigan LL.B.

The latin expression "nunc pro tunc" is an important latin legal term. It literally means "now for then". Actually, it is synonomous with official backdating.

It is quite clear that you can't backdate documents. If something was to be signed on 15 April, then two weeks later it is quite improper to insert the prior date leading others to believe that the document was so signed on 15 April.

There is a specific provision in the Real Estate and Business Brokers Act to prevent backdating.

However, that doesn't mean that backdating is not appropriate from time to time.

Let's consider the case where a limitation period is missed. The plaintiff makes application to the court on 30 April and indicates that the 15 April deadline was missed. The court accepts the proposition, agrees that the plaintiff should be able to proceed and issues a court order "nunc pro tunc" as of 15 April, permitting the claim to be litigated. Everyone knows about the backdating. It's not secret, surreptitious or fraudulent; it is quite clear, direct and in the open. The nunc pro tunc order enables official backdating to take place.

It is a corrective measure frequently used by the courts. Assume that a marriage is to be dissolved. The court issues a Decree Nisi, to be followed by a Decree Absolute in three months. The time passes, the applicant forgets to arrange for the Decree Absolute to be signed. The applicant then proceeds to remarry. This is a mess. In fact, the divorce was never finalized and the subsequent marriage was illegal. 

However, no harm done. The court could cure this problem by issuing a court order "nunc pro tunc", signed at the present time to become effective retroactively. The Decree Absolute is issued at the present time to become effective on the correct day, meaning the first marriage was dissolved and the second marriage was therefore legal.

It's just a little ingenuity by the courts.

The concept is not limited to court orders. Contracting parties may agree that something is amended now, effective, as of an earlier date. In that regard, making the amendment "nunc pro tunc" is the cure.

Let's consider the case of a real estate agent who needs to finalize some paperwork. Suppose a transaction is conditional on the home inspection to take place and the buyer has until Friday at 6:00 pm to waive the condition. The buyer's agent, home inspector and the seller's agent all attend for the inspection at 2:00 pm on Friday. The buyer's agent brings the waiver. The buyer gets caught in traffic and misses the attendance. The buyer's agent delivers the unsigned waiver and says "everthing is fine, I'll fax you a signed copy". At 4:00 pm everyone leaves. However, life gets busy, and the buyer's agent doesn't realize until Monday that he never got the waiver signed. 

The consequences of failing to waive in the time period mean that the agreement is void. So, he drafts an amendment and notes in that document that the waiver is effective on Friday before 6:00 pm, nunc pro tunc. The seller agrees and signs. The transaction does not lose its momentum. It's a clean and simple solution.

I have seen many complex methods attempted to patch up a agreement in such circumstances. Remember, if you simply delete the home inspection clause, then the buyer cannot sue on it later. Much better to leave it in, and waive it as of the correct time. An action would still lie against a seller who concealed a defect from a home inspector.

When you need to backdate something, just remember that the Romans did it first. It's OK, as long as you're not trying to trick someone.

Brian Madigan LL.B., Realtor 
416-745-2300
www.OntarioRealEstateSource.com