'Law for Manager Essay\r'

'The comp procedure defend 1890 g everyplacens the relationship of the individuals and the remote world. And in respect of dissolution; if there is no checkmateship symmetry, the colleagueship act set come on the counterbalances and duties of the spouses. Such mightilys and duties (by act or agreement) whitethorn be varies by the keep back to of wholly renders. (S 19). ‘The relation which subsists betwixt somebodys carrying on a crease concern in super C with a eyeshot to addition. ’ chthonic S24 (5) ‘in universal’ means each partner has a verbalise in the starchy. The subdivisions argon scarcely apt(predicate) for their subscription unless the fusion agreement says otherwise.\r\nSay rise V Rope [1979] the wives ar non in the confederacy as no r destructioner suggested. ‘Person’ includes a corporation as well as individuals. Companies can enter alliance. ‘With a gather in to profit’ means certain organisations argon excluded. E. g. nine or society has no view to profit. Pitreavie golf game Club V Penman [1934] creditor challenge chthonian confederacy, held, Club’s motivation was to allow member to play non allocate in profit. ‘ communication channel’ included every trade, occupation and profession. Keith Spicer Ltd V Mansell [1970] Claimant sue the confederation for debt owned, held, there were no fusion so claim failed.\r\nBecause def carrying on commercial enterprise with no view to profit. It is important to determine whether a partnership subsists. For task reason. When playing in the trail of business, the comp either provide get the other partners to outsiders. S. 24 function to dish out in profit, worry, duties and faith since the arrangement is uberrimae fidei. S. 35 dissolution. If non acting in good faith thence the judiciary can dissolve the partnership. S. 28 concern to disclose, bond to render true depict of all things affecting the partnership to either partners or their sound representatives.\r\nLaw V Law [1905] †After the gross r up to nowue agreement there is a partnership plus that was non hidden from the account. plainly W had befuddled the advanced to avoid the quail as he takes the money while knowing disclosure had not made. Held: the agreement to sell conducts is avoidable. The dilute may be verbally, pen or in deed. Basic: A partnership is not a lodge since it is not in bodilyd; therefore it has no profound dis touch better from its members. Partnership may be implied by clear where a ‘person holds himself out’ as universe a partner.\r\nThen he will be reasonable for the debt incurred S. 4 Under the Rules of the imperious Court 1965, the partners may be sued in the squiffy’s let out. In KHAN & OTHERS V MIAH & OTHERS [2000] HL con unanimouslyed that partnership begins at the point of agreement, not the point when the trading starts. S. 5 each partner is an agent for the cockeyed, has the power to bind the firm by his conduct. The partner is agent as far as he’s acting on the firm’s ordinary activities.\r\nmercenary Credit Co V Garrod [1962] †G was dormancy partner and partnership agreement prohibited the sale of cars which P did. Held: G was bound by contract by virtue of S. qualification the contract was the doing of an ‘act for carrying on in the usual way business kind carried on by the firm. ’ S 29 (1) every partner must account to the firm for every benefit made by him from every transaction concerning the partnership, it property, give ear or business connection. Bentley V Craven [1853] C brought products at low scathe besides sell them to the firm at in large quantities rate. Held: C can’t retain the profit from these transaction and profit need to hand to the firms. C had utilize partnership asset, his position to depict profit. No person may be introducin g as a partner without the accede of all partners.\r\nConsent is implied by the other partner when they sign the article. all various concerning the running of the business, it must be resolved by a majority vote of the partners. If a of import change is proposed, acquires consent of all partners. S. 9 every partner is credible jointly with the other partner for all debts and obligation of the firm. The civil indebtedness form 1978 provided that examinement recovered against any person presumable jointly with some other, shall not be an action brought against the other. fear name. The firm’s name can’t be used to fraudulently imply that the business is identical with another business.\r\nA person’s business suffers in the equal name/ akin name may bring a ‘ handing over off’ action and obtain an injunction stop the defendant. ANNABEL’S (BERKELEY SQUARE) Ltd . VG. SCHOEK[1972] S. 30 If any partner without the consent of the others , carries on business of the same nature as and competing with that of the firm, he must account for and pay over all profits made in that business. In the absence of any agreement to the contrary, a partner can carrying a non-competing business which does not study the use of the firm’s property. Croft V daylight [1843] Mr Day uses the same trade name as the other in the same street.\r\nHeld: the injunction was give preventing the sweet firm from trading chthonian the name Day and Martin, the intention of the bleak firm was to shit the world. Under S. 34 it is a c riminal offence for a partnership to use the word ‘ hold in or ‘ltd’ in its name. Partnership agreement legal injury: Name of partners; Date on the start and end of the partnership; How profit and waiver being divided up; How much may each partner band monthly; At which bank the partner obligate its account; Principal asset; Submission of disputes to arbitrement; The partnership is b ased on agreement and they be free to alter them. S. 9 say the finding may be made unanimously; a partnership can’t be form for an illegal purpose.\r\nTypes of partnership: 1) General partner takes nimble role in the daily management and has sh are in the loss and profit. 2) Sleeping partner contri totallyes capital, take share in profit and liable for debt. provided he does not take part in daily management. 3) A partner by belongings out is not a true partner in the firm. He’s liable for pecuniary obligation of the firm. MARTYN V GRAY [1863] Under S. 14 a person can become liable for debt if he by word or conduct represent or other to represent that he’s a partner. E. g. his name on the firm’ letter. ) Salaried partner is an employee becomes ‘holding out’, he genuine salary and bonus depends on the profit. The 1890 exemplify does not deal with them. 4) LLP is a member infra the LLP Act 2000. Change of partners. The finis of the p artner may dissolve the partnership, but the agreement should allow the partnership lapse between the other partners. On the death of the partner, the estate is not liable for debts incurred after his death, even if the creditor was una contende of his death. S 17 (1) New partners are not liable for debts in the first place they joint the partnership. The right to sue a tender partner may be acquired by novation.\r\nWhere an agreement between the creditor; the new agreement and the old firm is made, and the original contract is therefore execute, and the new firm is accepting the liability for the debt. Byrne V Reid [1902] the claimant can introduce his son as partner when they are 21, held, other partner could not refuse because this is layout in the partnership agreement. The retirement of a partner: S. 17(2) He may be discharged from any existing liability by agreement (novation) between him, the firm and the creditors. Creditors are not office to accept novation and may sti ll regard the unemotional partner as liable for debt.\r\nThe retiring partner can get compensation from the other partner. Under S. 36, the retiring partner will be liable for debt if: 1)To person dealt before his retirement unless give written notice that he’s no drawn-out a partner or 2)To person who had no previous dealing with the firm before but know the composition before retirement. Unless the retirement person has given notice or had advertised in the London Gazette. Such notice is effective without consent. financial obligation for wrongs: 1)S 10 provides that any illicit act or omission of any partner acting in the course of the business or with authority of co-partners.\r\nAny loss or injury is caused to person which is not a partner. The firm is liable to the same cessation as the partner committing the wrong. This liability is jointly and several. 2) In HAMLYN V HOUSTON & Co [1905] a firm was liable to compensate a claimant where one of the partners had bribed a clerk employed by the claimant in exhibition to obtain information round a advert’s business. 3) The firm will be vicariously liable for the torts committed by its employees in the course of their employment. 4) Lloyd V Grace, Smith & Co [1912].\r\nAdvantages of partnership: Uphold of capital, being creditworthy, share expertise, share resources, share profit and flexibility. Disadvantages of partnership: Conflict, jointly and severally liability, share debt/loss. Differences: 1) A society is a type of corporation, registered under play along legislation. participation act 2006. The members of the companionship may bear limited liability. The come with’s debt belongs to the companionship not the shareholders, even if the fellowship is insolvent. 2) A partnership is ‘the relationship which subsists between persons carrying a business with a view to profit. ’ S 1 Partnership act 1890.\r\nIt’s an unincorporated association, h aving no check legal disposition from the partners. It may lease firm’s name but not corporate status. Partners are responsible for the acts of the firm. Partners induct unlimited liability and responsible for partnership’s debt. 3) LLP is registered at the companies’ house and received a certificate of incorporation. LLP is corporate bodies having separate in-personity from their members. LLP is personally liable to the third party for wrongful acts and might be liable in the insolvency. They are tax income as partnership, flexible, trading disclose, accounting and register similar to the federation.\r\nThey can also lend and plagiarize floating charge. Perpetual succession 1) A telephoner has perpetual succession; it is not affected by the death of the shareholders or change ownership of its shares. It continues to exist until it wound up by court/its members. 2) A partnership may be terminated on the death, retirement, bankruptcy or insanity of a pa rtner. 3) LLP is incorporated, so not affected by the death etc. of a partner. His share may be inherit but the beneficiary will not be able to take part in management, scarcely share in profit. A bon ton has separate legal personality from its members.\r\nSalomon V Salomon & Co [1897], Lee V Lee’s variant farm Ltd [1961], Macaura V Northern Insurance [1925], be V Coulsons [1916] †An actor shoot an audience in accident and claimant sue for damage in the partnership of the theatre (def) and theatrical company. Held: def is not in partnership with the actors company so not liable, neither of them are agent. Corporate entomb can be displace where there’s evidence of fraud/illegality. Gilford labour Co V Horne [1933], Daimler Co Ltd V Continental Tyre Co [1916] (War time), Chandler V Cape Plc. courteous law-compensation; Criminal law â€retribution/punishment.\r\nLift corporate velum to target parent company; but difficult, usually subsidiary. Ownersh ip; Separate ownership and management in a company; Small company has ownership and management in the hands of chief executive officer; in a partnership there’s unity of ownership and control. All partners have right to management. Accounts; caller-out accounts have to be laid before the general meeting, published and audited. They are open to human race inspection; Partnership accounts are not melodic theme to public inspection and no need audited; LLP account need auditor’s report and have be sent one-yearly to company’s house and to each member.\r\nTax liability; mass tax give on company’s profit, income tax by shareholders on dividend; Income tax is paid by partners as self-employed; LLP are tax as partnership. Shares. 1) Shares in listed companies re freely transferable. sequestered companies may impose restriction on transferring oh shares. Company can issue shares of different class with right attached to the shares. 2) A partners share is not freely transferable. New partner can be introduced with consent of all partners. In the absence of agreement, all partners have equal rights regarding the firm’s personal business and shares in capital, profit and losses.\r\n3) a member of LLP may provide by agreement or by given notice. (S. 43 of the 2000 act) The firm is not dissolving on the departure of the member so no shares in the LLP’s assets. Unless agreement provides otherwise.\r\nFormalities: 1) To form a company requires adjustment to be complied with payment of fees. During aliveness of the company there are administrative formalness to be complied. Certain information (change of article/ redundant resolution) need to submit to registrar. Information about a company’s affairs is readily available at company’s house or company’s registered office. This also applies to LLP. 2) The formation of partnership has no legal requirement to be complied. But the business names act 1985 a pplies the partnership being based on agreement between the partners. No requirement for partnership except those affecting the business. E. g. registration for VAT, return of profit from HMRC. The public has no right to access material concerning partnership affairs. 3) LLP required submitting an annual return and accounts to companies’ house and keeping accounts in accord with company legislation and daily records disclosing the financial position of the firm.\r\nThe wipe out of incorporation, it was established in Salomon that a registered company is a legal person separate from its members. This doctrine may be referred to as ‘the obscure of incorporation’. In general the law will not go behind the separate personality of the company to its members. Restated by Lightman J in Acatos and Hutcheson Plc V Watson [1995]. pattern of separate identity should be upheld unless there was a specific statutory provision or somewhat other contractual term or harsh law principle to the contrary.\r\nTherefore, when the company is incorporated the veil of incorporation comes down, giving the company a separate legal personality from its members. Fraudulent trading, S. 213 of the insolvency act 1986:\r\n1) If it appears that ‘any business of the company has been carried on with intent to s wavele creditors of the company or of any other person, or for any fraudulent. 2) Purpose ‘it may order that ‘any persons who were knowingly parties to the carrying on of the business in the modal value above mentioned are to be liable to crap contributions to the company’s assets as the court thinks proper. 3) S. 993 CA 2006 Criminal offences of fraudulent trading.\r\n3) High standard of proof. S213 of the IA 1986 provides that if in the winding up of a company it appears that the business has been carried on with the intent to defraud creditors or for any fraudulent purpose, the court, on the application of the liquidator, may make that any persons who were knowingly parties to the fraudulent trading shall make such contributions to the company’s assets as the court thinks fit. ) S214 of the IA 1986 provides that where the liquidator of a company can march that D prior to village, knew or ought to have cognise that there was no reasonable prospect that the company could avoid insolvent liquidation, and did not take steps to minimise the loss to creditors, the court may require D to make personal contribution to the company’s assets. Does not have to be dishonest, unlogical behaviour or negligence. Reproduce Marketing kitty Ltd [1989] Company become insolvent Ds film directors were not dishonest but failed to take action.\r\nHeld: the directors know that liquidation will occur, but fail to minimise loss during the disposal of assets. 5) S216 of the IA 1986 provides a wrong offence is committed. Directors or shadow directors during the 12 months prior to the company’s insolvent liquid ation who concerns himself during the next 5 yrs in the formation or management of the business with a name similar to the earlier company. S 217 imposes personal liability on such a person for the debts and liabilities of the second company. Ricketts V AD Valorem Factors [2003]. ) Under S15 of the Company directors disqualification Act 1986, a person who has been alter continue acting in the management of a company will b e liable for the debts of the company contracted during that period. He can be nefarious of a criminal offence under S13.\r\nLifting the veil 1) Disqualified director. S. 15 of the company directors disqualification Act 1986, where disqualified from being a directors in contravention of disqualification. D liable for all debts of the company which were incurred when he was so acting. The same applies to the person who knowingly acts on the book of instructions of a disqualified person. ) S. 122(1) of the Insolvency Act 1986 petition to wind up a company on the grounds above. That it would be just and equitable to do so. For obiter dictum the court might look into why the company was formed. 3) Company name: S349 companies act 1985. E. g. directors or secretary issues or signs on behalf of the company, a bill of mass meeting or order for goods under the company’s name incorrectly stated; they are liable if the company defaults. 4) Penrose V Martyr [1858]-a company’s secretary accepts a ‘bill’ drawn on the company’s name on which the name was incorrectly written.\r\nThe company defaulted. Held: The secretary was personally liable. 5) traffic certificate. Where no certificate has been obtained to modify a public company to commence trading, the directors commit a criminal offence and are personally liable to redress the other party for loss if the company defaults. However, ill to obtain the certificate does not affect the cogency of any contract. Judgement. It is difficult to be precise about the ci rcumstances when a judge will be alert to lift the veil of incorporation.\r\nIn Wolfson V Strathclyde Regional Council [1978] the COA laid down the principal that it is only permissible for a court to lift the veil where ‘special circumstances exist indicating that the company is a mere frontlet concealing the true facts. Gilford force Company Ltd V Horne [1933], Jones V Lipman [1962], DHN Ltd V Strathclyde RC [1978], Adams V Cape Industries Plc and Another [1991]. Judges lift veil to reveal fraud, sharp practice, oppression and illegality. Judge have move the veil in the: 1) Alien enemies. During war time, where a company is control by enemy aliens contract will be unenforceable by the company.\r\nA company registered in the UK may be an alien enemy if those in control to its affairs are alien enemies. Daimler Co. Ltd V Continental tyre and Rubber Co Ltd [1916]. 2) Where company is formed to enable persons to evade existing liability there’s abuse of company law. Gilford Motor Co Ltd Horne [1933] an ex employee was personally bound by a valid restraint of trade from approaching his former firm’s customers. He set up new company to solicit customers of his previous employer.\r\nHeld: The Company was a mere sham to cloak the wrong behaviour of the director and the court grant the injunction against the new company as well as against him. ) schoolmaster Denning as prepared to life the veil in Wallerstiner V Moir [1974] there was fraud surrounding the making of a loan to director. The company of which he was a director made a loan to another company which was his ‘puppet’, so the loan should be treated as made to him. 4) Interest of justice. Creasey V Breachwood Motors Ltd [1993] an employee successfully claimed unfair dismissal against a company to whom all the assets of the original company, owned by the same individuals, had been transferred.\r\nHowever, the corporate veil can only be throwd if there is some evidence o f familiarity or fraud. 5) Conflict viewpoint. In Creasey V Breachwood Motors Ltd [1994] the judge said ‘the power of the court to lift the corporate veil exists. The authorities provide little instruction as to the circumstances in which this power is to be exercised. ’ However, in Williams V Natural Life wellness Foods Ltd [1998] the HOL took the view that the corporate veil was sacrosanct and should only be lifted in the most extraordinary circumstances. ) In Trustor AB V Smallbon [2001] the def, a managing director had transferred substantial sums to another company. The Chancery Division was prepared to pierce the veil and recognise the receipt by that company as that of the individual in control, because it was used as a device or facade to conceal the true fact. However, in the absence of impropriety or fraud the courts will not pierce the veil. 7) Corporate manslaughter. Gross negligence manslaughter- is the veil lifted here? Is the veil lifted in eggshell w here corporate manslaughter is established?\r\n'