Pub Date : 2018-09-01DOI: 10.1093/HE/9780198811831.003.0002
A. Dignam, J. Lowry
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter deals with corporate personality and limited liability, two concepts that form the core of company law. It begins with a short historical background on how the process of corporatisation through charters evolved over time, including the emergence of the use of trust as an instrument to confer many of the privileges of incorporation. It then considers the case Salomon v Salomon & Co (1897) which decided on the legitimacy of small businesses with a corporate form, and offers some other good examples of the consequence of separate personality. The chapter also discusses the rights of members and shareholders with respect to ownership of the corporation, focusing on dispersed shareholdings and close companies.
核心文本系列的标题将读者直接带到主题的核心，为各个层次的学生提供集中，简洁和可靠的指南。公司人格和有限责任是构成公司法核心的两个概念。本文首先简要介绍了通过章程实现公司化的过程是如何随着时间的推移而演变的历史背景，包括使用信托作为授予公司许多特权的工具的出现。然后，它考虑了所罗门诉所罗门公司(Salomon v Salomon & Co)一案(1897)，该案件决定了具有公司形式的小企业的合法性，并提供了其他一些关于独立人格后果的好例子。本章还讨论了成员和股东在公司所有权方面的权利，重点是分散股权和封闭式公司。
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Pub Date : 2018-09-01DOI: 10.1093/he/9780198811831.003.0001
A. Dignam, J. Lowry
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter presents an overview of company law, first by considering the company’s place within the various forms of business organisation. To get some comparative perspective on the relative merits of each type of organisation, three criteria for judging them are discussed: whether the form of business organisation facilitates investment in the business, mitigates or minimises the risk involved in the business venture, and whether it provides a clear organisational structure. Using these criteria, three forms of business organisation are analysed: the sole trader, a partnership, or a registered company. The chapter also explains the importance of the memorandum as part of the company’s constitution, as well as the distinction between private companies and public companies. Finally, it outlines the benefits of forming a company as opposed to the sole trader or a partnership.
{"title":"1. Introduction to company law","authors":"A. Dignam, J. Lowry","doi":"10.1093/he/9780198811831.003.0001","DOIUrl":"https://doi.org/10.1093/he/9780198811831.003.0001","url":null,"abstract":"Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter presents an overview of company law, first by considering the company’s place within the various forms of business organisation. To get some comparative perspective on the relative merits of each type of organisation, three criteria for judging them are discussed: whether the form of business organisation facilitates investment in the business, mitigates or minimises the risk involved in the business venture, and whether it provides a clear organisational structure. Using these criteria, three forms of business organisation are analysed: the sole trader, a partnership, or a registered company. The chapter also explains the importance of the memorandum as part of the company’s constitution, as well as the distinction between private companies and public companies. Finally, it outlines the benefits of forming a company as opposed to the sole trader or a partnership.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"29 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78150406","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/HE/9780198811831.003.0008
A. Dignam, J. Lowry
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the constitution of the company, with emphasis on the articles of association. It first outlines the operation of the memorandum and the articles before turning to the law surrounding the contract of membership under s 33 of the Companies Act 2006. It then considers some elements of corporate theory in relation to the articles of association, contract between the company and the members, contract between the members, the question of who is entitled to sue to enforce the s 33 contract, and the issue of outsider rights with respect to the s 33 contract. The chapter also looks at the historical reforms proposed by the Company Law Review Steering Group for the Companies Act 2006 and concludes by analysing the effects of shareholder agreements on the statutory obligation of the company.
{"title":"8. The constitution of the company: dealing with insiders","authors":"A. Dignam, J. Lowry","doi":"10.1093/HE/9780198811831.003.0008","DOIUrl":"https://doi.org/10.1093/HE/9780198811831.003.0008","url":null,"abstract":"Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the constitution of the company, with emphasis on the articles of association. It first outlines the operation of the memorandum and the articles before turning to the law surrounding the contract of membership under s 33 of the Companies Act 2006. It then considers some elements of corporate theory in relation to the articles of association, contract between the company and the members, contract between the members, the question of who is entitled to sue to enforce the s 33 contract, and the issue of outsider rights with respect to the s 33 contract. The chapter also looks at the historical reforms proposed by the Company Law Review Steering Group for the Companies Act 2006 and concludes by analysing the effects of shareholder agreements on the statutory obligation of the company.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"30 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72952852","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/he/9780198811831.003.0011
A. Dignam, J. Lowry
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter deals with statutory remedies available to aggrieved minority shareholders, particularly their right to seek relief through a winding-up order on the just and equitable ground. It first considers the classic case of Ebrahimi v Westbourne Galleries Ltd (1973), which addressed the scope of the court’s jurisdiction under the just and equitable ground, and presents illustrations of the grounds which will support a petition under s 122(1)(g) of the Insolvency Act 1986. It also examines the issue of whether the principles promulgated in Ebrahimi extend beyond the statutory context of just and equitable winding-up by focusing on the case of Clemens v Clemens Bros Ltd (1976). In addition, the chapter gives examples of unfair prejudice, explains locus standi and procedural aspects of s 994 of the Companies Act 2006, and looks at other specific statutory rights available to aggrieved minority shareholders. Finally, it explains the Law Commission’s proposed reforms for the unfair prejudice provision.
核心文本系列的标题将读者直接带到主题的核心，为各个层次的学生提供集中，简洁和可靠的指南。本章涉及受害的小股东可获得的法定救济，特别是他们有权根据公正和公平的理由，通过清盘令寻求救济。本文首先考虑了Ebrahimi v Westbourne Galleries Ltd(1973)的经典案例，该案例在公正和公平的基础上讨论了法院的管辖权范围，并提供了根据1986年《破产法》第122(1)(g)条支持请愿的理由的说明。本文还以1976年克莱门斯诉克莱门斯兄弟有限公司案为重点，探讨了Ebrahimi所颁布的原则是否超出了公正和公平清盘的法定范围。此外，本章列举了不公平偏见的例子，解释了《2006年公司法》第994条的立场和程序方面，并探讨了受害的小股东可获得的其他具体法定权利。最后，阐述了法律委员会对不公平损害条款的改革建议。
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Pub Date : 2018-09-01DOI: 10.1093/he/9780198787709.003.0011
B. Hannigan
In addition to their fiduciary obligations, directors are subject to duties of care and skill. This chapter discusses the statutory standard of care, skill, and diligence; the content of the duty; and the duty to exercise independent judgement.
{"title":"11. Duty of care, skill, and independent judgement","authors":"B. Hannigan","doi":"10.1093/he/9780198787709.003.0011","DOIUrl":"https://doi.org/10.1093/he/9780198787709.003.0011","url":null,"abstract":"In addition to their fiduciary obligations, directors are subject to duties of care and skill. This chapter discusses the statutory standard of care, skill, and diligence; the content of the duty; and the duty to exercise independent judgement.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"45 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84440267","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/he/9780198811831.003.0013
A. Dignam, J. Lowry
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter deals with corporate management, focusing on those individuals who are responsible for making key strategic decisions within the company, namely the members of the board of directors. It begins by tracing the emergence of the professional managerial organ, with emphasis on the separation of ownership and control and the recognition of directorial autonomy. It then considers the relationship between directors and the general meeting, how directors are appointed, categories of directors, principle and policy governing directors’ remuneration, and the fiduciary nature of the office. The issues surrounding corporate governance are also examined, along with the approach of company law in the UK with regards to the structure and functions of the board of directors. Finally, the chapter discusses vacation, removal from office, and disqualification of directors as well as recent statutory reforms (the Small Business, Enterprise and Employment Act 2015) aimed at bolstering the disqualification regime.
{"title":"13. Corporate management","authors":"A. Dignam, J. Lowry","doi":"10.1093/he/9780198811831.003.0013","DOIUrl":"https://doi.org/10.1093/he/9780198811831.003.0013","url":null,"abstract":"Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter deals with corporate management, focusing on those individuals who are responsible for making key strategic decisions within the company, namely the members of the board of directors. It begins by tracing the emergence of the professional managerial organ, with emphasis on the separation of ownership and control and the recognition of directorial autonomy. It then considers the relationship between directors and the general meeting, how directors are appointed, categories of directors, principle and policy governing directors’ remuneration, and the fiduciary nature of the office. The issues surrounding corporate governance are also examined, along with the approach of company law in the UK with regards to the structure and functions of the board of directors. Finally, the chapter discusses vacation, removal from office, and disqualification of directors as well as recent statutory reforms (the Small Business, Enterprise and Employment Act 2015) aimed at bolstering the disqualification regime.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"51 6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87874334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/HE/9780198722861.003.0014
B. Hannigan
This chapter focuses on the extent of a director’s civil liability for breach of fiduciary duty and the liability of third parties involved in some way in that breach of duty. One of the most important issues is the extent of a director’s liability to account. Liability can range from accounting for secret profits to claims for equitable compensation and from personal to proprietary claims. Often, a claim will be affected by limitation issues. It may be complicated by the involvement of third party accessories. Mitigation through reliance on indemnity provisions, insurance and by applying to the court for relief is also considered. The discussion covers: breach of fiduciary duty, liability of third parties, claims for negligence, and managing potential liabilities.
{"title":"14. Directors’ liabilities for breach of duty","authors":"B. Hannigan","doi":"10.1093/HE/9780198722861.003.0014","DOIUrl":"https://doi.org/10.1093/HE/9780198722861.003.0014","url":null,"abstract":"This chapter focuses on the extent of a director’s civil liability for breach of fiduciary duty and the liability of third parties involved in some way in that breach of duty. One of the most important issues is the extent of a director’s liability to account. Liability can range from accounting for secret profits to claims for equitable compensation and from personal to proprietary claims. Often, a claim will be affected by limitation issues. It may be complicated by the involvement of third party accessories. Mitigation through reliance on indemnity provisions, insurance and by applying to the court for relief is also considered. The discussion covers: breach of fiduciary duty, liability of third parties, claims for negligence, and managing potential liabilities.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"34 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79047981","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/HE/9780198722861.003.0023
B. Hannigan
The majority of companies rely on commercial borrowing—loan capital—from high street banks and financial institutions. The lender will need security to cover the amount lent. This chapter discusses: company charges, fixed and floating charges, the approach to categorisation, registration of charges, and enforcement of a floating charge. The key concern for the creditor is to obtain the maximum security while the company is concerned to have the maximum freedom to act. The distinction between fixed and floating charges is considered and the characteristics of a floating charge are discussed with particular regard to charges on book debts. The chapter also considers the registration requirements with the registrar of companies.
{"title":"23. Loan capital—secured creditors and company charges","authors":"B. Hannigan","doi":"10.1093/HE/9780198722861.003.0023","DOIUrl":"https://doi.org/10.1093/HE/9780198722861.003.0023","url":null,"abstract":"The majority of companies rely on commercial borrowing—loan capital—from high street banks and financial institutions. The lender will need security to cover the amount lent. This chapter discusses: company charges, fixed and floating charges, the approach to categorisation, registration of charges, and enforcement of a floating charge. The key concern for the creditor is to obtain the maximum security while the company is concerned to have the maximum freedom to act. The distinction between fixed and floating charges is considered and the characteristics of a floating charge are discussed with particular regard to charges on book debts. The chapter also considers the registration requirements with the registrar of companies.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"30 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85923641","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-09-01DOI: 10.1093/HE/9780198811831.003.0015
A. Dignam, J. Lowry
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter looks at history and theory associated with corporate governance. It first considers Berle and Means’ concern about the separation of ownership from control, particularly managers’ lack of accountability not only to investors but also to society in general. It then traces the emergence of the Berle and Means corporation and examines major influences on corporate theory, citing concession theory, fiction theory, corporate realism, and aggregate theory. It also discusses economic theories that have influenced scholarship on corporate law.
核心文本系列的标题将读者直接带到主题的核心，为各个层次的学生提供集中，简洁和可靠的指南。本章着眼于与公司治理相关的历史和理论。它首先考虑了Berle和Means对所有权与控制权分离的关注，特别是管理者不仅对投资者而且对整个社会缺乏问责。然后，它追溯了Berle and Means公司的出现，并考察了对公司理论的主要影响，引用了让步理论、虚构理论、公司现实主义和总量理论。它还讨论了影响公司法学术研究的经济理论。
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Pub Date : 2018-09-01DOI: 10.1093/HE/9780198811831.003.0006
A. Dignam, J. Lowry
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses corporate borrowing through debentures or debenture stock, as well as fixed and floating charges that companies issue to creditors as security interests. It begins by outlining some important distinctions between the ability of small and large companies to raise loan capital. It then considers the priority of secured creditors and the registration requirements for charges, the issue of whether or not a fixed charge could be created over a company’s book debts, provisions for automatic crystallisation that converts the floating charge into an equitable fixed charge over company assets, and reform of security interests.
{"title":"6. Raising capital: debentures: fixed and floating charges","authors":"A. Dignam, J. Lowry","doi":"10.1093/HE/9780198811831.003.0006","DOIUrl":"https://doi.org/10.1093/HE/9780198811831.003.0006","url":null,"abstract":"Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses corporate borrowing through debentures or debenture stock, as well as fixed and floating charges that companies issue to creditors as security interests. It begins by outlining some important distinctions between the ability of small and large companies to raise loan capital. It then considers the priority of secured creditors and the registration requirements for charges, the issue of whether or not a fixed charge could be created over a company’s book debts, provisions for automatic crystallisation that converts the floating charge into an equitable fixed charge over company assets, and reform of security interests.","PeriodicalId":10779,"journal":{"name":"Company Law","volume":"52 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89805124","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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