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ACCA LW公司法：Common Law

文章来源：ACCA官网

发布时间：2021-08-11 14:43

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Common Law

If a promoter enters into a pre-incorporation contract on behalf of a yet-to-be incorporated company and the company chooses not to adopt or ratify the contract,then is the promoter personally liable?Section 10 CA 2011 does not deal with that situation.That is largely left to the common law.

At the common law,a company cannot adopt or ratify a contract entered into prior to its incorporation by a person who professed to act as its agent on behalf of a non-existent principal.(See Kelner v.Baxter[1866].

However,under the Roman-Dutch common law a company can adopt a contract made for its benefit by a person acting as a principal(stipulatio alteri)and such a contract is binding on a company.In short,if a promoter signed the contract as an agent on behalf of the proposed company,the promoter is personally liable under the common law.However,if the promoter signed the contract as a principal(stipulans)for the benefit of a company,the promoter may not be personally liable provided certain conditions are met.The object of the agreement must be to secure some advantage for the unformed company.The benefit may carry with it some corresponding obligation.In that case,a company cannot take the benefit without the corresponding obligation.If a company accepted the benefit then it must notify the promisor.On such notification,the contract is binding on both the parties:the company and the promisor.

However,a company may not be entitled to sue on a pre-incorporation contract under the common law when someone acting as an agent on behalf of the proposed company made the contract.

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Duties and Liabilities of a promoter

The Companies Act 2011 is largely silent on the subject,merely imposing liability for untrue statements in prospectus.The duties of a promoter,thus,are to be found in the common law,not in the Companies Act.

The courts were alive to the possibilities of abuse that were inherent in the promoter’s position and in order to protect the investors laid it down that a promoter stands in a fiduciary position towards the company they promote.These duties,which to some extent,track the fiduciary duties of directors,have not been restated in the Companies Act 2011,as the directors duties have been,and that is why they remain regulated by the common law.

It is not unusual for promoters to sell their own property to the company they are promoting at a profit to themselves.This is permissible provided they provide the company with a board of directors,who are aware that the property the company is buying is the property of the promoters,and further that such board of directors can and do exercise an independent and intelligent judgment on the transaction.

Therefore,an exception to the rule had to be made.It was decided in Salomon v Salomon&Co,that disclosure to the entire membership would be equally effective.

Gower explains that the present position of law is that disclosure must be made to the company either by making it to an entirely independent board or to the existing and potential members as a whole.If the first method is employed the promoter will be under no further liability to the company.If the second method is adopted the veil of incorporation is in effect ignored and disclosure must be made in the prospectus,articles,or otherwise,so that those who are or become members,as a result of the transaction in which the promoter was acting as such,have full information regarding it.A partial or incomplete disclosure will not do;the disclosure must be explicit.A promoter cannot effectively contract out of his duties by inserting a clause in the articles whereby the company and the subscribers agree to waive their rights.

【ACCA LW公司法：Preliminary Contracts by Promoters】

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