NB:这些是老师课堂上的笔记，若有缺失之处请见谅！若还没有笔记的同学就赶紧复制走并把中文的地方翻译成英文。祝大家本学期最后一次商法考试圆满成功！若有疑问可咨询！谢谢合作！完整版答案已有！

Case Study 1

Questions:

1.      List the main business organizations recognized by Scots Law.

2.      Given the fact that Lisa will be running the business herself and, for the time being, she is unlikely to be employing anyone, how would you classify her business?

3.      Identify two advantages and two disadvantages of the type of business organization run by Lisa

 

Case Question 1

The main business organizations recognized by Scots Law are:

Sole trader

Partnership

Limited liability

Private company

Public company

 

Question 2

①    Lisa is running a very small business, so the most appropriate form of organization is sole trader.

②    According to the Companies Regulation 1992, Lisa’s organization form does not fit for the condition of private company; such a private company is limited by shares or by guarantee and need only have on member.

③    As a result, we can judge that the organization form of Lisa’s company is sole trader.

 

Question 3

Advantages:

①    very basic legal requirements to comply with

②    Total control over his/her business and does not have to take into account the opinions of any shareholders.

③    It is the simplest form of business organization recognized by Scots Law

④    A sole trader is to all intents and purposes to be regarded as a self-employed person.

 

Disadvantages:

①    A sole trader may find it difficult to fund an expansion of the business because she/he can not offer shares to other parties in order to raise funds.(筹集资金)

②    If the business fail, the sole trader is said to have unlimited liability for any debts or obligations owed to third parties.

③    The inclusion of new partners would force a change in the nature of business, operation by converting it into a partnership or some other form of corporate body.

④    (in any case), A business expansion requiring a major injection of capital might entail a loss of control over the business because new members who are a source of new finance will almost certainly demand a say in the running of the business.

以上优、缺点各选两个答即可

 

Case Study 2

Question 1

What are the main differences between a traditional partnership and a limited liability partnership (LLP)?

Partnership

Unincorporated body

Partners have unlimited liability in respect of partnership debts

No need to be registered with registrar of companies and no need to supply formal documents

Regulated by Partnership Act 1890

 

LLP

Corporate body

Members enjoy limited liability in respect of LLP debts

Must be registered with the registrar of companies and certain documents must be supplied

Regulated by LLP Act 2000

 

Question 2

What are the main advantages for an existing partnership when it changes to a limited liability partnership?

①    The reason why many traditional partnerships try to translate to LLP is that the members can enjoy the limited responsibilities.

②    Further more, under the conditions of losing of privacy and greatering external regulation for the members, lots of traditional partnerships definitely hope to translate to LLP.(because of LLP…)

 

Question 3

What is the nature of the legal relationship between partners in firm and members of a LLP?

①    There exist a fiduciary relationship in law relationship between company and partners.

②    举例说明公司与成员之间的忠实关系 Pillans Brothers v Pillans [1908]

③    According to Limited Liability Partnerships Act 2000, section 6 regulations, there should be recognized to an agent’s relationship between members and LLP.

④    The general rule of the law agency that an agent (member) must always act in the best interest of his principal (LLP).

⑤    A member is not an agent of his fellow members.

 

Case Study 3

Question 1

What is a company’s objects clause?

①    Object clause 是存在于Memorandum of Association 之中的。

②    Object clause 通常是公司的成立目的并且列出了公司可以从事的商业或商事行为。

③    Before the reforms introduced by the Companies Act 1989, 公司无权与第三人签订任何商业协议，除非公司的object clause有明确规定。

④    假如公司 object clause 没有授权公司去从事某项商业交易时，则公司就没有行为能力（lack of capacity）去订立合同，并且第三方也不能抗辩（third party was no defence）.

⑤    Nowadays, many companies will have straight forward objects clauses which allow them to enter into any type of business of commercial transaction whatsoever.

 

Question 2

Does MacGregor have the right to withdraw from the project with Constructit?

①    Macgregor 没有权力撤销它与Constructit 之间的协议。

②    As a result of reforms introduced by the Companies Act 1989, Section 35 of the Companies Act 1985 now states that every contract is enforceable against the company.

③    No act done by a company may be questioned by the fact that it was beyond its legal capacity as stated in its objects clause in the Memorandum of Association.

④    Section 35B of the 1985 Act goes on to say that there is no necessity for a third party to check that a proposed contract is within the powers of the company as per the Memorandum of Association.

⑤    The Section 3A of the company Act 1985 now permits a company to have a simplified objects clause which means a company can enter into practically any contract whatsoever with third parties.

⑥    In situation where third parties dealing with the company here failed to act in good faith and where the Directors have exceed their authority, Section 35A, Companies Act 1985 raise the possibility that such an ultra virus (毒树之果) contract may be declared voidable by the company.

⑦    举例 Ashbury Railway Carriage & Iron Co v Riche [1875]

 

Question 3

Will the legal action by MacGregor shareholders be successful so that the company will be forced to pay out the expected bonuses?

①    根据Companies Act 1985, Section 14中的规定，公司当中最重要的两个文件分别是Article of Association & Memorandum of Association. 股东是否有权利分红（receive bonuses）完全取决于公司的Article of Association 的规定。

②    假使规定可以，那么股东可以根据Section 14 的规定去起诉并要求公司分红 （force payment of dividends）。但是，假如分红的规定只是随意的（discretionary）由公司决定，那么公司就有权暂缓（suspend）在今年分红。

③    举例（任选其一）：

⒈ Eley v Positive Life Assurance Co Ltd [1876]

2. Hickman v Kent or Romney Marsh sheep Breaders’ Association [1915]

3. Rayfield v Hands [1960]

4. Wood v Odessa Waterworks Co [1889]

 

Case 4

Question 1

List three differences between a private company and a public company.

 

Question 2

Can people simply decide to set up any kind of company and begin to trade immediately?

 

Question 3

What kind of legal status is a company said to have?

 

Question 4

What management body is responsible for the day-to-day running of a company?

 

Question 5

What is the most common type of liability for company members?

 

Keys

Question 1 (注意看上面的题目，只用选三个写就好）

①    private: only one director is required

public: there must be at least 2 directors

②    private: limited by shares or by guarantee need only have one member

public: there must by at least 2 members

③    private: there is no upper age limit for directors

public: directors must retire when they reach the age of 70

④    private: Audited accounts must be produced within 10 months of the end of the financial year

public: Audited accounts must be produced within 7 months of the year end (更为严格)

⑤    private: Trading can start as soon as a certificate of Incorporation is obtained.

public: Public companies can not begin trading without having been issued with a Section 117 certificate.

⑥    private: Company name must end in “Limited” or “Ltd”

public: Company name must end in “public limited company” or “PLC”

⑦    private: The Article of Association of a private limited company may provide for a right of pre-emption so that when a member wishes to sell or to transfer ownership of his share he must first offer them to existing member.

public: Members must be free to transfer their shares as they please.

⑧ private: There is no minimum capital requirement

   public: A public company must have minimum issued share capital of at least ￡50,000.

⑨ private: The shares can not be traded or listed on the other exchange.

   public: Shares can be listed on the stock exchange and can be traded.

 

 CASE 4中的最后四题：

提醒：大家注意看清题目和问题，把中文翻译成英文，若不放心最好再多参考别的同学的笔记！谢谢合作！

 

Question 2

① 根据 Companies Act 1985 的规定，一家新成立的公司必须向Registrar of Companies 登记并提交两个最重要的文件，分别是Article of Association & Memorandum of Association。

以便于提供公司的性质与营运状况的重要信息（provide important information about the nature of the company and how it will be run）.

②  直到公司成立之前，公司并不具备法律资格，因此也无法与第三方签订任何合同。因此公司不能简单地在设立之后，立即与第三方进行交易。

③    一家新公司必须取得Registrar of Companies 所颁发的 Certificate of Incorporation 并且 public limited company 也必须取得Section 117 certificate 之后才能进行商业交易。

 

Question 3

①     当一家公司成立的时候，意味着该公司享有separate corporate personality 的资格。

②     而separate corporate personality 意味着一家公司是一个具有法人资格的企业 （artificial legal person）, 并且与成员的责任区分开来，成员承担的是有限责任。

③     举例说明（情况、法院判决、与本题的联系）                      

Salomon v Salomon & Co Ltd [1897] 课本 217-218页中有该案例

 

Question 4

The Board (董事会) is the management body for the company’s day-to-day business.

 

Question 5

①     The most important type of liability that company members will be subject to is that of limited liability.

②     The term “limited” relates to the fact that the members of the company enjoy “limited liability” status.

③     This means that a member’s individual liability is confined solely to the amount unpaid, if any on their shareholding in the company.

④     In companies limited by guarantee, the members agree to be liable to the company’s creditors for an agreed sum should the business fail. Company limited by guarantee are running as private companies.