Explain the map of limited liability?
The endeavors that evolved over the old ages have resulted in formation of concern administrations with different hazard appetency. From an limitless hazard pickings by enterprisers with exclusive proprietary and partnership houses to the limited liability joint stock companies at that place has been a revolution in the hazard position among concerns, attorneies and bookmans likewise. When portions are issued to investors, they are assured that their hazard is limited to the extent of the face value of the portions or upon liquidation wage a certain guaranteed sum in add-on to the face value of the portions – this depends on the type of limited company that is formed i.e. : company limited by portions or company limited by warrant. This means that the connexion between the stockholder and the company is merely to the extent of portions held by them and what dividend the portions would bring. This likely idea of making a bifurcation led to the development of the self-evident rule in English Corporate Jurisprudence of the construct of ‘corporate personality’ . Concurrently when the hazard of the stockholders are reduced entities covering with the company such as the creditors and providers have a greater hazard of non being repaid. That is the ground why on settlement of a company a hierarchy for refund by the company is made. It is indispensable that individuals who deal with such administrations need to be cognizant that they are taking a greater hazard. Therefore it is prescribed that the names of the company should propose the position of the liability of its stockholders. For illustration in UK, the jurisprudence requires a company ‘s name to include specified words, or their specified abbreviations, which in consequence province the type of company and that providers and clients may lose their moneys if they have traffics with this company. A private company ‘s name has to stop with the word ‘Limited ‘ or the abbreviation ‘Ltd ‘ . A public company ‘s name has to stop with the word ‘Company ‘ or the abbreviation ‘Co ‘ . In Germany, the letters GmbH are used, for‘Gesellschaft Massachusetts Institute of Technology beschraenkter Haftung‘ , that is for a ‘company with limited liability ‘ . In the US, ‘Inc ‘ denotes a limited liability company.
A company may be limited by warrant or by portions. The liability of the present or past stockholder of a company limited by warrant and without a portion capital is limited to the sum which he undertakes by the Memorandum of Association to lend to the assets of the company in the event of its being wound up. If the company has portion capital, the stockholder is apt to the extent of amounts unpaid on any portions held by him, and he may farther under the Articles of Association, as respects the remainder of the stockholders, incur an extra liability, which in the event of weaving up must be enforced by action. As per Section 74 of the Insolvency Act, 1986 a past shareholder/ member is non apt to lend if he has ceased to be a stockholder for one twelvemonth or more before the beginning of the weaving up, nor is the stockholder apt to lend in regard of any debt or liability of the company contracted after he ceased to the stockholder of the company. The stockholder would besides non be required to do farther parts in the instance of a company limited by warrant unless it appears to the tribunal that the bing stockholders are unable to run into their sum of parts.
In the instance of a company limited by portions the sum to which the stockholder is apt to the company is the outstanding unpaid part on the nominal sum of the portions. This rule extends to an English company runing in any legal power unless the stockholder has consented to being made liable more than the nominal value of the portions purchased by him. [ 1 ] Even in the instance of a signer to the Memorandum of Association the liability is limited unless there is a specific proviso in the Articles of Association of the company or there is the being of a particular contract. [ 2 ] The liability of a past stockholder can originate merely if he has exited within 12 months of the weaving up supervening. The liability of a stockholder for the nominal value of the portions to the company is a personal liability.
The doctrine of holding a limited liability for companies was to call up investings and to obtain economic systems of graduated table particularly with regard to public listed companies. The cost of financess was lesser than borrowing from the Bankss particularly in big scale operations. The liability clause in the Memorandum of Association of the company provides the needed information for a prospective buyer to estimate the hazards and whether it would accommodate his appetency. From the position of insolvency of a company, the personal assets of the stockholders were protected over and above the sum of the nominal value of the portions.
See whether the proposed statutory statement of directors’ responsibilities will be a helpful development?
The proposal for the statutory statement of directors’ responsibilities is found in the commissariats of the Companies Bill set out in the DTI White Paper [ 3 ] published on 17 March 2005 and is codified in the Companies Act 2006 which would go effectual from October 2008. The Act contains a statutory statement of managers ‘ general responsibilities, which are presently established in instance jurisprudence instead than statute. At present the regulations regulating managers responsibilities come from several beginnings such as the common jurisprudence and the Companies Act, 1985 sets out extra regulations. The 2006 Act sets out a new statutory statement of directors’ responsibilities described as ‘general duties’ replacing common jurisprudence and Part X of the Companies Act, 1985. there are seven general responsibilities in the new statutory statement which are as follows:
- A responsibility to move in conformity with the company’s fundamental law, and to utilize powers merely for the intents for which they were conferred.
- A responsibility to advance the success of the company for the benefit of its members. It has been clarified by the Government interpreter in the Lords and the Commons that the directors’ duties under the new proviso to advance the success of the company for the benefit of members should look at members as a corporate organic structure. Lord Goldsmith besides said that ‘success’ for a commercial company will normally intend ‘long term addition in value’ . Broadly the managers are required to seeinter alia:
- The likely long term effects of the determinations.
- The involvements of the company’s employees.
- The demand to further the company’s concern relationships with providers, clients and others.
- The impact of the company’s operations on the community and the environment.
- The desirableness of keeping a repute for high criterion of concern behavior.
- The demand to move every bit reasonably as between members of the company.
- A responsibility to exert independent opinion. There is no tantamount responsibility under the common jurisprudence in this respect. However the managers are presently under an duty non to shackle their discretion to move or take determinations. This may imply jobs particularly when a non executive manager has to trust on the positions of expert while geting at a determination.
- A responsibility to exert sensible attention, accomplishment and diligence.
- A responsibility to avoid struggle of involvement except where they arise out of a proposed dealing or agreement with the company. Presently if the manager allows his personal involvement or his responsibilities to another to struggle with his responsibility to the company ten unless the shareholders’ consent, the company can avoid the relevant contract and the manager must account for the net incomes to the company. There may besides be troubles where the manager sits in the board of more than one company.
- A responsibility non to accept benefits from 3rd parties. It may be equated to the current responsibility of the managers to move in the company’s involvements and the regulation covering with struggle of involvement.
- A responsibility to declare to the company’s other managers any involvement a manager has in a proposed dealing or agreement with the company. A manager is expected to declare involvements of which he is cognizant or ‘of which he ought moderately to be aware’ .
There are decidedly certain benefits of holding a statutory statement of directors’ responsibilities. The general responsibilities which managers owe to a company which are presently found in instance jurisprudence required lucidity to do it more consistent and easier to understand. Although the construct of a statutory statement of directors’ responsibilities is fresh, the range and nature of the responsibilities themselves are basically unchanged. It must be borne in head nevertheless, that the commissariats of the 2006 Act may hold its unwanted effects every bit good. How much power is given to managers in finding a company ‘s actions, and how much they have to listen to other stakeholders – employees, providers, creditors and so on – is a affair for legitimate argument. At the minute the proposed statutory statement would alter the jurisprudence, and could take to tonss of unneeded and dearly-won judicial proceeding. It could, for illustration, give rise to the feeling that managers can be sued by employees if they negligently fail to see employees ‘ involvements in finding a company ‘s actions, and non merely by the stockholders. It might besides take to the decision that a manager can ne’er accept an assignment if he might hold a struggle on one peculiar issue in the hereafter, which is non the instance now.
Directors will therefore want to reexamine the company damages and insurance agreements and see whether these demand to be revised in the visible radiation of the potentially increased hazard of stockholder judicial proceeding. Directors would desire to guarantee that in add-on to any award of amendss against them, the costs and disbursals of covering with and supporting stockholder judicial proceeding autumn within the range of the D & A ; O insurance offered.
Paragraph M and N of the Articles of Association of Uxbron Ltd provide as follows:
M – “The company secretary may non do any contract on behalf of the company for an sum transcending ?10,000.”
N – “The company adoptions shall non be allowed to transcend ?1 million without the mandate of the general meeting.”
Vivienne is appointed as company secretary. She makes a contract with Taxicars to engage several autos for the company for a period of one twelvemonth at a contract monetary value of ?50,000. Vivienne owns 25 % of the portions of Taxicars, although she is non involved in the direction of the company’s concern. Her involvement is non declared to Uxbron Ltd’s Board of Directors.
The Board of Uxbron Ltd passes a declaration empowering Wallace, the company’s Finance Director to take out a loan from the company’s bank, LSB Bank. This will take the company’s aggregative adoptions from LSB Bank to over ?1 million. LSB Bank’s attorneies have read Uxbron Ltd’s Articles of Association and have reported on them to LSB Bank. See whether the contracts with Taxicars and LSB Bank are adhering on Uxbron Ltd.
When the constitutional paperss i.e: Memorandum of Association and Articles of Association of the company are registered, it binds the company and its members to the same extent as if they have been signed and sealed by each member of the company. The Articles of Association must be regarded as a concern papers and should be construed so as to give to them sensible concern efficaciousness where building that inclines to ensue in feasible application of the Articles of Association of the company. [ 4 ] Members of a company are deemed to be cognizant of the contents and understand the Memorandum of Association and Articles of Association of the company. Persons other than the members, who have traffics with the company are affected with notice of all that is contained in the constitutional paperss, but they are non bound to do farther questions and may presume that its internal direction has been regular.
In the present instance there are two distinguishable issues to be considered loosely i.e: with regard to powers under the Articles of Association of Uxbron Ltd. breach of the ( I ) responsibilities of secretary and ( two ) responsibilities of managers. Each one shall be dealt with one after the other below:
When Vivienne contracted with Taxicars in her capacity as the company secretary, she has acted outside the range of the Articles of Association of Uxbron Ltd. The nature of the contract created by the Articles of Association of a company is provided in Section 14 ( 1 ) of the Companies Act. Such contracts bind the company and its members to the same extent as it they severally had been signed and sealed by each member and contained compacts on the portion of each member to detect all the commissariats of the Memorandum of Association and the Articles of Association. There has been important grade of judicial argument on whether the company and the members are bound by the Articles merely to the extent as if they had been signed and sealed by the members and non the company. In Hickman v. Kent or Romney Marsh Sheep-Breeders Association [ 5 ] Astbury J. has viewed that the Articles of Association of a company grounds a contract between the company and its members in their capacity, and with regard to their rights and duties as members.
The secretary is an officer of the company as per Section 744 of the Companies Act. He may besides be an employee akin to the executive manager thereby holding the double duty of a fiducial officer and executive employee. When the secretary is involved in the direction of the company it will often go on that he has existent authorization delegated by the Board of Directors to come in into commercial contracts on behalf of the company. It is ill-defined whether such authorization was given to Vivienne wherefore we shall assume in the negative. Second the secretary may hold implied authorization to come in into contracts as a consequence of constitution of class of covering. Third the secretary has certain apparent authorization for the Acts of the Apostless of disposal as opposed to direction. The Court of Appeal in Panorama Developments ( Guildford ) Ltd v. Fidelis Furnishing Fabrics Limited [ 6 ] held that, even where the authorization is non expressly conferred nor conferred by deduction through class of concern, the secretary however as the company’s main administrative officer has apparent authorization in twenty-four hours to twenty-four hours administrative affairs. Therefore in this instance the company was bound by the secretary’s act of telling hire autos, apparently for the company’s usage but in fact for his ain usage. Of class the issue would be perceived otherwise if there is misfeasance or breach of trust by the company secretary. A company is obliged to its members to follow with the footings of the Articles of Association in so far as they affect the rights and duties of the members as members. But it is to be kept in head that the Articles of Association trades with the internal direction of the company and therefore is a papers where given of constructive cognition can non be imputed on Taxicars for two grounds. One is as before stated the Articles do non adhere a 3rd party catching in good religion. Second because in the present instance it has been specifically mentioned that even though Vivienne held 25 % of the portions in Taxicars she did non affect in the direction of the company. In any instance the company can be bound by the dealing on confirmation by Board declaration. [ 7 ]
In Smith v. Henniker-Major & A ; Co ( A Firm ) Walker L.J opined that Section 35A should be interpreted in the visible radiation of the overriding policy aim, which is to rid of the demand for 3rd parties to seek the public registry, in order to find whether the corporate organ with which they intend to cover has authorization to adhere the company under a planned dealing. The dissenting sentiment of Carnwath L.J diluted the determination to anobiter pronouncement.
The secretary is ever appointed by the company under a written understanding stipulating conditions of service, including footings of office and notice of expiration. The conditions in the Articles of Association are besides adhering as against the secretary. The secretary being an agent of the company, to him applies rules of bureau and if any Acts of the Apostless are done beyond his authorization and the company is non bound by them so the company secretary is apt either as chief or on the land of breach of guarantee of authorization. [ 8 ]
The secretary as the retainer or agent of the company owes fiducial responsibilities to the company and is about surely accountable to the company for any secret net incomes [ 9 ] or similar additions made from the company. The secretary has a responsibility to move in good religion in the involvements of the company, non to move for any indirect individual and to avoid struggle of involvement. From this position, Vivienne should hold disclosed the involvement and besides left the affair in the custodies of the Board particularly when the dealing was for more than ?10,000. Not making so can take to a decision with other grounds if available to reason that Vivienne had personal involvement in the dealing.
In the 2nd case in the present instance, where LSB Bank provided further funding ensuing in a entire purchase of the company to be beyond ?1 million from LSB Bank, there is decidedly a divergence from the mandate required as per the Articles of Association of the company. Section 35A ( 4 ) empowers the members of the company to convey proceedings to keep the making of an act which is beyond the powers of the managers but non the public presentation of an duty that has already accrued. The subsequent sub-section preserves the liability of the managers or any other individual where the managers have exceeded their powers. The fact that the Articles was available with the attorneies of LSB Bank need non needfully intend that there was constructive cognition on the party that entered into the dealing. If the dealing was entered in good religion it is held that the dealing is valid and enforceable by 3rd parties. The consequence of Section 35A ( 2 ) ( B ) is to add a demand farther to knowledge on the portion of a individual covering with the company before he will be in bad religion. This demand is met where the 3rd party knows that the dealing is contrary to the constitutional paperss of the company and that the dealing is non for the benefit and involvement of the company and is for the single involvements of the managers or officer of the company. This will besides imply breach of responsibility of the manager or officer to move in good religion for the involvement of the company. The 3rd party to the understanding will be held in bad religion under Section 35A ( 2 ) ( B ) if they are holding notice that the managers are exerting powers for improper intent. [ 10 ] A manager who is apt on the land that he has authorised the dealing can be relieved of liability by the passing of a particular declaration specifically for the intent. [ 11 ] Whether this is possible will depend on whether an improper advantage has been obtained at the disbursal of the company. If there was improper advantage, any effort to give alleviation by shareholder’s declaration unless consentaneous will be invalid as representing a fraud on the minority. If there is carelessness, the company may if there is no fraud sign or excuse the act or skip and thereby go estopped from claiming amendss against the managers. [ 12 ] In Re Railway and General Light Improvement Co, Marzetti’s Case [ 13 ] it was held that the manager is bound to demo merely sensible diligence, and would non be apt for an improper payment sanctioned by him in good religion on the study of a finance commission.
Where the company is insolvent or in fiscal troubles with a looming danger of being insolvent, the stockholder acquiescence, even if consentaneous may be challenged by the murderer claiming that there is a fraud on creditors. [ 14 ] Proceedings may be taken against the managers in weaving up for carelessness, default, breach of responsibility and breach of trust.