Business law思维导图
U534561445
2023-05-16
Business
law
商法
Business law
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partnership
requirement
two or more persons, including company
carry on business on common (run business together)
intention to make profit
formality
no formality required, no need in writing
contribution not required
not limit on number of partners
receipt of share of profit is prima facie evidence
exclusion: repayment of debt, remuneration of employee
agreement re loss is not adequate evidence
authority to bind firm
actual authority
express
implied
apparent (ostensible) authority
excpetion
person knew partner had no authority
person did not know or believe they are dealing with a partner
duty
fiduciary duty to each other
account for secret profit and competing business
disclose information affecting partnership
liability
jointly liable for partnership debts
creditor may pursue one or all of partners
incoming partner
liable for debts occurring after join
outgoing partner
still liable after retire until notice given to creditors (London Gazette), unless creditor do know existence of outgoing partner
holding out
a person not a partner but show others he is, so he give credit to partnership business, he is liable
property
partnership property or partner's property - depends on intention
individual partner's creditor cannot execution on partnership property, but can apply court order charging partner's interests in firm
profits
shared equally unless agreed otherwise
cannot distribute before dissolution unless agreed otherwise
partner can assign rights to profit to others (only profit, not liability)
loss
same as profit proportion
operation
keep its books at place of business
partner may loan to partnership at 5%
no remuneration unless agreed
unanimous agreed issues
adding new partner
change in nature of partnership
alter partnership agreement
expel existing partner (unless agreed otherwise)
termination
if no fixed term, any partner may dissolve by notice
dissolution by bankruptcy, death
if a partner charge his share for personal debt, other partner may dissolve
by court order
a partner become permanent incapacity
a partners prejudicial conduct affecting business
willful or persistent breach of agreement
business can be carried on only at a loss
just and equitable reason
distribution
1. debt; 2. loan; 3. contribution; 3. profit
LLP
partnership like
individual income tax
partner cannot transfer ownership without unanimous consent
managed by partners
add new member need unanimous consent
company like
floating charge
register requirement
obtain certificate of incorporation before run business
unique name and company number
annual accounts
annual confirmation statement
details of appoint and remove member or information change of member
notice change of member within 14 days
people with significant control
need to register
directly or indirectly holds more than 25% of surplus assets on winding up;
more than 25% of rights to vote
rights to appoint or remove majority in management
significant influence or contract
termination
clawback provision
member withdraw property within 2 year before LLP go into insolvent and had reasonable ground know so, court may order member contribute the property
majority of member may apply for LLP to struck out
exception
doing business or change name in last 3 months
in insolvency proceedings
company
types
unlimited company
no need to publish accounts
limited by guarantee
non-profit organisation
public limited - PLCs
minimum 50,000, and a trading certificate
formation
promoter owe fiduciary duty to company - act in good faith
memorandum of association
signed by subscribers. need to submit to registrar
pre-corporation contracts
promoter personally liable even after company is formed
shelf companies
quick setup: change only members
register
change company name: provide a copy of resolution
constitution
article of association and resolution or agreement to amend it
contract between member and company
veil of incorporation
lifting event
fraud or avoid existing obligations
director and officers
type
de jure
de facto: not formally appointed
shadow: regularly influence acts of directors
alternate
nominee
represent particular sharehold
duty
insolvency
duty to shareholder replace by to creditor
casting vote
chairman have a casting vote in event of deadlock
written resolution
no need meeting but need unanimous approval
disqualification
2-15 years for unfitness
company secretary
appoint by directors
audit
turnover less 10 million and no more than 50 employees not need
special resolution 75% or more
entrenchment: require more onerous process to for alter articles
amendment adverse to minority is not sufficient grounds if it is made in good faith in company interest
ordinary resolution more than 50%
appoint or remove director
Bushell v Faith Clause director is also a shareholder, have right to vote
substantial property transaction
more then 100,000 or 10% of net assets
preemption rights
new share first offer to existing shareholders,
not apply if consideration is not cash
not apply to preference share
maybe disapplied by special resolution
transfer of share
private company governed by articles. model article give director right to refuse transfer
charge
must registered within 21 days
insolvency
individual voluntary arrangement
bankruptcy
debt more than 5,000
debtor will be discharged after one year
official receiver acts as trustee
company insolvency
receivership
fixed asset receivership
receiver possess assets securing loan
restructuring plan
75% unsecured debt agreed
moratorium
prevent creditor from taking action
administration and company voluntary arrangement
liquidation
sequences
expenses of winding up
preferential debt
secured by floating charge
unsecured debt
clawback
preference
within 6 months
within 2 years with connected person
intentional
undervalue
company
2 years -
been insolvent or become so as a result
if connected person, assume in insolvent
individual
5 years -
2 years no need insolvency
if connected person, assume in insolvent
defence
good faith
ring fencing
liquidator should set aside part of floating charge to benefit unsecured creditor
50% of 10,000
20%- above 10,000, max 800,000
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