business law Flashcards
what are the 2 available business structures?
- unincorporated entities
- incorporated entities
examples of unincorporated entities
- sole trader
- partnership
examples of incorporated entities
- private limited companies
- unlisted public limited companies
- LLPs
- INCORPORATED ENTITIES HAVE A SEPERATE LEGAL PERSONALITY
sole traders - key info
- individual owns the business and makes all decisions
- few registration formalities
- unincorporated entity- no seperation between individual and business
- unlimited liability- personal assets at risk
- business ceases upon death or retirement
general partnerships key info
- partnership act 1890 provides default rules
- 2 or more people carrying on a business in common with a view to a profit
individual partners own and manage the business (self-employed) - unincorporated entity (no separation between individual and business)
- unlimited liability - personal assets at risk
- needs to be trust- if one leaves, the other will be left with the debt
definition of general partnership
2 or more people carrying on a business in common with a view to a profit
limited partnerships- key info
- limited partnership act 1907
- not widely used
- must have at least one general partner with unlimited liability for partnership debts
- other partner’s liability is limited and conditional on not being in control (ie managing the partnership)
- must register with companies house
what is the veil of incorporation?
company and its members are separate from each other
they are separate legal entities
private companies limited by shares
- companies act 2006
- widely used to benefit from limited liability
- incorporation formalities and ongoing (public) filing requirements at companies house
- mandatory constitutional documents
- directors manage the business, shareholders own the business
- debt or equity finance
unlisted public companies limited by shares- key info
- similar to private limited companies but shares can be issued to the public if SHARE CAPITAL REQUIREMENTS are met:
– the aggregate nominal value of all shares issued is at least £50k and
– each share is at least one quarter paid up - may apply to list shares on public exchange such as London stock exchange
- more heavily regulated, so less attractive
limited liability companies- key info
LLP act 2000 default rules- express LLP agreement advisable
- hybrid between partnership and limited companies
- incorporation formalities and ongoing public filing requirements at companies house
- partners manage and own the business
- finances by capital injection/loan from partners or bank loans
professional conduct and ethical issues - duty to avoid conflicts of interest
- who is your client? - the business or the individual?
- you can act if there is a substantially common interest AND
– clients give informed consent
– safeguards to protect confidential info are put in place and
– you are satisfied its reasonable to act
prof conduct and ethics- duty of confidentiality
- duty extends to current and former clients
- cant disclose unless permitted by law or client consents
prof conduct and ethics- money laundering
- what checks do you need to do on clients?
- what transactions might indicate money laundering activity?- geographic inconsistencies and cash structuring, use of third parties, secrecy
default rules for general partnerships (gp)
- ordinary matters decided by majority, but unanimity needed to change nature of partnership
- loans from partners carry interest at 5%
- partners have joint liability for debts incurred while partner- profits and losses shared equally
partner duties (gp)
- duty to provide true accounts and full info
- duty to account for secret profits
- duty not to compete
finances- money in (gp)
partners inject capital to cover initial operating costs
- capital can be cash or other assets
- partnership agreement should set out capital contributions made and any obligations to contribute capital in future
- partnership agt may also offer interest on capital contributions
- partners can lend money to the partnership and will receive 5% interest
Finances- money out (gp)
partnership agreement can modify the partnership act 1890 that says
- partners share capital and income equally
- partners receive “drawings”- partnership art should specify amount
dealings with third parties (gp) - 3 types of authority
- express actual authority- express permission or instruction to do something
- implied actual authority- implied by regular course of dealing to which partners haven’t objected
- apparent authority- partner appears to third party to have authority, but dont have it
apparent authority (gp) - when is a partnership liable to a third party
- transaction relates to the business of the kind carried out by the partnership
- transaction if one for which a partner in such a firm would usually be expected to have authority
- other party didn’t know partner didn’t have authority subjective
- other party deals with a person they know or believe is a partner subjective
dissolving a general partnership- how?
- by notice from any partner in a partnership at will
- automatically on expiry of fixed term/purpose, death, bankruptcy, or charging order
- automatically on business becoming illegal (can’t be disapplied)
- by the court in certain circs
dissolution by notice/agreement (gp)
- default position in a partnership at will- dissolution by any partner at any time
- this is impractical and makes partnership at the whim of a disgruntled partner
- recommendations for partnership agreement
– specify notice period
– notice must be given in writing
automatic dissolution- expiry of fixed term/purpose
Default position: a partnership will dissolve automatically
on the expiry of a fixed term or conclusion of a fixed
purpose (s.32)
- if business continues after expiry it is a partnership at will
expulsion of a partner
default position is no majority can expel a partner unless the PA permits it
- would have to be dissolved and start again
dissolution by the court- when?
- Partners can apply to the court for dissolution in certain
circumstances (s.35): - Partner permanently incapable of performing duties
- Partner’s conduct is prejudicial to business
- Persistent breach of Partnership Agreement
- Business can only be carried on at a loss
- When it’s just and equitable
consequences of dissolution
realise partnership assets
- sell assets or
- sell business as a going concern
distribute proceeds
- creditors paid in full
- partners loans repaid plus interest
- partners capital entitlements
- surplus shares in accordance with PA
ownership of partnership assets
- PA should specify which belong to partnership and which belong to partners personally
- ownership depends on intention of partners
- property owned by a partner but used by the partnership doesnt automatically become partnership property
the process of incorporating a private limited company
2+ members
file documents
- memorandum
- form IN01
- articles
- fee (£50)
certificate of incorporation issued
- registrar of companies issues certificate and placed notice in The Gazette
- LIMITED LIABILITY EXISTS FROM THIS DATE
-post incorporation formations
- directors meeting to sort operating formalities
- disclosure requirements (name, number, office etc)