Business Law and Practice Flashcards
What is the effect of the veil of incorporation?
Treats the business as a separate legal entity so the company itself is responsible for an debts to creditors
What would happen if the veil of incorporation was lifted?
The shareholders would be personally liable for the debts of the company.
What is a partnership?
The relation which subsists between persons carrying on a business in common with a view for profit.
How many people are required to form a partnership?
Two or more.
What is the requirement for carrying on a business in common?
Business is considered buying and selling goods or providing services for a fee. The people must be carrying this out together with the same right to make decisions about the business and its profits
What is the requirement of intention to make profit for the formation of a partnership?
The parties must have an aim to make a profit from the business
Is a partnership agreement a requirement for the formation of the partnership?
No, however most partnership practices have one
What needs to be filed at Companies House for the formation of a partnership?
Nothing
What would a court look at as to whether a partnership has been formed, with the exception of the 3 main points?
If a party receives a share of the profits of a business that is evidence that a partnership exists
When does the presumption of a partnership existing where a person receives a share of the profits not apply?
If the funds were repayment of a debt, salary, payment to surviving spouse of a partner
Are partners required to contribute money towards the business in order for a partnership to be formed?
No although many do
What is the legal limit on the number of partners allowed in a partnership?
None - there can be unlimited partners.
What personal liability do partners have to a partnership business?
Unlimited for debts of the partnership
Does a partnership form a separate legal entity?
No
What does the Partnership Act rules provide regarding authority of partners?
Every partner in a partnership are acting as an agent of the firm and the other partners.
What is the premise under agency law, regarding how an agent can bind a principal?
An agent can only bind the principal if the agent acts with authority
What 2 types of authority does the Partnership Act provide?
- Actual Authority
2. Apparent Authority
What is actual authority as provided by the Partnership Act?
A firm will be bound by any act that is done in a way showing intention to bind the firm or by any person actually authorised by the firm to undertake the act
What is apparent authority as provided by the Partnership Act?
The act of a partner carrying on in the usual way business of the kind carried on by the firm will bind the firm and the other partners.
When will apparent authority not be presumed under the Partnership Act?
Where the partner had no authority to act
The person whom the partner was dealing with either: knew the partner had no authority to act, or believe the person they were dealing with was a partner
What is the test as to whether a partner was acting with apparent authority under the Partnership Act?
Would a reasonable third party think a business of this kind usually would do this act and what authority would a reasonable third party expect a partner in such a firm to have?
What is the recourse of action if the third party does not have authority to enter into a contract and has?
The partner will be personally liable to the third party as the partner is proportion to enter into a contract with the third party with the authority to do so.
What would be the recourse of action if a partnership is unable to pay its debts?
The partners will be personal liable to repay any debts over and above that of partnership property.
How will the liability in a partnership be split?
Joint - the creditor can choose to pursue one or all the partners for their debt
When would an incoming partner be liable for debt?
They will not be liable for any debt incurred prior to them becoming a partner.
What is required to appoint a new partner?
Consent of all the existing partners
Can partners dismiss another partner?
No, unless it is expressly agreed e.g. in the partnership agreement.
What debts will a retiring partner be liable for?
Any debts or obligations before they leave unless agreed otherwise and any further debts unless notice is given.
How can a retiring partner stop liability being incurred for future debts?
Retiring partner must give notice of their retirement. They must give this to all existing creditors and place a notice in the London Gazette for new customers
If a person holds themselves out to be a partner of a firm, even though they are not, will the partnership be bound?
The person may be held as though they were a partner to any third party who has given credit to the partnership
Upon dissolution of a partnership, who will property belonging to a partner be distributed to?
Remain property of the partner
Upon dissolution of a partnership, what happens to property given by a partner to the partnership?
Becomes partnership property and constitutes a capital contribution to the firm by the partner
How does the Partnership Act define partnership property?
Property originally brought into the partnership or acquired for the partnership purposes in the course of the partnership business. Whether the property bought with partnership money is partnership property depends on the intention of the parties.
Can a partner dispose of partnership property?
No, the property belongs to the partnership and not to the individual partners
How is capital and profits shared between partners in a partnership?
Equally unless there is a provision in the partnership agreement against this
If partners contribute unequally from the outset of a partnership, how is capital and profits shared?
Equally, unless the partnership agreement states otherwise
Do partners have a right to distribution of the firm’s profits?
No not before dissolution, except as agreed by the partners.
Can a partner assign their right to share profits in a partnership?
Yes, however the assignee cannot interfere with the running or management of the firm or liable for the firm’s obligations.
What is required for a partner to assign their share of the profits and they wish to acquire rights?
Would need to be approved by all parties
How must partners contribute towards the losses of the partnership?
Equally unless the partnership agreement states otherwise
What is the requirement regarding the partnership books?
Must keep them at its place of business and each partner has the right to inspect and copy them as the partner sees fit.
Is a partner entitled to interest on their capital contribution?
No.
Is a partner entitled to interest on any loan made to the partnership?
Yes, at the rate of 5% per annum
Is a partner entitled to remuneration for working at the partnership?
No, unless the partnership agreement confirms otherwise
What does the Partnership Act confirm regarding management of the business?
Every partnership has an equal right to take part in the management of the firm. There might be provisions in a partnership agreement as to what partner will carry out what role.
How many votes does each partner have?
One - One partner = One vote
How are decisions usually made in a partnership?
By a majority vote of the partners.
When would a unanimous vote be required of all partners in a partnership?
Admission of a new partner
Change in the nature of the partnership business
Alteration to the partnership agreement
What are the 4 duties of the partners?
- Fiduciary Duty
- Duty to Disclose
- Duty to Account for Secret Profits
- Account for Profits of a Competing Business
What is the fiduciary duty owed in a partnership?
A partner is required to act in good faith and to exercise their powers for the benefit of the partnership as a whole. The relationship is one of trust and confidence.
What is the duty to disclose owed in a partnership?
Partners are under a liability to disclose information on all things affecting the partnership to any partner of their legal representatives
What is the duty to account for secret profits owed in a partnership?
Every partner must account to the partnership for any profit or benefit obtained without the consent of the other partners from any transaction affecting the partnership.
What is the duty to account for profits of a competing business in a partnership?
If a partner, without the consent of the other partners, carries on any business in competition with that of the partnership they must account to the partnership for all profits they made in that business.
What are the 9 ways a partnership can be brought to an end?
- Dissolution by Expiration
- Dissolution by Notice in Partnership in Will
- Dissolution by Bankruptcy, Death or Charge
- Dissolution due to Illegality
- Permanent Incapacity
- Prejudicial Conduct
- Wilful or Persistent Breaches of Partnership Agreement
- When Business Can be Carried on Only at a Loss
- Just and Equitable Basis
What is the process of dissolution of a partnership by expiration?
If the partnership agreement provides the partnership is for a certain term, it will be dissolved upon expiry of the term.
If a partnership is dissolved early, what happens to the partners premiums paid?
The court might order repayment of the premium
What is the process of dissolution of a partnership by notice in partnership by will?
Any partner can give notice to the other partners for their intention to dissolve the partnership.
If a partner gives notice of dissolution of a partnership, when will the dissolution take place?
On the date set out on the notice or if there is no date, the date of the communication on the notice.
What is the process of dissolution of a partnership by bankruptcy, death or charge?
A partnership is dissolved by the death or bankruptcy of any partner.
What is the effect if a partner charges their share of partnership property for a personal debt?
Dissolution of the partnership at the partners option
What is the process of dissolution of a partnership due to illegality?
A partnership will be dissolved if an event occurs which makes it unlawful for the business to be carried on or for the partners to carry on the partnership.
What is the process of dissolution of a partnership due to permanent incapacity?
If a partner becomes permanently incapable of performing their party of the partnership contract, the other partner(s) may apply to the court for dissolution
What is the process of dissolution of a partnership by prejudicial conduct?
If a partner has been guilty of conduct that would prejudicially affect the carryon on of the business a partner may apply to the court for dissolution.
What is the process of dissolution of a partnership by wilful or persistent breaches of partnership agreement?
If a partner wilfully or persistently breaches the partnership agreement, the other partner may apply to the court for dissolution
What is the process of dissolution of a partnership when a business can be carried out only at a loss?
If the partnership can only be continued at a loss, it should be dissolved
What is the process of dissolution of a partnership for a just and equitable basis?
If circumstances have arisen which means it is just and equitable for the partnership to be dissolved, a court may dissolve the partnership.
What is the effect of dissolution on the partners authority?
Each partner still can bind the firm and will continue to wind up the partnership and to complete transactions begun but unfinished at the time of dissolution
What will partnership assets first be used for upon dissolution?
To pay off partnership debts
If the partnership assets are insufficient to pay off partnership debts, what happens?
The partners will be personally liable for any shortfall
If the partnership assets are sufficient to pay off partnership debts, what will happen?
Any advances made by the partners will be repaid and then used to return the partner contributions. The remaining will then be divided amount the partners in the same proportion as profits
How will a partnership be taxed?
Each year, each partner must include their personal income from the partnership and whether or not the profit was distributed to the partner. The income will be taxed at the appropriate rate for that partner
What is an LLP?
Essentially a hybrid between a limited company and a general partnership.
Under what provisions is an LLP formed?
Limited Liability Partnerships Act 2000
What is required before an LLP can start trading?
Registration with the Registrar of Companies
What must be issued before an LLP can begin trading?
Certificate of Incorporation
What will Companies House issue alongside the certificate of incorporation?
A unique company registration number
What documents are required to be submitted to Companies House to register an LLP?
Name of the LLP
Details of the LLP
Names and address of the members of the LLP
Details of people with significant control
Is an LLP able to change its name?
Yes by delivering a notice of the change to the Registrar of Companies
Does an LLP have its own legal personality?
Yes.
What is the effect if a business has its own legal personality?
They own any property outright, contracts are entered into in the name of the LLP and the LLP can be sued and sue in its own name
Does an LLP cease to exist if a member dies or is made bankrupt?
No as they are their own legal entity
Does an LLP have a term for its existence?
No exists in perpetuity
How many members must an LLP have?
At least 2 members
How long can a member carry on a business in an LLP with less than 2 members?
6 months
What happens if an LLP has less than 2 members for more than a 6 month period?
The one member will be jointly and severally liable with the LLP for the debts incurred after the initial 6 months
What is required for admission of a new member to an LLP?
Unanimous consent from all existing members
What are the main duties of a designated member of an LLP?
- Appoint and remove auditors
- Submit annual confirmation statements
- Sign and file accounts
- Comply with statutory filing requirements
What happens if an LLP does not designate any members?
The law will treat all the members as designated members
What is required when an LLP has a change to its members?
Must notify Companies House within 14 days of the change.
What are the repercussions if Companies House are not informed of changes to members?
This is a criminal offence
Are the members of an LLP agents?
Yes
What is the effect of the members of an LLP being agents?
They owe a duty of care to the LLP, may bind the LLP in contract and make the LLP liable in tort if they act with actual or apparent authority.
When would an LLP not be bound by an act by a member?
When the member does not have the authority to act and the third party knows they do not have such authority
How does a member cease being a member of an LLP?
The member must give reasonable notice to the other members and Companies House within 14 days. Still regarded as a member unless they have sent notice to Companies House.
Who is a person with significant control?
Directly or indirectly holds more than 25% of the surplus assets on winding up
Directly or indirectly holds more than 25% of the rights to vote on matters
Directly or indirectly holds the right to appoint or remove the majority of those entitled to take part in management
What is the members right to profit in an LLP?
Members are entitled to share equally the capital and profits of the LLP.
Are members entitled to remuneration for acting or managing the business?
No
What are the requirements with regards to books and reports in an LLP?
Members are entitled to have access to and inspect books and records of the LLP at any time they see fit.
What is required if there is to be a change in the nature of the business of an LLP?
Consent of all the members
What is a members duty to account in an LLP?
If a member carries on any business in competition with the LLP without consent of the LLP, they must account for all profits made by that business.
Are members of an LLP liable for wrongful acts or omissions of other members?
No
Is the LLP liable for wrongful acts or omissions by individual members?
Yes the LLP is liable to the same extent as the member
What is an LLP required to file with Companies House?
Annual accounts
Annual confirmation statement
Details of the appointment and removal of any members
Details to changes to the details of the members
Details of any changes to the registered name or registered office of the LLP
What is the liability for debts owed by an LLP?
Members are not liable for debts owed to the LLP’s creditors, only liability is their capital contribution
If a member of an LLP has paid all their capital contribution what further payments will be required?
Nothing further,
Members of an LLP are subject to the rules in the Insolvency Act 1986. What does this mean?
Make it possible for individuals who acted wrongfully or fraudulently to be held personally liable for the debts of the company in the event of insolvency
What is the effect of a clawback provision?
If a member of an LLP has withdrawn any property within the period of 2 years before the LLP goes into insolvent liquidations, and it is proved they knew of the insolvency when the withdrawal was made, the court may order the member to contribute to the assets of the LLP
What are the ways an LLP can be terminated?
- Voluntary striking off and dissolution
2. Insolvency
What is the process of termination by voluntary striking off and dissolution for an LLP?
A majority of members can apply to Companies House to be dissolved or struck off.
When can an LLP not be struck off?
The LLP has traded in the last 3 months
LLP has changed its name in the last 3 months
LLP is subject to insolvency proceedings
What must the members of an LLP making an application for dissolution do?
Notify the other members, creditors, any employees and the trustee of any pension fund of the application to strike off
On receipt of the application to strike off for an LLP, what will Companies House do?
Publish a notice of the proposed striking off in the London Gazette
Why does Companies House place a notice of dissolution of an LLP in the London Gazette?
So interested parties can object
How long after the notice of dissolution of an LLP being issued will the company dissolve?
3 months
What is the process of termination of an LLP by insolvency?
An LLP can be liquidated, put into administration or be the subject of a voluntary arrangement
What are the tax implications for an LLP?
LLP is not a taxable person and therefore does not pay corporation tax and the members of an LLP are taxed individually for income tax instead
What is the stamp duty exception for an LLP?
No SDLT Is owed if a property is transferred to the LLP within 1 year of incorporation if:
- transferred by a person who was a partner in the partnership or who holds the property as bare trustee for a partner
- proportional ownership of the property in the LLP remains the same as the proportional ownership go the property in the partnership
What are the 2 types of companies?
Limited Company
Unlimited Company
What are the 2 types of limited companies?
Limited by Shares
Limited by Guarantees
What are the 2 types of companies limited by shares?
Public Company
Private Company
What are the main features of an unlimited company?
Members are personally liable for all the debts of the company and they are not required to publish their accounts at Companies House.
What is a company limited by guarantee?
Requires members to pay a fixed, guaranteed amount in the event of the company being wound up
When are companies limited by guarantee usually used?
For non-profit organisations
How many members must a company limited by guarantee have?
At least 1
What is a company limited by shares?
Members do not have any personal liability for obligations of the company beyond the amount they paid for their shares
If a shareholder in a company limited by shares has paid for their shares and the company becomes insolvent, what liability does the shareholder have?
Nothing further.
How can a private limited company sell shares?
By private agreement only, cannot issue shares to the public
How can a public limited company sell their shares?
Can issue shares to the public and if the PLC is listed to trade their shares on the stock market
What are the registration requirements for a public limited company to publicly trade?
Need to have a minimum nominal share capital of £50,000 and a trading certificate
What is a company promotor?
Someone who goes about arranging for investors and registration to bring the company into existence
What is the memorandum of association?
A statement authenticated by persons wishing to become members of a public limited company. Must be delivered to the Registrar of Companies along with the application for registration
What duty do promoter’s owe to a public limited company?
A fiduciary duty.
What are pre-incorporation contracts for a public liability company?
Promoters make the required contractual arrangements to ensure the company can run when it is registered.
Who will be liable in pre-incorporation contracts for a public liability contract?
A promoter
How can a promotor protect themselves against the liability of entering into pre-incorporation contracts?
Prepare contracts in draft and only execute when the property is registered
Enter into a novation agreement after the company is incorporated
Enter into a contract with the company when incorporated assigning the benefit of the agreements to it
Set up the company faster by incorporating a shelf company and then entering into the contract
What is a novation agreement?
A contract between the parties - the promoter, the company and outside contract party - under which the parties agree to substitute the company for the promoter
What is a shelf company?
Companies that are pre-incorporated but have never traded where the promoter can purchase and change the basic details such as members.
For a public limited company, what is submitted to Companies House for incorporation?
The promoters of the company must file the memorandum of association with Companies House along with the application for registration.
What must be included in the application for registration of a public limited company?
Proposed name of the company
Location of registered office
Details of company’s business activity and Standard Industrial Classification Code
Whether the Company will be limited by shares or guarantee
Details of subscribers
Statement of capital and initial shareholdings
Statement of the proposed offices, including residential address and company secretary
Details of persons with significant control
Statement of compliance with the terms of the Companies Act 2006
Payment of relevant fee
What are the rules for the name for a public limited company?
Must not be the same as an already incorporated company
Must end in Limited, LTD or Public Limited or PLC
Cannot be offensive
Approval required for name suggesting connection to Government or local authority
Approval is required for a name that contains sensitive words, such as auditor, chartered , law commission or medical centre
How can a company change their name after registration?
By special resolution of the members or as provided in the articles.
If the company is limited in shares, what must the Application for registration also include?
Statement of the total number of shares of the company to be taken by the subscribers of the Memorandum of Association
Aggregate nominal value of those shares
If shares are to be divided into classes with varying rights
The amount that will be paid up by shareholders and the amount left unpaid for the shares