Contract/Business: EXTRA Flashcards
Does a partnership dissolve on death/ retirement of a partner for GPs/LLPs?
GP-Yes
LLP-NO
Who can call a GM?
- Dirs at BM
- SH with 5% voting rights (dirs call within 21d, occur within 28d)
Notice period for calling GM?
14 clear days (+48h for email/post)
Who can call a GM on short notice?
Majority of SH who hold 90% voting rights
4
When CANT a GM be held on short notice?
-loan to dir
-buyback of shares
-dir long term service contract
-removal of dir
When must special notice of a GM be given/what is it?
Removing dir
28 clear days before GM
Inform co +Dir (written representations)
Is there a limit on the number of times a company can change its accounting reference date and who can do it?
No limit, can at BM
BUT extension must not result in a new period exceeding 18 months
How can a company auditor be removed
OR of SH
What is the lapse date (deadline for responding) of a written resolution?
midnight of 28th day from circulation unless articles state otherwise
When is a GM/WR not needed for a decision that usually requires one?
All SH in unanimous agreement
4
Who can call a poll vote?
*Chair
*Dirs
*2 or more SH with right to vote on the res
*SH holding at least 10% of the voting rights of SH having right to vote on that res
4
EXCEPTIONS to requirement for OR for loans to a director?
○Loans up to 50k: for business purposes/enabling the director to properly perform their duties
○Defending civil/criminal proceedings in relation to Co/ associated Co
○ Defending regulatory proceedings/investigation by a regulatory authority
○ Minor and business transactions not exceeding 10k
What are the classifications of contract terms?
CONDITION: major term going to the root of the contract
INNOMINATE (aka. Intermediate): Cant be classified at the outset as there’s such a wide spectrum of breaches. ‘Wait and see’ and if the effect of a breach of the term is to deprive the innocent party of substantially the whole benefit it was anticipated he should receive under the contact
WARRANTIES: A minor, less important term
Consequences of breach of contract terms
Condition/innominate (if deprives innocent party of substantially the whole benefit it was anticipated he should receive)=terminate and damages
Warranty: damages NOT termination, even if loss is serious
How may contract terms be incorporated?
- Signature (inc tick box)
- Reasonable notice before/at time of contract
- Previous consistent course of dealing
When will incorporation of terms via signature not be effective?
a) illegible
b) Contents of doc misrepresented
c) Unusual and onerous and not fairly or reasonably drawn to attention of other party
Requirements for contract terms to be incorporated via previous consistent course of dealing?
□ Must be a sufficient number of regular dealings in consistent format
Eg. Not for’3/4 times over 5 years but yes for 3/4times a month for 3 years
How can terms be implied into contract?
- Custom (unless express term contradicts
- In fact: would be unworkable without (so obvious, didnt think to inc)
- In law: bc law regards it as necessary for a particular type of contract
- Statute
Effect of breach of ss9-11 CRA 2015 (comply with description/satisfactory quality/fit for purpose)
Inc burden of proof
- Reject & refund & damages(if costs more to get elsewhere) (non perishables within 30d bought/delivery, perishable-as long as goods reasonably expected to last)
- Repair/replacement
- Price reduction/reject and partial refund to reflect use
Burden of proof: if buyer can prove was defective within 6mo, presumed goods defective when purchased
Which terms implied by the Sale of Goods Act 1979 are conditions?
All:
1. Seller has right to sell goods
2. Comply with description
3. Satisfactory quality
4. Fit for purpose where purpose made known
Which terms implied by the Supply of Goods and Services Act 1982 are conditions?
(all except reasonable care skill/time/price)
1. Seller has right to sell
2. Comply with description
3. Satisfactory quality
4. Fit for purpose where purpose made known
Which terms implied by the Supply of Goods and Services Act 1982 are innominate terms?
- Exercise reasonable care/skill
- If not agreed, reasonable time and reasonable price
Exemption clauses: what are the rules under the CRA for B2C contracts for sales and service contracts?
SALES not binding if would:
1. exclude breach for s9-11(quality, purpose, description)
2.make right subject to restrictive/onerous condition
3. put person at disadvantage as a result of purchasing right/remedy
4. exclude/restrict rules of evidence/procedure
SERVICE not binding if would:
1. exclude liability for reasonable care/skill/time/price
2.make right subject to restrictive/onerous condition
3. put person at disadvantage as a result of purchasing right/remedy
Exemption clauses: what is the reasonable test for clauses under UCTA? (B2B)
Must be fair and reasonable, having regard to the circumstances which were/ought reasonably to have been, known to/in the contemplation of the parties when the contract was made,
To determine:
1. relative bargaining powers?
2. Inducement/opp to accept another contract without clause?
3. Ought to have known of existence/extent of clause, considering trade custom/prev dealings?
4. For noncompliance-reasonable that compliance would be practicable?
ALSO
1. resources
2Insurance
4
Which terms implied under the CRA only apply ‘in the course of business’ so not consumer to consumer?
- Satisfactory quality
- Fit for purpose
- Reasonable care/skill
- Reasonable time
Which terms implied under the CRA apply for consumer-consumer contracts?
Seller has right to transfer
Goods correspond with description
Reasonable price
What is remoteness in contract damages?
Loss must have been in the reasonable contemplation of the parties at time as a probable result of breach:
1. is loss inevitable/natural consequence of breach?
2. Know of special circumstances making loss likely consequence?
What can be awarded for a breach of covenant restricting trade in a contract when theres no actual loss?
Restitutionary damages to compensate it for loss of opportunity to negotiate a fee for releasing D from the covenant.
Remedies: what is restitution and when is it awarded?
Prevents one party being unjustly enriched, ordered when:
1. total failure of consideration
2. party has done work/supplied goods and wants to be compensated
3. for notional loss of opportunity to bargain where that was the ONLY loss (negotiating damages)
primary test and 5 others
What are the guidelines for determining if something is a term of the contract or a representation?
Primary test: What’s the common intention of the parties?
If unclear:
1. Relative skill and knowledge
2. Verbal statement repeated before it was agreed?
3. Recipient made clear it was of vital importance?
4. Maker invited other party to verify?
5. Lapse of time between statement and contract formation?
Can silence amount to misrepresentation?
No UNLESS
1. Fiduciary relationship
2. Contract is of upmost good faith
3. Half truth
4. Statement true when made and change of circumstances not disclosed
What are the 4 bars to recession?
- Affirmation
- Undue delay
- Innocent purchaser acquired rights in prop
- Restitution impossible
What is the effect of the 3 different types of misrepresentation?
Fraudulent/Negligent: Recession (+indemnity) OR damages in tort of deceit (for all consequential losses)
Innocent: Recession (+indemnity) NOT damages
What counts as ‘illegitimate pressure’ for duress?
- Unlawful threats
- Actual/threatened breach of contract
Do limited liability partnerships have to publish their accounts?
Yes
Can promissory estoppel be used to sue?
No it is only a defence, ‘Shield not a sword’
When can directors remove another director?
ONLY of theres powers in the articles (NOT) model articles, otherwise SH via OR
For which tax can you carry forward the annual exemption?
IHT
NOT CGT
When does mistaken identity (unilateral mistake) rarely work
When dealing face to face
For innocent misrepresentation, where does the burden of proof lie?
Misrepresentor has to show they honestly and reasonably believed what they said to be true
When will undue influence be presumed?
- Relationship of trust and confidence
- AND transaction calls for explanation (not easily explained by relationship between parties)
When is it irrebuttably presumed theres a relationship of trust and confidence for undue influence?
Solicitor/client
Dr/patient
Parent/child
Religious advisers and followers
NOT husband and wife (rebuttable not irrebuttable)
Who is a person connected to a director for the purposes of a SPT?
Spouse/CivP
Partner with whom they have an ‘enduring relationship’
Parents
Children (and step-children)
How/how often can a company change its accounting reference period?
No limit on number of times
But, a further change wont be effective if notice is given less than 5 years after the end of an earlier accounting reference period extension.
Extension must not result in a new period exceeding 18 months
Dirs can do at BM
Deadline for paying CGT
no later than 31 January following the end of the tax year to which the assessment relates.
Deadline for paying Corp tax
within nine months from the end of the tax year to which the assessment relates.
