英国公司法讲义3.docx

英国公司法讲义3 University of Exeter, Business School Corporate Law 2022/12 Part A (Sections 1-3): CREATING THE COMPANY SECTION 3 - CORPORATE PERSONALITY Material to accompany lectures and lecture slides Separate Corporate Personality S 16(2): The subscribers to the memorandum, together with such other persons as may from time to time become members of the company, are a body corporate by the name contained in the memorandum. Salomon’s case Salomon v A. Salomon & Co Ltd [1897] AC 22 High Court: “[T]his business was Mr Salomon’s business and no one else’s: … he chose to employ as agent a limited company; … he is bound to indemnify that agent, the company …” (Vaughn Williams J) Court of Appeal: “I should rather liken the company to a trustee for him – a trustee improperly brought into existence by him to enable him to do what the statute prohibits. It is manifest that the other members of the company have practically no interest in it, and their names have merely been used by Mr. Aron Salomon to enable him to form a company, and to use its name in order to screen himself from liability.” (Lindley LJ) “the company was a mere nominis umbra, under cover of which he carried on his business as before.” “it would be lamentable if a scheme such as this could not be defeated.” (Lopes LJ) “The statutes were intended to allow seven or more persons bona fide associated for the purpose of trade to limit their liability under certain conditions and to become a corporation. But they were not intended to legalize a pretended association for the purpose of enabling an individual to carry on his own business with limited liability in the name of a joint stock company.” (Kay LJ) House of Lords: “The company is at law a different person altogether from the subscribers to the memorandum; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them. Nor are the subscribers as members liable, in any share or form, except to the extent and in the manner provided by the Act.” (Lord Macnaughten) “In a popular sense, a company may in every case be said to carry on business for and on behalf of its shareholders; but this certainly does not in point of law constitute the relation of principal and agent between them or render the shareholders liable to indemnify the company against the debts which it incurs.” (Lord Herschell) “[I]t seems to me impossible to dispute that once the company is legally incorporated it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the company are absolutely irrelevant in discussing what those rights and liabilities are.” (Lord Halsbury) Application of the Salomon principle Lee v Lee’s Air Farming Ltd [1961] AC 12 “[I]t is a logical consequence of the decision in Salomon’s case that one person may function in dual capacities.” (Lord Morris) Macaura v Northern Assurance [1925] AC 619 “[T]he corporator even if he holds all the shares is not the corporation, and … neither he nor any creditor of the company has any property legal or equitable in the assets of the corporation.” (Lord Wrenbury) Tunstall v Steigmann [1962] 2 QB 593 “There is no escape from the fact that a company is a legal entity entirely separate from its corporators – see Salomon v A. Salomon & Co Ltd. Here the landlord and the company are entirely separate entities. This is no matter of form; it is a matter of substance and reality. Each can sue and be sued in its own right; indeed, there is nothing to prevent the one from suing the other. Even the holder of 100 per cent of the shares in a company does not by such holding become so identified with the company that he or she can be said to carry on the business of the company.” (Willmer LJ) Attorney-General’s Reference (No. 2 of 1982) [1984] 2 All ER 216; R v Phillipou (1989) 89 Cr App R 290 Consequences of corporate personality Macaura v Northern Assurance [1925] AC 619 Foss v Harbottle Lee v Lee’s Air Farming Ltd [1961] AC 12 The Albazero [1977] AC 774: “[E]ach company in a group of companies is a separate legal entity possessed of separate legal rights and liabilities so that the rights of one company in a group cannot be exercised by another company in that group …” (Roskill LJ) Re Southard & Co Ltd[1979] 1 WLR 1198: “A parent company may spawn a number of subsidiary companies, all controlled directly or indirectly by the shareholders of the parent company. If one of the subsidiary companies ... turns out to be the runt of the litter and declines into insolvency to the dismay of its creditors, the parent com。