公司法Promoters & Pre-incorporati

PangGreat

2009-05-28 8:24 am

可否幫忙用簡單英文作答, 吾該 :

1. 公司 MA 對外需吾需要寫 audit cost? Why?
答案是不需要, 因法例巳修改, 請問我是否引用以下書的資料作答,對不對, 可否幫我簡單組織下 :
Abolition of the ultra vires doctrine (s5B CO)

For transactions entered into by companies after 10th Feb 1997, this doctrine has been abolished by s5B(3) CO which provides that:

An act of a company (including a transfer of property to or by the company) is not invalid by reason only that it contravenes subsection (1).

Therefore where there is an objects clause and it is exceeded, third parties with no knowledge of this can enforce their contracts against the company. However, shareholders are still entitled to take action against the directors for exceeding or abusing their powers by entering into these contracts in contravention of the objects.

2. C 是 B公司 MA 的見證人, 在星期一, C 將所有開公司的文件交去公司注冊處, 在星期二, C 同業主簽一張租務合約, 當佢簽合約時, 有寫 C for and On behalf of B 公司, 在星期三, 公司正式在公司注冊處成立, 這間公司打算做兩年生意, 故將所有租款巳比業主, 後期, 公司遇到財政困難, 最後法庭頒清盤令. 後來業主發現有部份租未比, 因在 Audit 裡巳乜都無晒, 業主後期又發現簽約時公司未成立.
問 C同佢簽合約時公司未成立, 是否需要交欠租
阿 Sir 話按以下 Hins 答
- Issue (Legal Issue)
- Related (Def.) 什麼是 Promotor , 法例不是 Agent , promotor , 因 principle 未出現, 叫 pre-incorporation
- Application
-Conclusion C要負責

更新1:

謝謝 nitwell 再次解答, Q1 是考試問的, 可能考我地對 MA 認識有幾多, 我們只有8堂, 現巳上了7堂, 無 ex 比我地做同看架, 只有理論, 所以消化有限, 明D吾明 D

回答 (1)

nitwell

2009-05-31 11:56 pm

✔ 最佳答案

1. 我唔明點解audit cost 要放在M&A. 但睇您的內容應該是objects clause. 您所講的內容是正確的不過應先講definition of ultra vires doctrine 然後講點解會abolish用好d(個人意見).

2. Issue: whether C liable to the rent outstanding.

Relevant status requirement: section 32A(1)(a) of CO.

Application: When the tenancy agreement purports to be made by C on behalf of B Ltd at a time when B Ltd has not been incorporated.

Under common law, a contract made in the name of B Ltd before its incorporation cannot be ratified by B Ltd after it is incorporated because B Ltd actually not existence when the tenancy agreement was signed. Therefore, C is not an agent of B Ltd as B Ltd was not incorporated at that moment and cannot appoint an agent. (Kelner v Baxter (1866) UK)

Section 32A(1)(a) provides that the tenancy agreement is binding on the person purporting to act for the company when the company is not incorporated. In this case C is binding. Therefore, a promoter is both personally liable and entitled to enforce such a contract.

However Section 32A(1)(a) does not apply if there is any agreement to the contrary. (Phonogram Ltd v Lane)

Conclusion: As C has signed the tenancy agreement purports for the B Ltd at the time B Ltd was not incorporated and there is no such exclusion clause in the tenancy agreement, C is liable to the agreement.

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