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E-raamat: Contracting with Companies [Hart e-raamatud]

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Contracting with CompaniesSuurem pilt
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Contracting with Companies surveys the main rules of company law governing the making of contracts with companies. It adopts an economic perspective, examining these rules in terms of the risks they apportion between companies and parties contracting with them. It reviews the use that has been made of economics in the analysis of company law and considers what guidance this can provide in analyzing corporate contracting. The book then examines the relevant law and the issues raised by this law, covering the role of corporate constitutions as the source of the authority of corporate agents, the mechanisms of corporate activity and decision-making, the identification of corporate contracting parties, pre-incorporation contracts and other contracts with non-existent companies, the contractual power of a company's board, the protection of parties dealing with subordinate corporate agents and the regulation of contracts in which a director has a conflict of interest.
Preface vii
Table of Cases
xix
Table of Legislation
xxix
Attribution and Risk Assignment: An Introduction to the Legal and Economic Dimensions of Contracting with Companies
1(22)
Attribution
1(10)
The Attribution of Contracts to a Company: An Historical Perspective
2(4)
The Attribution of Contracts to a Company: The Current Position
6(3)
The Approach of this Book
9(2)
Some General Observations on the Law Governing Attribution
11(4)
Lack of Focus on the Artificial Nature of Corporate Personality
11(2)
Statutory Reform
13(2)
Competitiveness, Economic Analysis and Company Law
15(1)
Attribution as Assignment of Risk
15(8)
Improving Economic Efficiency through Rules of Law
17(1)
Improving Economic Efficiency through the Detail of Rules of Law
18(2)
Rules of Law and the Economics of Information
20(3)
Assigning Risk: An Economic Perspective on the Law Governing Contracting with Companies
23(50)
The Aims of This
Chapter
23(1)
An Economic View of Rules of Law
24(7)
The Use of Economics in the Analysis of Law
24(1)
The Economic Significance of Company Law
25(2)
`Competitive' Companies: Competition as a Dynamic Process
27(1)
Differing Approaches to Economic Analysis and to the Future
28(3)
Standards of Economic Efficiency
31(12)
Neo-Classical Economic Analysis
31(1)
Wealth Maximisation and Allocative Efficiency
31(1)
Pareto Efficiency
32(1)
Kaldor-Hicks Efficiency
33(1)
Contracting in Neo-Classical Economic Analysis
34(1)
The Role of Legal Rules in Neo-Classical Analysis
34(1)
Alternatives to Neo-Classical Analysis
35(1)
The 'Neo-Institutional Schools
35(1)
Contracting in the Face of Uncertainty and Opportunism
36(1)
Incomplete Contracting
37(1)
Other Notions of Economic Efficiency
38(1)
Productive Efficiency
38(1)
Dynamic Efficiency
38(1)
Legal Incentives for Innovation
39(2)
Economic Efficiency and Information
41(1)
Information and Transaction Costs
41(2)
Information and the Stimulation of Economic Activity
43(1)
An Economic View of the Company
43(10)
The Legal Institution
43(3)
The Economic Role of the Company
46(1)
The `Nexus of Contracts' Model
46(1)
The Economic Role of Corporate Management
47(1)
The Separation of Management from Ownership
48(1)
Voting Rights as a Contractual Safeguard for Shareholders
49(1)
Managerial Discretion and the Danger of Opportunism
50(2)
Differing Economic Approaches to the Company
52(1)
An Economic View of Corporate Management
53(3)
The Management Structure of a Company
53(1)
The Internal Organisation of Corporate Management
54(1)
Corporate Agency
55(1)
An Economic Framework for Analysing the Rules Governing Contracting With Companies
56(15)
Limiting the Authority of Corporate Agents
56(1)
The Economic Rationale of Limits on Actual Authority
56(2)
The Economic Implications of the Remedy of Invalidity
58(2)
The Economic Cost for Companies of Overriding Rules of Attribution
60(1)
The Risk of Loss from Unauthorised Contracts
60(1)
An Increased Risk of Loss and Limited Liability
61(1)
Factors that Mitigate the Risk of Loss from Unauthorised Contracts
62(1)
Taking Avoiding Action to Minimise the Risk of Loss
63(1)
The Quality of Corporate Agents
64(1)
The One-Sided Nature of the Remedy of Invalidity
65(1)
The Cost for Third Parties of a Risk of Invalidity
66(1)
Transaction Costs
66(2)
Sources of Information for Third Parties
68(1)
Agents' Behaviour as a Source of Information
68(2)
Third Parties as the Least-Cost-Avoider
70(1)
Analysing the Law Governing Contracting With Companies
71(2)
The Power to Make Contracts for a Company
73(50)
The Legal Source of Contractual Power
73(3)
The Constitution of a Company
76(6)
The Legal Role of the Constitution
76(1)
The Format of a Company's Constitution
77(1)
The Legal Effect of a Company's Constitution
78(3)
The Economic Significance of Shareholders' Rights under the Constitution
81(1)
The Management Structure of a Company
82(13)
The Board of Directors
82(1)
The Board as a Company's Principal Organ of Management
82(1)
The Board's Autonomy as an Organ of the Company
83(2)
The Operation of the Board as an Organ of Governance
85(3)
The Shareholders
88(1)
The Role of Shareholders in Corporate Governance
88(2)
The Operation of the Shareholders as a Decision-Making Body
90(1)
The Shareholders' Powers of Management
90(1)
The Ancillary Powers of Ratification and Release
91(1)
Shareholders and Managerial Decision-Making
92(1)
The Governance Implications of the Ancillary Powers
93(1)
Decision-Making on Behalf of an Insolvent Company
94(1)
The Actual Authority of the Board to Make Contracts
95(13)
The Vesting of Contractual Power in the Board
95(1)
The Vesting Process
95(1)
Identifying the Board
96(1)
The Specification of the Company's Contractual Power
97(1)
The Contractual Capacity of a Company
97(1)
Contractual Capacity and the Objects Clause
98(2)
The Powers of the Company
100(1)
The Constitution's Role in Defining the Powers of the Company
100(1)
Distinguishing Limits on the Powers of the Company from Limits on the Powers of the Board
101(1)
The Powers of the Board
102(1)
The Limiting Effect of the Objects Clause
102(1)
Other Constitutional Limits on the Board's Powers
103(1)
Directors' Duties as Limits on the Board's Powers?
104(2)
The Proper Purposes Doctrine
106(2)
Contracting Beyond the Limits on The Board's Authority
108(7)
The Shareholders' Ancillary Powers
108(1)
The Need to Override the Limits on the Board
108(1)
The Shareholders' Powers to Override the Limits on the Board
109(1)
The Economic Costs of Setting Limits on the Board's Authority
110(1)
Obtaining the Shareholders' Approval for a Contract
111(1)
Expense, Delay and Uncertainty
111(1)
Mitigating the Uncertainty of Delay
112(1)
The Board's Authority to give Undertakings about their Future Conduct
113(2)
Conclusions and Review
115(8)
The Rationale of Limiting the Board's Actual Authority
115(2)
The Balancing Exercise
117(1)
The Scope for Evolving an Efficient Division of Powers
118(1)
Problems in Corporate Decision-Making
119(2)
The Cost for Third Parties
121(2)
Issues of Identity and Existence
123(38)
Introduction
123(3)
The Identification of Corporate Contracting Parties
126(6)
Seeking the `Presumed Common Intention' of the Parties
126(2)
Confusing the Identity of Connected Companies
128(2)
Ensuring the Accurate Use of a Company's Registered Name
130(2)
The Non-Existence of a Corporate Contractual Party: Pre-Incorporation Contracts and Other Scenarios
132(7)
The Risk of Non-Existence
132(1)
The Common Law Rules
133(5)
Planning Ahead of Incorporation
138(1)
Statutory Reform
139(2)
The First European Directive
139(1)
Section 36C of the Companies Act 1985
140(1)
The Terms of the Provision
140(1)
Legal Issues Arising from the Wording of the Provision
141(1)
The Meaning and Effect of Section 36C
141(15)
The Proviso to Section 36C
141(1)
The Legal Nature of the Contract Given Effect by Section 36C
142(1)
Can the Agent Enforce the Contract against the Third Party?
142(1)
The Braymist Case: Enforcement against the Third Party
142(1)
The Court of Appeal's Judgment
143(2)
Review of the Court of Appeal's Judgment in Braymist
145(1)
Who is `the person purporting to act for the company or as agent for it' in section 36C?
146(1)
Distinguishing Decision-Making from Decision-Implementing Agents
146(1)
The Braymist Case: Limiting Section 36C to Decision-Implementing Agents
146(1)
Review of Etherton J's Judgment in Braymist
147(1)
Contracting with a Company that `has not been Formed'
148(1)
Pre-Incorporation Contracts as Part of a Broader Category
148(1)
Two Sub-Categories of Pre-Incorporation Contract
148(1)
Companies that `have not been Formed'?
149(1)
Must the Non-Existent Company have been Formed Later?
150(1)
The Place of Incorporation of a Company Subsequently Formed
150(2)
The Exclusion of Post-Dissolution Contracts
152(3)
Review of the Cotronic Decision
155(1)
Claims for a Quantum Meruit for Work Done
155(1)
The Contracts (Rights of Third Parties) Act 1999
156(2)
Novation and Ratification at Common Law
156(1)
A Company's Right to Enforce Pre-Incorporation Contracts
157(1)
Conclusions and Review
158(3)
Contracting with the Board
161(58)
Introduction
161(3)
The Need for a Reliable Reference Point for Third Parties
161(2)
The Obligation to Ensure that Third Parties Enjoy `Security of Transaction'
163(1)
Overriding a Company's Limited Contractual Capacity
164(6)
The Current Position
164(1)
The Common Law Doctrine of Ultra Vires
165(1)
The Nature of the Doctrine
165(1)
The Legal Effect of the Doctrine
166(1)
The Rationale of the Doctrine
167(1)
The Need for Reform
168(1)
Section 35 of the Companies Act 1985
169(1)
A Presumption of Unlimited Contractual Capacity?
169(1)
Distinguishing a Company's Limited Contractual Capacity from the Limited Actual Authority of its Board
170(1)
The Board's Actual Authority
170(8)
The Limits on a Board's Actual Authority
170(3)
The Legal Effect of a Contract Made Without Actual Authority
173(1)
The Overriding Rules of Attribution Applicable to Contracts Made or Approved by a Company's Board
174(1)
The Common Law Approach
174(3)
The Need for Statutory Reform
177(1)
The Statutory Rules of Attribution
178(16)
Section 36A(6)
178(1)
Section 35A
179(1)
The Nature of the Statutory Reform
179(1)
Elaboration of the Terms of Section 35A
179(1)
The Company Law Review's Recommendations
180(1)
Qualification by Section 322A
180(1)
Analysis of Section 35A
181(1)
A Person Dealing with a Company
182(1)
Any Legal Person Other than the Company
182(1)
Section 35A and Directors
183(1)
Certain Directors cannot be `a person dealing with a company'
184(1)
Section 35A and Shareholders
185(3)
The `Power of the Board of Directors'
188(1)
Identifying the `Board of Directors'
188(1)
The Relevance of Procedural Regulations such as Quorum Requirements
188(1)
Do Procedural Regulations Define the Board or Merely Limit its Powers?
189(1)
The Approach to the Issue in the Henniker-Major Case
190(2)
Review of the Second Condition after the Henniker-Major Judgments
192(1)
The Complementary Powers of the Shareholders
193(1)
The Good Faith Qualification
194(9)
A Third Condition of Section 35A
194(1)
The Common Law Background
195(1)
The Indoor Management Rule and Constructive Notice
195(1)
A Duty to Make Further Inquiry as an Efficient Allocation of Risk
196(2)
Rebutting the Statutory Presumption of Good Faith
198(1)
The Economic Role of the Good Faith Qualification
198(1)
The Inefficiency of Knowledge as a Qualifying Factor
199(1)
Good Faith and Liability for Knowing Receipt
200(1)
Attributing Knowledge to a Corporate Third Party
200(1)
The Problem of Attributing or Imputing Knowledge to a Company
200(1)
Determining the Knowledge of a Company for the Purposes of Knowing Receipt
201(2)
A Third Party's Liability for Knowing Receipt
203(10)
The Conditions of Liability
203(2)
The Requirement of Knowledge
205(1)
A Third Party's Right to Pursue its Own Commercial Interests
206(1)
The Danger of an Inefficient Risk of Liability
206(2)
The Akindele Case
208(1)
The Akindele Test of `Unconscionability'
209(3)
The Good Faith Qualification to Section 35A
212(1)
Contracts With Directors or Other Designated Persons
213(3)
Section 322A
213(1)
The Ambit and Effect of Section 322A
213(1)
The Rationale of Section 322A
214(1)
Section 322A and Multi-Party Contracts
215(1)
Conclusions and Review
216(3)
Contracting with Other Corporate Agents
219(46)
Introduction
219(5)
The Case for Ensuring Reliability
219(1)
The Authority of Subordinate Agents
220(1)
Dealing with Subordinate Agents
220(2)
The Economic Role of the Overriding Rules of Attribution Applicable to Subordinate Agents
222(2)
The Framework of the Law
224(3)
Ostensible Authority
224(1)
Determining the Ostensible Authority of Corporate Agents
225(2)
The Indoor Management Rule
227(13)
The Nature of the Rule
227(1)
A Presumption of Regularity
227(1)
Constructive Notice of Irregularity
228(1)
Statement of the Indoor Management Rule
229(1)
An Analysis of the Indoor Management Rule
229(1)
A Corporate Agent's Appearance of Authority
229(1)
The Doctrine of Constructive Notice
230(2)
Circumstances that put a Third Party `on Inquiry'
232(1)
A Third Party's Duty to Find Out More
232(1)
Circumstances Putting a Third Party on Inquiry
233(1)
Circumstances in which Third Parties are the Least-Cost-Avoider
234(2)
Factors Putting Third Parties on Inquiry
236(2)
The Displacement of the Indoor Management Rule
238(1)
The Presumption of Regularity as an Instance of Ostensible Authority
238(1)
The Problem of Finding a Representation of Ostensible Authority
239(1)
The Diplock Approach to Corporate Agency
240(5)
Adapting Agency Law to Corporate Personality
240(1)
The Restatement of the Law in the Freeman & Lockyer Case
241(3)
The Diplock Approach
244(1)
The Four Conditions of Ostensible Authority
244(1)
The Implications of the Diplock Approach
244(1)
An Analysis of the Four Conditions of Ostensible Authority
245(16)
A Representation of Authority
245(1)
Representing the Authority of a Corporate Agent
245(1)
The Scope of a Representation of Authority
246(1)
Someone with Actual Authority to Manage the Company Must Make the Representation
247(1)
The Representation must be Attributable to the Company
247(1)
Authority to be a Reliable Reference Point for Third Parties?
248(2)
The Economic Cost of not having a Reliable Reference Point
250(2)
The Agent as a Reference Point
252(1)
The Agent as a Reliable Reference Point
253(3)
The Continuing Uncertainty in the Law
256(1)
The Representation must have induced the Third Party to Enter the Contract
257(1)
The Need for Reliance
257(1)
A Third Party's Suspicion may Negate Reliance
258(1)
Actual or Constructive Knowledge Negates Reliance
258(2)
The Company has the Capacity to Enter the Contract and to Delegate the Necessary Authority to the Agent
260(1)
The Abolition of the Doctrine of Constructive or Deemed Notice
261(1)
Conclusions and Review
262(3)
Contracts Involving Self-Dealing
265(50)
Introduction
265(9)
The Meaning of Self-Dealing
265(1)
The Legal Significance of Self-Dealing
266(1)
The Law Governing Contracts Involving Self-Dealing
267(3)
The Economic Significance of Regulating Self-Dealing
270(2)
Disclosure in a Unitary Board System
272(1)
The Structure of the Law
273(1)
Identifying Contracts Involving Self-Dealing
274(3)
Defining a Conflict of Interest
274(1)
The Ambit of the No Conflict Rule
275(1)
The Company Law Review
276(1)
The Effect of Self-Dealing on the Power to Make Contracts for Companies
277(4)
Actual Authority
277(1)
The Special Nature of the Power to Award Remuneration
277(1)
Other Special Limits Affecting Actual Authority
278(2)
Breach of the Directors' Duty of Good Faith
280(1)
Self-Dealing and the Overriding Rules of Attribution
281(4)
Section 35A of the Companies Act 1985
281(1)
The Indoor Management Rule
282(2)
Ostensible Authority and the Diplock Approach
284(1)
The Additional Law Governing the Validity of Contracts Involving Self-Dealing
285(2)
The Requirement to Declare or Disclose an Interest in a Contract Involving Self-Dealing
287(13)
The Legal Significance of the Disclosure Requirement
287(1)
The Significance of the Disclosure Requirement's Having Two Legal Sources
288(2)
Complying with the Disclosure Requirement
290(3)
What Must a Director Disclose to Satisfy the Disclosure Requirement?
293(1)
Inadequate Disclosure
293(1)
Liability for Inadequate Disclosure
294(1)
The Limits of the Required Disclosure
295(1)
The Legal Effect on a Contract of a Failure to Comply with the Disclosure Requirement
296(1)
The Company's Right to Avoid the Contract
296(1)
An Election Not to Rescind
297(1)
An Innocent Third Party
297(1)
Unreasonable Delay or Acquiescence
298(1)
Impossibility of Restitution
299(1)
Special Regimes Under Part X of the Companies Act 1985
300(3)
Contracts Involving an Enhanced Risk of Abuse
300(1)
Directors' Remuneration
301(2)
Section 320 of the Companies Act 1985
303(9)
Substantial Property Transactions
303(1)
The Rationale of Section 320
303(1)
Additional Protection for the Shareholders
303(3)
Section 320 and the Unanimous Consent Rule
306(1)
The Conditions that Trigger Section 320
307(1)
The Statutory Conditions
307(1)
An Arrangement
308(1)
Non Cash Assets
308(1)
The Value of the Non-Cash Asset
309(2)
The Company's Asset Value
311(1)
Consequential Liability under Section 322
311(1)
Conclusions and Review
312(3)
Index 315


Andrew Griffiths is a Senior Lecturer in Law at the University of Manchester.
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