Business Law and Practice 2020/2021

Mavrikakis

Sujets

• Droit et juridique
• Corporate law

Informations

• Publié par: College of Law Publishing
• Date de parution: 01 janvier 0001
• Nombre de lectures: 0
• EAN13: 9781913226664
• Langue: English

Extrait

BUSINESS LAW AND PRACTICE

Published by
College of Law Publishing,
Braboeuf Manor, Portsmouth Road, St Catherines, Guildford GU3 1HA
© The University of Law 2020
All rights reserved.
No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher.
Crown copyright material is licensed under the Open Government Licence v3.0.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library.
ISBN 978 1 913226 57 2
Typeset by Style Photosetting Ltd, Mayfield, East Sussex
Tables and index by Moira Greenhalgh, Arnside, Cumbria
Preface
In writing this book, we have set out to describe the forms of business most commonly encountered in practice, the issues they face internally, their relations with outsiders and their possible tax liabilities. In doing so we follow the lifespan of these businesses from their birth through to their death.
The style we have adopted has been chosen in the hope that the contents will be readily understood and appreciated by someone who is totally unacquainted with the subject, as well as by someone with some prior knowledge. We hope that the inclusion of statutory references in the text will encourage the reader to consult the original source materials whenever further research into a topic is required. To this end, we have prepared a companion volume, Business and Company Legislation , which contains the up-to-date text of the key legislation referred to in the book.
This book is a collaborative effort. With thanks to:
Stephen Allinson for writing the chapters on insolvency
Jacqueline Kempton for writing the chapters on taxation
Nick Hancock for writing the chapters on sale of goods and competition
Lesley King for Appendix 4 on the interpretation of company accounts.
I’m also very grateful to David Stott for his advice and patience in the face of deadlines stretched, and to Claire Lawrence, Nick Hancock, Giles Hutchinson, Marie Calleja and Edward Jones for their many suggestions for improvement.
This book should not be relied upon for the provision of or as a substitute for legal advice.
The law is stated as at 1 March 2020, except for the chapters on taxation and insolvency which state the law as at 1 May 2020.
This book is dedicated to the memory of our former colleague, Neil Duckworth, a great teacher and a lovely man.
Alexis Mavrikakis
London
Contents
PREFACE
TABLE OF CASES
TABLE OF STATUTES
TABLE OF SECONDARY LEGISLATION
TABLE OF ABBREVIATIONS
PART I STARTING A BUSINESS
Chapter 1 THE DIFFERENT TYPES OF BUSINESS
1.1 Introduction
1.2 Incorporated and unincorporated businesses
1.3 Sole trader
1.4 Partnership
1.5 Limited partnership
1.6 Contractual co-operation
1.7 Company
1.8 Unlimited company
1.9 Limited company
1.10 Other types of company
1.11 Limited liability partnership
1.12 European economic interest grouping/UK EEIG
1.13 What type of business is best?
1.14 Changing the type of business
1.15 Practical considerations
Chapter 2 INTRODUCTION TO THE COMPANY
2.1 Introduction
2.2 The key concepts
2.3 Separate legal personality
2.4 Side-stepping separate legal personality
2.5 Other major principles of company law
2.6 Sources of company law
PART II RUNNING A BUSINESS AS A COMPANY LIMITED BY SHARES
Chapter 3 HOW TO SET UP A COMPANY
3.1 Introduction
3.2 Forming a new company from scratch
3.3 Documentation
3.4 Type of company
3.5 Company’s name
3.6 Registered office
3.7 Statement of capital
3.8 Statement of proposed officers
3.9 Statement of compliance
3.10 Articles of association
3.11 Memorandum of association
3.12 Delivery of the documents
3.13 Role of the Registrar
3.14 Certificate of incorporation
3.15 Effect of registration
3.16 Post-incorporation steps
3.17 Shelf company
3.18 Conclusion
Chapter 4 THE COMPANY’S CONSTITUTION
4.1 Introduction
4.2 Definition
4.3 The articles of association
4.4 Amending the constitution
4.5 The memorandum of association
4.6 Companies formed under the Companies Act 1985
4.7 Summary of options regarding articles
4.8 Provision of constitutional documents
Chapter 5 THE COMPANY’S SHAREHOLDERS
5.1 Introduction
5.2 Promoters
5.3 Joining the company
5.4 The register of members
5.5 PSC Register
5.6 Shareholders’ rights
5.7 The shareholder’s role
5.8 Protection of minority shareholders
5.9 Types of shareholder
5.10 Shareholder power
Chapter 6 OFFICERS OF THE COMPANY
6.1 Introduction
6.2 Company secretary
6.3 Directors
6.4 Nature of office
6.5 Directors’ powers
6.6 Directors’ duties
6.7 Directors’ annual responsibilities
6.8 Directors’ service contracts
6.9 Notification requirements
6.10 Termination of directorship
6.11 Managers
6.12 Auditors
Chapter 7 CONTROLS ON DIRECTORS
7.1 Introduction
7.2 Directors’ general duties
7.3 Duty to act within powers
7.4 Duty to promote the success of the company
7.5 Duty to exercise independent judgment
7.6 Duty to exercise reasonable care, skill and diligence
7.7 Duty to avoid conflicts of interest
7.8 Duty not to accept benefits from third parties
7.9 Duty to declare interest in proposed transaction or arrangement with company
7.10 Consequences of a breach of a director’s duty
7.11 Avoiding liability for breach of a director’s duty
7.12 Other controls imposed on directors
7.13 Director’s liability
Chapter 8 COMPANY DECISION-MAKING
8.1 Introduction
8.2 Who takes the decision?
8.3 Introduction to directors’ decision-making
8.4 Board meeting
8.5 Directors’ written resolutions
8.6 Introduction to shareholders’ decision-making
8.7 Shareholders’ general meetings
8.8 Unanimous agreements
8.9 Shareholders’ written resolutions
8.10 Single-member company
8.11 Post-decision requirements
8.12 Joint decision-making
8.13 Electronic communication
Chapter 9 FINANCING A COMPANY I – SHARES
9.1 Introduction
9.2 Maintenance of share capital
9.3 Issuing shares
9.4 Financial assistance by a public company for the purchase of shares
9.5 Buy-back of shares by the company
9.6 Classes of shares
9.7 Offering shares to the public
9.8 Dividends
9.9 Transfer of shares
9.10 Transmission of shares
9.11 Serious loss of capital
9.12 Other ways of selling shares
9.13 Where does the money come from?
9.14 Summaries and checklists
Chapter 10 FINANCING A COMPANY II – DEBT
10.1 Introduction
10.2 Equity finance or debt finance?
10.3 Loans
10.4 Overdraft facility
10.5 Term loans
10.6 Revolving credit facility
10.7 Contractual terms
10.8 Debt securities
10.9 Other sources
10.10 Debentures
10.11 Secured debt
10.12 Comparison of debt and equity finance
10.13 Where does the money come from?
Chapter 11 TAKING SECURITY
11.1 Introduction
11.2 Why grant security?
11.3 Initial considerations
11.4 Types of security
11.5 Key terms in a charging document
11.6 Procedural matters for issue of debenture
11.7 Registration
11.8 Remedies of the debenture holder
11.9 Priority of charges
Chapter 12 PUBLIC COMPANIES
12.1 What is a public company?
12.2 Advantages of public company status
12.3 Potential disadvantages of public company status
12.4 Achieving public company status
12.5 Practical differences between public and private companies
PART III RUNNING A BUSINESS IN PARTNERSHIP
Chapter 13 THE START OF A PARTNERSHIP
13.1 Introduction
13.2 What is a partnership?
13.3 Setting up a partnership
13.4 Formalities required by statute
13.5 The law of partnership and its use in joint ventures
Chapter 14 THE PARTNERSHIP AGREEMENT
14.1 Introduction
14.2 Commencement date
14.3 Name
14.4 Financial input
14.5 Shares in income profits/losses
14.6 Drawings
14.7 Shares in increases/decreases in asset values
14.8 Place and nature of business
14.9 Ownership of assets
14.10 Work input
14.11 Roles
14.12 Decision-making
14.13 Duration
14.14 Retirement
14.15 Expulsion
14.16 Payment for outgoing partner’s share
14.17 Restraint of trade following departure
14.18 Arbitration
Chapter 15 PARTNERS’ RESPONSIBILITIES
15.1 Introduction
15.2 Utmost good faith
15.3 Further responsibilities implied by the Act
15.4 Contractual responsibilities
Chapter 16 LIABILITY FOR THE FIRM’S DEBTS
16.1 Introduction
16.2 When will the firm be liable?
16.3 Against whom can the firm’s liabilities be enforced?
16.4 What if a partner cannot pay?
16.5 Summary
Chapter 17 DISSOLUTION
17.1 Introduction
17.2 When does dissolution occur?
17.3 Express terms on dissolution
17.4 The business, its goodwill and other assets following dissolution without continuing partners
17.5 Distribution of proceeds following sale of the business or its assets
17.6 Following dissolution, who winds up the firm’s affairs?
Chapter 18 LIMITED LIABILITY PARTNERSHIPS
18.1 Introduction
18.2 Formalities
18.3 Authority of a member to bind the LLP
18.4 Owning property and the granting of charges
18.5 New members
18.6 Effect of limited liability
18.7 The LLP agreement
18.8 Designated members
18.9 The duties and responsibilities of members
18.10 Capital and profits
18.11 Management and decision-making
18.12 Cessation of membership and its consequences
18.13 Advantages and disadvantages of an LLP
18.14 Applications of an LLP
Part III Summary – Running a Business in Partnership
PART IV INSOLVENCY
Chapter 19 CORPORATE INSOLVENCY
19.1 Introduction
19.2 When is a company insolvent and how is this proved?
19.3 What is liquidation?
19.4 The liquidation process and the effect on the company and its directors
19.5 Preserving and increasing the company’s assets
19.6 Distr