CONSEQUENCES OF INCORPORATIONCONSEQUENCES OF INCORPORATION Separate Legal Personality Separate Legal Personality (a)(a)Company is liable for its own dCompany is liable for its own d

ebts ebts

The shareholders are not liable fThe shareholders are not liable for the debts and liabilities of thor the debts and liabilities of the company and cannot be sued e company and cannot be sued by the company’s creditors. A by the company’s creditors. A shareholder can be a debtor or shareholder can be a debtor or creditor of the company and cacreditor of the company and can sue or be sued by the compann sue or be sued by the company. y.

Salomon v A Salomon & Co Ltd Salomon v A Salomon & Co Ltd (Page 2 of Textbook) (Page 2 of Textbook)

Lee v Lee’s Air Farming Ltd (Page 3 of Textbook)Lee v Lee’s Air Farming Ltd (Page 3 of Textbook)

(b) Limited Liability (b) Limited Liability The fact that the company is a separate The fact that the company is a separate person from its shareholders makes liperson from its shareholders makes limited liability possible. mited liability possible. (NOTE : the company’s liability is alw(NOTE : the company’s liability is always unlimited - it is the members’ liaays unlimited - it is the members’ liability that is limited and that liability is bility that is limited and that liability is to the company, not to the individual cto the company, not to the individual creditors.) reditors.)

(c) Company Property (c) Company Property A company owns its own property - the A company owns its own property - the shareholders have no direct right to thishareholders have no direct right to this or any share of it. s or any share of it.

Good Profits Development Ltd v Leung Good Profits Development Ltd v Leung Hoi (Page 3 of Textbook)Hoi (Page 3 of Textbook)

Person who no longer wishes to be a member is only Person who no longer wishes to be a member is only entitled to whatever price he can get for his shares. entitled to whatever price he can get for his shares.

A shareholder has no legal interest in the companyA shareholder has no legal interest in the company’s property and cannot insure it against theft, dam’s property and cannot insure it against theft, damage, etc. age, etc.

Macaura v Northern Assurance Co (Page 2 of TextboMacaura v Northern Assurance Co (Page 2 of Textbook)ok)

(This may not apply to someone who is a secured de(This may not apply to someone who is a secured debenture holder.) benture holder.)

(d) Contractual Capacity (d) Contractual Capacity A company has full contractual capacity A company has full contractual capacity - and only the company can enforce its c- and only the company can enforce its contracts. ontracts.

(Companies may also be liable in neglig(Companies may also be liable in negligence - shareholder cannot be made liablence - shareholder cannot be made liable for the negligence of the company, une for the negligence of the company, unless he was also personally negligent). less he was also personally negligent).

(e) Crimes (e) Crimes A company can be convicted of a crimA company can be convicted of a crim

e, regardless of whether its directors ae, regardless of whether its directors are also convicted. re also convicted.

Some limitations: Some limitations: - it has been held that a company - it has been held that a company

cannot be convicted of a crime cannot be convicted of a crime which requires the physical act of which requires the physical act of driving a vehicle: driving a vehicle:

- a company cannot be convicted of - a company cannot be convicted of any crime for which the only any crime for which the only available sentence is imprisonment.available sentence is imprisonment.

There are particular problems with crimes wThere are particular problems with crimes which require mens rea ("a guilty mind") - mohich require mens rea ("a guilty mind") - most common law crimes require mens rea, whst common law crimes require mens rea, while many statutory offences involve strict criile many statutory offences involve strict criminal liability. minal liability.

In order to convict companies of common laIn order to convict companies of common law crimes, courts may regard the mens rea of w crimes, courts may regard the mens rea of those individuals who control the company tthose individuals who control the company to be the mens rea of the company. o be the mens rea of the company.

However, the courts have been very restrictiHowever, the courts have been very restrictive in their use of this approach: ve in their use of this approach:

Crimes Against the Company Crimes Against the Company A company can be the victim of crime. A company can be the victim of crime.

It is theft to steal from a company, eveIt is theft to steal from a company, even if those accused of the theft are also tn if those accused of the theft are also the company’s only shareholders: he company’s only shareholders:

(f) Perpetual Succession (f) Perpetual Succession Separate personality means that the exSeparate personality means that the existence of a company does not depend istence of a company does not depend on the existence of its members. on the existence of its members.

Membership may change or members Membership may change or members may die - the company continues in exmay die - the company continues in existence until wound up. istence until wound up.

(g) Borrowing (g) Borrowing

A company can borrow money and grant a security A company can borrow money and grant a security for a debt. Only a company can create a floating chafor a debt. Only a company can create a floating charge. rge.

Floating charge = a kind of security for a loan. The cFloating charge = a kind of security for a loan. The charge "floats" because is does not attach to any partiharge "floats" because is does not attach to any particular asset, but floats over the company’s assets as cular asset, but floats over the company’s assets as they exist from time to time. Certain events cause ththey exist from time to time. Certain events cause the charge to "crystallise" and attach to whatever assete charge to "crystallise" and attach to whatever assets the company has at the time. s the company has at the time.