Pre-incorporation contract: A comparative analysis of the Canadian and Nigerian corporate law regimes

2021 ◽  
Vol 3 (1) ◽  
pp. 29-42
Author(s):  
Wiseman Ubochioma
Keyword(s):  
Comparative Analysis ◽  
Common Law ◽  
Corporate Law ◽  
Third Party ◽  
Legal Regimes ◽  
The Common ◽  
A Company

The question of how best to protect the interests of a promoter, a third party, and a company in pre-incorporation contracts is one that seems to have defied corporate law. Although this problem has its origin in common law, various countries have made efforts to address it through statutory reforms. The paper, therefore, examines the extent to which the Canadian and Nigerian legal regimes for the pre-incorporation contract have provided panaceas to the problem. This paper, through a comparative analysis, argues that although the legal regimes have made efforts to reform the common law rule on pre-incorporation contracts, they suffer patent defects. It also posits that notwithstanding the defects in the laws, the Canadian legal regimes offer more protection to parties to pre-incorporation contracts than Nigerian law. The paper suggests reforms in both regimes that would meet the reasonable expectations of the parties to a pre incorporation contract

Third Party Beneficiary: A Comparative Analysis

1976 ◽  
Vol 11 (3) ◽  
pp. 315-338 ◽  
Author(s):  
Gabriela Shalev
Keyword(s):  
Comparative Analysis ◽  
Legal System ◽  
Common Law ◽  
Third Party ◽  
Critical Examination ◽  
Legal Research ◽  
General Part ◽  
The Common ◽  
Comparative Survey ◽  
The Right

Chapter 4 of the new Israeli Contracts (General Part) Law, 1973, introduces the concept of a contract in favour of a third party, while granting express recognition to the right of a third party beneficiary. Even those, (including the author) who maintain, that the right of a third party beneficiary could and should be derived, even before the commencement of the new Law, from the general principles and premises of the old Israeli law of contract, cannot fail to see in the above-mentioned chapter an important innovation in the Israeli legal system.This paper is a comparative analysis of the institution of third party beneficiary. The analysis will consist of a presentation and critical examination of the central concepts and doctrines involved in the institution under discussion, and it will be combined with a comparative survey of the arrangements adopted in various legal systems. The choice of this approach stems from the particular circumstances of the new legislation.While in most countries, comparative legal research is a luxury, in Israel it is a necessity. The new legislation in private law is inspired to a great extent by Continental codifications. As far as the law of contract is concerned, Israel is now in the process of becoming a “mixed jurisdiction”: departing from the common law tradition and technique, and heading towards an independent body of law, derived from various sources, mainly Continental in both substance and form.

scholarly journals Transparency in corporate governance: Extent of directors duty to declare interest in company’s transactions

2015 ◽  
Vol 11 (1) ◽  
pp. 137-148 ◽  
Author(s):  
Anthony O. Nwafor
Keyword(s):  
South Africa ◽  
Corporate Governance ◽  
United Kingdom ◽  
Comparative Analysis ◽  
Common Law ◽  
Men And Women ◽  
Legal Personality ◽  
The Common ◽  
The Law ◽  
Important Position

The realization that the directors occupy important position in corporate governance, and as business men and women, cannot be prevented from having dealings with the company, demand a close scrutiny of corporate transactions in which they are directly or indirectly involved or have an interest to ensure that such interest is not placed above their duty to the company. One of the ways in which the law strives to achieve this balance is by imposing a duty on the director to disclose to the board any interest he has in company’s transactions. This requirement which was previously governed by the common law and the company’s articles, is presently increasingly finding a place in companies statutes in different jurisdictions. The paper examines, through a comparative analysis, the provisions on the duty of the director to disclose interest in company’s transactions in South Africa and United Kingdom with the aim of discovering the extent to which the statute in both jurisdictions upholds the common law prescriptions. The paper argues that the need for transparency in corporate governance and the preservation of the distinct legal personality of the company demand that the duty to disclose interest should be upheld even in those cases of companies run by a sole director.

Directors’ Duties

2018 ◽  
Author(s):  
Victor Joffe QC ◽  
David Drake ◽  
Giles Richardson ◽  
Daniel Lightman QC ◽  
Timothy Collingwood
Keyword(s):  
Common Law ◽  
Corporate Law ◽  
Legal Analysis ◽  
Legal Personality ◽  
Reasonable Care ◽  
A Company ◽  
Normative Role

The general duties imposed upon directors are the corollary of their powers; they spring from the directors’ functional and normative role in conducting the company’s affairs and affecting its legal relations. Corporate law and the constitution of the company repose in them powers to act, within certain bounds, in the company’s name. And in doing so, they necessarily affect all those interested in the company’s fortunes: most fundamentally, its members. The separate legal personality afforded to a company serves, for the purposes of legal analysis, as a nexus for its members’ interests, and makes it possible to describe directors in the exercise of their powers as agents for the company. These tenets explain the origin of some of the basic duties that apply to directors in relation to the exercise of their functions: to promote the interests of the company; to exercise reasonable care, skill, and diligence; not to exceed the limits of their powers; not to profit from their position; and not to place themselves in positions where their own interests or other duties conflict with their duties to the company. In doing so, they draw on equitable and common law principles of wider application, to agents, trustees, partners, and professionals.

7. Privity of contract and third party rights

2021 ◽  
pp. 307-358
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Common Law ◽  
Case Law ◽  
Contract Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Subject ◽  
The Common ◽  
Contractual Obligations ◽  
Privity Of Contract

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines privity of contract, its relationship with consideration, and the ability of third parties to enforce contractual provisions for their benefit. The doctrine of privity of contract provides that the benefits of a contract can be enjoyed only by the parties to that contract and only parties can suffer the burdens of the contract. At common law, third party beneficiaries could not enforce a contractual provision in their favour so various devices were employed seeking to avoid privity. Statute now allows for direct third party enforcement but in limited circumstances. This chapter examines the background to privity and the attempted statutory reform in the Contracts (Rights of Third Parties) Act 1999 as it has been interpreted in the case law. The chapter also discusses the common law means of avoiding privity as illustrated by the case law, e.g. agency, collateral contracts, and trusts of contractual obligations. Finally, it assesses the remedies available to the contracting party to recover on behalf of the third party beneficiary of the promise, including the narrow and broad grounds in Linden Gardens Trust. It concludes by briefly considering privity and burdens—and the exceptional situations where a burden can be imposed on a person who is not a party to the contract.

10. Distributions and maintenance of capital

2019 ◽  
pp. 252-281
Author(s):  
Derek French
Keyword(s):  
General Principle ◽  
Common Law ◽  
Court Cases ◽  
Share Capital ◽  
Capital Transfer ◽  
The Common ◽  
A Company

This chapter examines the controls imposed on return of a company’s capital to its members, first by considering the common law general principle that return of capital to shareholders is illegal unless permitted by statute. It then discusses the problem of how to distinguish between a legal distribution of profits and an illegal return of capital; transfer of profits to a capital redemption reserve and use of profits to pay up bonus shares; company’s issuance and redemption of redeemable shares or purchase of its own shares; purchased shares as treasury shares; and how a company may reduce its issued share capital by special resolution. The chapter also looks at capitalisations and employees’ share schemes. It includes analysis of three court cases that are particularly significant to distributions and the maintenance of capital.

3. Special duty problems: omissions and acts of third parties

2019 ◽  
pp. 49-59
Author(s):  
Kirsty Horsey ◽  
Erika Rackley
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Duty Of Care ◽  
The Third ◽  
The Common ◽  
Relationship Of ◽  
Special Duty

This chapter discusses the problem of when a duty of care arises in respect of negligent omissions, or for the actions of a third party. The common law takes the view that it would be too great a burden to impose liability upon a person for a mere omission, or for the actions of others. Despite this, duties can in fact be imposed in various ways, all of which focus on the reliance of the claimant upon the defendant. This can come about either by the previous conduct of the defendant, which induces reliance by the claimant that the defendant will continue to act in that way, or by reliance which comes out of a relationship of dependence between the parties. As regards third parties, a duty may arise where the defendant has control over or responsibility for the third party’s actions.

Part 2 Specific Issues of Arbitration in Brazil, 15 Post M&A Arbitration

2020 ◽  
Author(s):  
Ferro Marcelo Roberto ◽  
de Souza Antonio Pedro Garcia
Keyword(s):  
Mergers And Acquisitions ◽  
Information Asymmetry ◽  
Dispute Resolution ◽  
Common Law ◽  
Cross Border ◽  
Fertile Ground ◽  
Legal Regimes ◽  
Target Company ◽  
The Common

This chapter addresses post-mergers and acquisitions (M&A) arbitration. M&A transactions provide fertile ground for litigation. These complex transactions usually give rise to a significant level of information asymmetry between the parties regarding the target company. Buyer and seller harbour opposing interests concerning the sale value. Representations and warranties, as well as the allocation of risk among parties, although aimed at facilitating the closing of the transaction, also frequently create tension and give rise to dissonant expectations during the post-closing phase. Cross-border M&A transactions add even more layers of complexity given the different business cultures and legal regimes involved. Even though M&A deals have established standard global commercial practices, which follow the common law framework, they still raise a series of challenges for parties, stakeholders, and legal advisors, generating all types of post-closing disputes. Although there are several means of dispute resolution, M&A parties have reliably chosen arbitration as a method for resolving their disputes in Brazil. The chapter then looks at the issues that most frequently feature in the arbitration of international M&A disputes in Brazil.

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