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4. Commercial law > Concepts > Flashcards

Concepts Flashcards

(59 cards)

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1
Q

Agent

A

Agent is enabled to act on behalf of the principle and act on behalf of the principle for the party.

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2
Q

Fiduciary relationship

A

Principle can place trust in agent and can expect loyalty.

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3
Q

Authority and ratification

A

If agent works outside of their authority, principle can ratify them if they agree their actions are okay.

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4
Q

Requirements for ratification

A
  • Principle must have existed.
  • Legal capacity
  • Transaction can’t be void
  • Within set time limit
  • Informed choice to ratify
  • Can’t unfairly prejudice rights of other parties.
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5
Q

Artificial/juristic persons

A

Man made legal personality - companies, partnerships etc.

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6
Q

Partnership property

A

Property owned by a partnership with aims of bringing profit to the business.

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7
Q

Corporate veil

A

Implications of the separate legal personalities. Protects directors and members/shareholders.

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8
Q

Elements of a company

A

Separate legal personality.
Owned by members.
Managed by directors.
Requires to be registered.

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9
Q

Roles of a director

A

Act as an officer
Make decisions
Direct commercial and admin matters
Ensure regulatory requirements are met

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10
Q

Grounds for disqualification

A

Conviction of indictable offence
Breach of company legislation
Committing fraud Failure to make returns of company docs.

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11
Q

Directors duties

A

Fiduciary duties
Duty of skill and care
Statutory duties

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12
Q

Directors statutory limitations

A

Modify articles of association
Modify company name
Modify company capital

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13
Q

Requirements of ratification

A

Principle must have existed.
Had legal capacity.
Cannot have been void.
Within set time limit.
Informed choice made to ratify.
No unfair prejudice.

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14
Q

Mercantile agents

A

Agents that have authority to sell or cosign for the purpose of sale.

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15
Q

What is partnership

A

‘Partnership is the relation between persons carrying on a business in common with a view of profit’

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16
Q

Dissolution of partnership

A

Ends legal personality but patrimony remains. Either must pay outstanding debts or distribute remaining assets.

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17
Q

Limited partnerships

A

Protects patrimony but means they cannot engage with management, only invest into it

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18
Q

Remedies against a company

A

Remedial order to prevent breach from happening again.
Publicity order to name and shame.
Unlimited fine.

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19
Q

Types of meetings

A

AGM
Emergency general meeting
Class meetings
Board of directors

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20
Q

Remedies for breach of duty

A

Reimbursement for any loss suffered by the company.
Repayment of expenses.
Payment of profit lost by company.
Director dismissal
Interdict

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21
Q

De facto directors

A

Without being formally appointed, the law can deem some people to be a director.

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22
Q

Duties of secured creditors

A

Restore the property which provided the security.
Reasonable care to protect interests of debtor.

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23
Q

Voluntary rights in security

A

Pledge
Assignation and intimation
Standard security
Floating charge

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24
Q

Pledge

Study These Flashcards
A

Applies to corporeal moveable property.
Transfer of possession of the property.
Consumer Credit Act 1974

25
Assignation and intimation
Incorporeal moveable property. Title of the property is assigned to the creditor by the debtor. Assignation is intimated to the account debtor included in the company's register.
26
Standard security
Conveyancing and Feudal Reform (Scotland) Act 1988. Heritable property Must be registered in land registers
27
Floating charge
Applies to all property owned by the company.
28
Lien
A person retains another moveable property until paid for.
29
Hypothec
A real right in security over moveable property. Landlords hypothec Solicitors hypothec Maritime liens.
30
Caution
A person becomes bound to repay the debt of another.
31
Cautioner rights
Relief Division Assignation
32
Diligence
The procedure by which a creditor obtains possession of or a right to some property to satisfy debts owed to them.
33
Pre-requisites for executing diligence
Must be debt because of valid obligation. Debt must be proven in court. The decree authorises or is a warrant to execute diligence
34
Attachment
Moveable property in possession of the debtor is seized and sold. Before this can take place, creditor must issue debt advice and info package.
35
Restrictions on attachment
Tools of the trade up to £1000 Vehicle which debtor requires Mobile home Money
36
Earnings arrestment
Earnings arrestment Current maintenance Conjoined arrestment order
37
Debtor protection
Time to pay direction Time to pay order Debt arrangement scheme
38
Inhibition
Attaches and inhibits all heritable property owned by the debtor at the time of registration of then deed on inhibition.
39
Effect of inhibition
Prevents the debtor selling nay heritable property and bars others from becoming the owner of the heritable property.
40
Adjudication
Rarely used. Might be executed following; - Action for payment - Action for adjudication
41
Freezing
Inhibit the debtors ability to deal with or manage their own property.
42
Insolvency
When the debtor is unable to pay its creditors. (bankruptcy)
43
Absolute insolvency
A debtor is absolutely insolvent if its liabilities exceed its assets.
44
Apparent insolvency
If a debtor is unable to pay debts, then the debtor may be practically insolvent.
45
Liquid debt
Where the amount is known or readily ascertainable - the amount on your overdraft.
46
Illiquid debt
Some further process is required to ascertain the precise amount of liability. A claim for personal injury is illiquid, until the court determines the extent of the injured persons loss and damage.
47
Types of liquidation
Members voluntary liquidation. Creditors voluntary liquidation. Compulsory winding up by the court.
48
Key features of liquidation
Does not involve insolvency. Typically wound up because the purpose for which the company formed has been fulfilled. No prejudice to creditors. Surplus capital is paid to the members/contributories.
49
Role of the liquidator
Ingathering assets of the company. Adjudication on claims. Ranking and payments of creditors' claims according to the prescribed priority.
50
The effect of dissolution after a winding up.
The company, which is the principal debtor ceases to exist. Does not result in discharge of the company from liabilities for pre-liquidation debts.
51
Types of insurance
First party insurance. Third party insurance. Indemnity insurance. Non-indemnity insurance.
52
Insurable interest
Insured must have an insurable interest under the contract of insurance. Exists if the person taking out insurance is at risk of suffering a loss or disadvantage if the insured event occurs. Without insurable interest the contract is either void/illegal unenforceable.
53
Arbitration
Form of alternative dispute resolution. The disputants, rather than seeking judgement of a state official, choose and appoint one or several agreed private judges to hear the case and the outcome.
54
Why go to arbitration?
Flexibility Individual parties can choose to submit arbitration Shorted timeframe Parties appoint the judge Confidentiality.
55
Insurer need not pay if
Insured has no insurable interest Matter/loss is not covered by the policy. Policy is void. Policy is discharged. Claim has not been properly made.
56
Proper plaintiff rule
The proper plaintiff for a wrong done to the company is the company itself.
57
Majority principle rule
The choices of the majority shareholders prevail over those of the minority shareholders.
58
Sequestration
Legal process done through the court or AiB that formally declares bankruptcy.
59
Warranties
Made by the insured to the insurer, like a promise, must be strictly complied. Must be incorporated into the insurance contract. Policy may include terms labelled as warranties. Warrant of past or present, warranty of the future, warranty of opinion

4. Commercial law (3 decks)

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