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#law > last half > Flashcards

last half Flashcards

1
Q

what is a partnership

A

the relation with subsists between persons carrying on business in common with a view of profit

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2
Q

does partnership has a separate identity of its own?

A

a partnership is only relationship between partners.

Limited liability partnerships are different and do have

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3
Q

can ppl in partnership without having agreed about sth should be?

A

yes but they must make a contract

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4
Q

can a company be partner? can a company be partnership?

A

a company can be partner but no partnership

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5
Q

can a partnership exist if profit has ever made?

A

yes, but there must be intention to make profit

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6
Q

what is the essential difference between a partnership and an association?

A

intention to make profit

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7
Q

can ppl be in partnership if they do not make a formal partnership agreement

A

yes, they just need to carry on a business in common with the intention of making profit

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8
Q

13 universal matters which all formal partnership are like lo deal with?

A 
the parties
the nature of the business
the name of the firm
the date
the capital of the firm
the salary and profit
the management
the banking agreement
the firm's account
admission and expulsion of partners
death and retirement pf partners
valuation of goodwill
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9
Q

in what circumstances can a partner terminate the partnership without giving notice

A

if it is a partnership at will

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10
Q

how can a formal partnership be varied?

A

by the agreement of all the partners

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11
Q

can minors be partners?

A

yes, but minors can not become liable for debts

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12
Q

can a majority of partners expel a partner

A

only if a power to do so has been conferred by express agreement

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13
Q

to what extent does a partner own company property?

A

partnership property is held on trust. Prior to dissolution a partner does not personally own any particular item

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14
Q

is an incoming partner liable for debts of the firm which has previously arisen?

A

no

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15
Q

how an a retiring partner cease to be liable for debts which arose prior to his retirement>

A

a retiring partner can be discharge from liability by a novation (a contract to that effect) between himself, the firm as newly constituted and the creditor

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16
Q

on what 4 grounds may a partnership be dissolved under a provision of the partnership act 1890

A

a fixed term has expired / a purpose been achieved
a partner has died/ become bankrupt
a partner has assigned his share of the partnership assets to a creditor in order to satisfy a private debt
an event has happened which makes is unlawful to carry on the business

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17
Q

on what five grounds can a partnership be dissolved by count order?

A

a partner has become incapable pf performing his role
a partner has been guilty of conduct which affects the business
a partner has wilfully of persistently breached the partnership agreement or acted in such a way that is not reasonably practical to continue partnership with him
the business can only be carried on at a loss
the court considers it just and equitable to wind the firm up

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18
Q

can one partner have limited liability for the firm’s debt? can all partners has limited liability?//

A

if they register

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19
Q

Limited Partnership creates Limited Liability for Limited Partners who agree to the following

A
  • No voice in management
  • Liability is limited to amount invested in Partnership (ie, no further personal liability
  • General Partners continue to have Joint and Several Liability
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20
Q

Can a Partner sell his share of the Partnership

A

Generally, no transfer of interest without the unanimous consent of all General Partners

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21
Q

7 factors

A 
Control & Management
Personal Liability
Continuity & Transferability
Creation, Formalities & Costs 
Financing
Tax Structure
Termination
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22
Q

company has a separate legal identity of its own

A

true

23
Q

what is limited liability

A

members of a limited company do not become liable to pay the debts of the company

24
Q

what is meant by perpetual succession

A

a company can continue in existence eventhough all shareholders/ officers leave or die

25
Q

can a company itself own property and make contracts

A

yes

26
Q

what is corporate veil? in what circumstances can veil be lifted?

A

a company in law can not be regarded by its member, a veil separate them (to prevent abuse of company’s legal personality)

27
Q

main differences between public and private company

A

Public companies appear on London stock exchange, need at least 2 directors
at least 50000 pounds allotted share capital (1/4 must a paid up)
have plc or public limited company at the end of their name
must have a company qualified secretary

28
Q

what is the significance of incorporation being issued

A

once the certificate of incorporation is issued, the company comes into existence

29
Q

the purpose of a company’s articles of association>

A

are the rules of the company

30
Q

a passing off action

A

an action in tort to prevent a business from trading under name which is too similar to the name of an existing business or cause confusion

31
Q

Sole Proprietarship

A

the simplest form of business, in which a sole owner and his/her business are not legally distinct entities, the owner being personally liable for business debts

32
Q

can a company voluntarily be wound up by the members?

A

yes, or by the order of the court

33
Q

in what circumstances will a company be deemed unable to pay its debt, there by justifying the court in ordering the company to be wind up

A
  • a creditor who has properly demand payment of more that 750 pounds has not been paid within 3 weeks
  • execution of a court’s judgement against the company in favored of a creditor is returned unsatisfied
  • it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due
34
Q

4 grounds on which the court decide that it is equitable to wind up a company

A
  • the substratum of the company has failed
  • there is a dead-lock in the management of the company
  • there is a justifiable lack of confidence in the management
  • the company was formed for a fraudulent purpose
35
Q

in what order are the creditor of an insolvent company paid?

A 
expenses of winding up are paid
preferential creditors
floating charge holders
unsecured creditor
sums due to member
36
Q

what purpose does an administrator of an company try a achieve? what purpose does an administrative receiver try to achieve?

A

an administrator of a company tries to

  • rescue the company as a going concern
  • achieve a better result for the company’s creditor
  • realise property to distribute to secured or preferential creditor

an administrative receiver realises company property to pay the debts of the floating charge holder who appointed him

37
Q

The general goal of bankruptcy law is to grant a
debtor relief from some of his/her/its burdensome
debts while protecting creditors

A

Legal procedure for settling the debts of
individuals or business entities that are unable
to pay debts as they become due

38
Q

The Petition - The Bankruptcy proceeding begins by the Voluntary vs Involuntary Petition

A

i) Voluntarily Petition - Debtor files
for Bankruptcy relief based on Special Resolution (See,
Section 19.1.2)
ii) Involuntary Petition- Creditors or Court initiate a
Bankruptcy Petition against Debtor filing of a Bankruptcy Petition with the Bankruptcy Court

39
Q

Bankruptcy Dividing Line

A

Filing of a Petition generally fixes a Dividing Line
i) Petition property acquired PRIOR to filing = Property of Bankruptcy
Estate
ii) Property acquired AFTER filing = Remains the Debtors

40
Q

two legal options when facing bankrupt

A

Reorganization:

  • Plan to continue operating the business
  • Develop a corporate restructuring plan
  • Create more efficient expense structure
  • Goal: Position company to compete more effectively
  • Typically, low rate of success

• Liquidation:

  • All assets collected and liquidated / reduced to cash
  • To the extent possible, money is repaid to creditors
41
Q

2 types of Creditors:

A

Unsecured Creditor = handshake + promise to repay debt
• Secured Creditor = requires the Debtor to provide some sort of « security » beyond the mere promise to repay the debt
Advantage: Secured Creditor is in a favored position
in the event of Debtor’s default or bankruptcy

42
Q

Collateral

A

Property which is pledged as satisfaction
for a debt
Property that Debtor offers as security:
1) must be legally “owned” by Debtor
2) in which Debtor has legal interest, and
3) can include both Tangible and Intangible
forms of property

43
Q

Tangible and Intangible Forms

of Collateral

A

Tangibles: All things movable at time the Security
Interest attaches
• Examples: consumer goods, equipment, farm products & livestock, inventory, etc.
• Intangibles: Non-physical property that exists only
in connection with something else
• Examples: stocks, bonds, certificates of deposit, accounts receivable, contract right payments, patents, copyright, etc

44
Q

What is a Close Corporation?

A

Shares held by family members/few persons: often, close/intimate group of shareholders
with intense relationships
Often, no separate functions (no real distinction between shareholders, investors, managers,
employees)
- Generally, management = ownership

45
Q

what type of properly is a share?

A

a share is a type of personal property

46
Q

is it possible for a company to have different classes of share?

A

yes

47
Q

what is a pre-emption right?

A

it give existing shareholders the right to have new shares offered to the in proportion to their existing share holding before they are allotted for cash to new member

48
Q

what percentage of votes is required to pass an ordinary or a special resolution?

A

75

49
Q

Agency law

A
  • all the rules, recognized and enforced by
    courts, whereby one person acts for another
  • without Agency Law, every person would have
    to act directly for himself and could not send a
    representative, salesman or messenger
50
Q

Standard Shareholder Rights

A 
Voting Rights
Preemptive Rights
Right to Transfer Shares
Dividend Rights
Inspection Rights
Shareholders‘ Derivative Suit
Rights on Dissolution
51
Q

Power of Attorney

A

◦ Written authorization to act on someone else’s behalf in
a legal or business matter
◦ Common Law: “POA”
◦ Civil Law: “Mandate”

52
Q

power of attorney

A

Provides an agent with the power to sign legal
documents on behalf of the principal
◦ Agent is called an attorney-in-fact

May be General or Special
◦ General power of attorney: Confers broad powers on
the agent to act in any matters on the principal’s behalf
“to do any act for me”
◦ Special power of attorney: Confers limited powers on
an agent to act on behalf of a principal
“to sell my real estate known as Blackacre”

53
Q

4 types of agency

Apparent authority: Agency is assumed to exist by 3rd
party

Ratification: A. acts for P. either without any authority
or in excess of authority. P later ratifies, either
expressly or impliedly

A

express authority: Occurs when a principal and an
agent expressly agree to enter into an agency
agreement with each other
◦ Exclusive agency contract: Prohibits the principal from
employing any agent other than the one stipulated in the contract

Implied authority: Occurs when a principal and an
agent do not expressly create an agency

54
Q

Fiduciary Duty

A

Fiduciary duty is a legal requirement of loyalty and
care that applies to any person or organization that
has a fiduciary relationship with another person or
organization

#law (5 decks)

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