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Requirement
Question 1
Provide a balanced account of the factors that might be relevant when deciding whether to use a limited liability company or partnership format for a new business venture under English Law.
Answer:
The first and foremost factor to be considered is liability for new business ventures In partnership the partners are personally liable for the debts of the company, whereas in Limited Liability Companies, the liability is limited. Compulsory taxation, partnership very easy to set up, and not expensive, limited liability Company requires lot of finance, Partnership agreements in writing are a must as lots of disputes arise due to oral agreements, In Limited Liability Companies, the owners are not liable personally, so less disputes (The Uniform Limited Partnership Act, 1922).
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Question 2
Read the following cases and be prepared to explain their significance in the context of modern business law
i. Moss v Elphick [1910] 1 KB 846
ii. Williams v Natural Life Health Foods [1998] 1 WLR 880
iii. M Young Legal Associates v Zahid [2006] EWCA Civ 613
iv. Re Spectrum Plus Ltd [2005] UKHL 41
v. Actionstrength v INGLEN [2003] UKHL 17
vi. Barbados Trust [2007] EWCA Civ 148
vii. OFT v Abbey National [2009] UKSC 6
Answer:
Significance of business law in following cases:
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i. Moss v Elphick [1910] 1 KB 846
The judgement in this case is significant, as though it was provided in partnership agreement that it can be terminated by mutual agreement only, the Court found it difficult to decide on an application by one partner for termination of partnership, and the said problem is still in the Partnership Act (The Uniform Limited Partnership Act, 1922). Limited Liability Company formation is new and no precedents are available in case the disputes arise. -
ii. Williams v Natural Life, Health Foods [1998] 1 WLR 880
This case is very important as it was held that the corporation is a separate legal entity from that of its directors, thus director is not liable to the third party on the basis of assumption of responsibility, and for the assumption of responsibility, it is necessary that third party relied on anything that was conveyed by the director to make director liable (Bailii.org, 2016). Thus, the company is liable for any information given negligently. -
iii. M Young Legal Associates v Zahid [2006] EWCA Civ 613
The case was significant, as it was held that the intention of the parties was important, the person was liable to the third parties along with the other partners, though he was not sharing any profits from the partnership firm and though he was given a fixed amount, whether the firm made profits or losses (vLex, 2013). -
iv. Re Spectrum Plus Ltd [2005] UKHL 41
The decision brought about a different form from what was stated in law prior to the ruling herein and settled legal issues related to floating charges and risk as to the recharacterization. The security documents of the company being important, a modification wherein it is provided that the book debts proceeds cannot be transferred by assignment and should be paid to the blocked account (Publications.parliament.uk, 2006). The ruling gave the effect that was prospective in the matter of the largest preferred creditor. -
v. Actionstrength v INGLEN [2003] UKHL 17
It is an important decision in the matter of estoppel and the Statute of Frauds, It was held that in case of oral guarantee if credit is given, it does not give any reason for arousal of estoppel, means estoppel cannot be invoked, as it needed further more encouragement or assurance (Bailii.org, 2003). -
vi. Barbados Trust [2007] EWCA Civ 148
The significance of this case is the decision that the trust cannot sue for the recovery of the unpaid debts as a beneficiary under Declaration of Trust, as if done, it would circumvent the contractual restrictions on account of an assignment, as the assignment is allowed between financial institutions only (vLex, 2016). -
vii. OFT v Abbey National [2009] UKSC 6
It is significant case law as the Supreme Court held that the overdraft that was unplanned, was incapable of assessment as bank charges were the main term for bank accounts that were related to the remuneration of the bank (Term, 2016).
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Bailii.org, (2003). Actionstrength Ltd (t/a Vital Resources) v. International Glass Engineering In.Gl.En. SpA & Ors [2003] UKHL 17 (3 April 2003). [online] Available at: http://www.bailii.org/uk/cases/UKHL/2003/17.html [Accessed 27 Jan. 2016].
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Bailii.org, (2016). Williams & Anor v Natural Life Health Foods Ltd & Anor [1998] UKHL 17 (30 April 1998). [online] Available at: http://www.bailii.org/uk/cases/UKHL/1998/17.html [Accessed 27 Jan. 2016].
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Publications.parliament.uk, (2006). House of Lords - National Westminster Bank plc (Respondents) v. Spectrum Plus Limited and others and others (Appellants). [online] Available at: http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd050630/nat-1.htm [Accessed 27 Jan. 2016].
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Term, M. (2016). Office of Fair Trading (OFT) v Abbey National plc & Ors [2009] UKSC 6 (25 November 2009). [online] Bailii.org. Available at: http://www.bailii.org/uk/cases/UKSC/2009/6.html [Accessed 27 Jan. 2016].
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The Uniform Limited Partnership Act. (1922). Columbia Law Review, 22(7), p.669.
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vLex, (2016). Barbados Trust Company Ltd v Bank of Zambia & Anor, Court of Appeal - Civil Division, February 27, 2007, [2007] 1 Lloyd's Rep 495,[2007] EWCA Civ 148 - Case Law - VLEX 52566200. [online] Available at: http://court-appeal.vlex.co.uk/vid/and-52566200 [Accessed 27 Jan. 2016].
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vLex, (2013). M Young Legal Associates Ltd v Zahid (a firm) & Ors, Court of Appeal - Civil Division, May 16, 2006, [2006] EWCA Civ 613,[2006] 1 WLR 2562 - Case Law - VLEX 52568422. [online] Available at: http://court-appeal.vlex.co.uk/vid/-52568422 [Accessed 27 Jan. 2016].
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