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Chapter

This chapter discusses the obligations imposed on directors of companies to maintain proper accounting records, prepare annual financial statements and reports on the company’s business and disclose this information to members and the public. Requirements for companies to report their financial position to their members and to the public vary according to whether the company is a micro-entity, or is small, medium-sized or large. A company is subject to additional requirements if it is a quoted company. The definitions of these categories are set out and the rules applying to each category are summarised. The chapter discusses the form and contents of annual accounts and the contents of the strategic report and directors’ report.

Chapter

This chapter deals with the legal relationship of agency that exists between the company and the agent, explaining the process involved in an agent’s authentication and the execution of documents for the company he or she represents. It considers two ways in which a company may become contractually bound to another person (a ‘contractor’) under the provisions of the Companies Act 2006: through a written contract to which the company’s common seal is affixed, or when someone has made a contract on behalf of the company. It also discusses the company’s capacity to enter into contracts, including the ultra vires rule, and attribution by a court so as to impose criminal liability on a company. A number of court cases relevant to the discussion are cited.

Chapter

This chapter deals with the legal relationship of agency that exists between the company and the agent, explaining the process involved in an agent’s authentication and the execution of documents for the company they represent. It considers two ways in which a company may become contractually bound to another person (a ‘contractor’) under the provisions of the Companies Act 2006: through a written contract to which the company’s common seal is affixed, or when someone has made a contract on behalf of the company. It also discusses the company’s capacity to enter into contracts, including the ultra vires rule, and attribution by a court so as to impose criminal liability on a company. A number of court cases relevant to the discussion are cited.

Chapter

Although there is no formally agreed definition of alternative dispute resolution (ADR), it is generally accepted as including all methods of resolving disputes other than through formal litigation. The use of ADR has developed significantly over the past few decades and despite the use of the word ‘alternative’ it is now very much part of mainstream thinking in modern-day dispute resolution. The importance of ADR to civil actions was reinforced by the Civil Procedure Rules in 1998, which emphasized it as part of the overriding objective, encouraged at all stages of the dispute process, from pre-action to after litigation has commenced. This is reinforced by sanctions that a court can impose on a party which fails properly to embrace the process. The Review of Civil Litigation Costs carried out by Jackson LJ further promoted the importance and use of ADR. There are many different forms of ADR, both adjudicative and non-adjudicative. This chapter will focus on the use of mediation as a non-adjudicative form of ADR and the steps the courts take to require (rather than compel) the parties to attempt to resolve their disputes.

Chapter

Put broadly, insurance is a contractual process whereby risk is transferred from a person who might incur a loss to an insurer. Whilst insurance law is at root merely an example of applied contract, in fact it has some unique characteristics and practices and a terminology all of its own. In this chapter we will consider the key characteristics of insurance law. After examining the meaning of insurance, including the concepts of indemnity and insurable interest in liability and property insurance, we move to the structure of insurance policies. The ways the courts have interpreted insurance wordings and insurance warranties, conditions precedent, and basis of the contract clauses are dealt with before the extensive reforms wrought by the Insurance Act 2015 are introduced. Insurance policies, even so-called all risks policies, do not cover all causes of loss which an insured might suffer, so the concept of causation in insurance is particularly important and this is dealt with next. The chapter closes by reviewing insurance claims, including the effect of fraudulent claims, how the level of disclosure expected of an insured is far higher than in a non-insurance context, and how these issues have been the subject of substantial reform under the newInsurance Act.

Chapter

This chapter is intended to introduce the reader to the UN Convention on the International Sale of Goods otherwise known as the ‘Vienna’ Convention or the ‘Convention of the International Sale of Goods (CISG). This chapter is intended to introduce the reader to the UN Convention on the International Sale of Goods otherwise known as the ‘Vienna’ Convention or the ‘Convention on the International Sale of Goods (CISG). The chapter begins with a discussion of the scope and application of the convention along with the difficulties with its interpretation and the problem of ensuring consistency across all jurisdictions. It then deals with the substantive provisions of the convention covering offer and acceptance, resolving the battle of the forms and variation of contract. It then details the rights, duties and remedies of the parties especially where these differ from English law, for example in relation to the seller’s right to cure, and the right to reduce the price in the event of breach and particularly the limitations on the right of either party to terminate the contract. It ends with a table comparing in summary form. the provisions of the CISG with the position in English law,

Chapter

Ross Cranston, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare

The chapter first discusses the general principles governing a bank's liability. One way to approach the topic involves a consideration of the relevant doctrines whereby banks can incur liability. Section I selects just a few such doctrines. Another approach considers the various factual matters which feed into legal decisions about bank liability. The same factors recur across different legal doctrines: indeed, they arise for consideration in other systems of law. This is the focus of Section II. Section III considers advisory liability, which can arise in two ways: a failure to advise where the law imposes a duty to do so, and a failure to advise adequately when a bank assumes the task of advising a customer or third party. Section IV turns to the English law doctrines which have a particular application to transactions involving those the law regards as vulnerable. The final section deals with ‘lender liability’.

Chapter

This chapter deals with articles of association, the principal element of a company’s constitution, under the Companies Act 2006. It describes the content of the articles, model articles of association which can be adopted by limited companies (either in whole or in part) on registration, and the function of articles as a contract between the company and its members and between the members themselves. It also considers provisions of articles that may be incorporated in other contracts and the right of members of a company to amend its articles. The chapter discusses a number of particularly significant court cases, including Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 and Quin and Axtens Ltd v Salmon [1909] AC 442.

Chapter

This chapter deals with articles of association, the principal element of a company’s constitution, under the Companies Act 2006. It describes the content of the articles, model articles of association which can be adopted by limited companies (either in whole or in part) on registration, and the function of articles as a contract between the company and its members and between the members themselves. It also considers provisions of articles that may be incorporated in other contracts and the right of members of a company to amend its articles. The chapter discusses a number of particularly significant court cases, including Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 and Quin and Axtens Ltd v Salmon [1909] AC 442.

Chapter

D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner

This chapter deals with the general law of assignment of choses in action. Beginning with the historically based difference between equitable and statutory assignment, it then explains what ‘chose in action’ and ‘assignment’ are before discussing the requirement that there be an existing and assignable chose in action or right as well as the requirement that a person who holds an existing assignable chose in action intends to assign it. It also examines whether and when a rule of legal formality requires writing to be made; whether and when notice of the assignment is required; and obstacles to the enforcement of an assigned chose in action.

Chapter

This chapter places the authority of an agent as a central concept of the law of agency, identifying two principal types of authority, namely actual authority (both express and implied, and the various forms of implied authority, such as customary authority and incidental authority) and apparent authority. There is a third form, known as usual authority, but, as will be seen, the reasoning behind the cases that established this form of authority is highly suspect. All three forms of authority are discussed. Determining the existence and type of authority is vital as the legal consequences of an agent breaching their authority can be severe. The principal may not be bound by the agent’s actions and the agent may instead be personally liable. In addition, the agent may lose the commission/remuneration to which they were entitled, and may be found liable for breach of contract and/or breach of warranty of authority.

Chapter

This chapter places the authority of an agent as a central concept of the law of agency, identifying two principal types of authority, namely actual authority (both express and implied, and the various forms of implied authority, such as customary authority and incidental authority) and apparent authority. There is a third form, known as usual authority, but, as will be seen, the reasoning behind the cases that established this form of authority is highly suspect. All three forms of authority are discussed. Determining the existence and type of authority is vital as the legal consequences of an agent breaching their authority can be severe. The principal may not be bound by the agent’s actions and the agent may instead be personally liable. In addition, the agent may lose the commission/remuneration to which they were entitled, and may be found liable for breach of contract and/or breach of warranty of authority.

Chapter

D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner

This chapter deals with bailment, defined as a transaction under which a bailee lawfully receives possession of goods from a bailor for some purpose. Examples of bailment from commercial law include warehousing, carriage, the deposit of property to have work done on it, leasing, and pledge. A buyer under a sale or return transaction is, pending acceptance or rejection, a bailee of the goods. After explaining what a bailment is, the chapter considers types of bailment and three requirements for a bailment: transfer of possession; ownership remaining in the bailor, or at least not passing to the bailee; and consent by the bailee. It then examines the bailee’s liability and the burden of proof with respect to bailment before concluding with an analysis of bailment involving third parties, focusing in particular on sub-bailment.

Chapter

Ross Cranston, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare

Banks can become distressed for a range of reasons, just like other firms. These reasons may be internal to the distressed bank (e.g. risky lending practices) or external to it (both at industry level and at the macroeconomic level), or both. Distressed banks, however, are not always subject to the same regulatory regime that governs the treatment of distress in other kinds of firms. Banks have special characteristics and this has led to the special treatment, which is explored in this chapter. The discussions cover the justification for special treatment, special resolution regimes, bank resolution regimes at domestic level, and cross-border complexities.

Chapter

Ross Cranston, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare

This chapter considers the relationship which banks have with other banks. The discussion revolves around legal impact and legal consequences, in this case of the various types of inter-bank relationships. It shows that in some cases, banks become the customers of other banks. Some of the issues discussed in the chapter lay the foundation for some of the later chapters, notably that on payment and lending. These relationships between banks are primarily contractual in nature; the concept of the network usefully encapsulates the scope of the discussion. The chapter covers correspondent banking, inter-bank markets and contracts, exchange markets and payment systems, and bank syndicates.

Chapter

Ross Cranston, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare

This chapter discusses banking supervision in practice. It focuses on two jurisdictions: the UK and the European Banking Union (EBU), and considers in particular the type of powers enjoyed by the UK and EBU regulators, and the way they exercise them in their supervisory approaches. In the process the chapter highlights loopholes in the respective regimes and to some extent evaluates their effectiveness. On 1 April 2013 the Financial Services Act 2012 came into force, removing the Financial Services Authority and delivering a new regulatory structure for the UK, which comprises the Prudential Regulation Authority responsible for microprudential regulation and supervision of banks, building societies, and investment firms; and the Financial Conduct Authority, in addition to a financial stability (macroprudential) body within the Bank of England, the Financial Policy Committee. The EBU brought about the centralization of bank supervision and resolution within the Eurozone. The trigger for the establishment of the EBU was the Eurozone debt crisis.

Chapter

Ross Cranston, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare

This chapter focuses on the customer and the services which banks offer to customers. It begins by filling in some of the details about the customers of banks and modern banking services. In this context it gives attention to how the relationship between banks and their customers may be characterized as a matter of law. Contract emerges from this as the overarching feature of the relationship; thus, the second and third sections of the chapter discuss banking contracts and their regulation. The final section turns to a specific banking service, the taking of deposits. Historically this has been the core banking service, and deposit-taking has been central to any definition of banking.

Chapter

Iris Chiu and Joanna Wilson

This chapter discusses the relationship between a bank and its customer. The Bills of Exchange Act 1882 defines a banker to include ‘a body of persons whether incorporated or not who carry on the business of banking’. Meanwhile, upon the opening of an account, a person will be deemed to have become a customer of the bank and there is no requirement for a habitual course of dealings. Although the relationship between a bank and its customer is primarily governed by contract law, there may be circumstances in which the bank undertakes additional obligations, thereby taking the relationship beyond the remit of contract law such that the bank becomes subject to fiduciary duties of trust and loyalty. The chapter then considers the fiduciary nature of the banker–customer relationship as well as undue influence.

Book

Iris H-Y Chiu and Joanna Wilson

Banking Law fully addresses the current landscape of banking law and regulation post the 2008 financial crisis. Coverage is balanced between transactional, regulatory, and private law topics across UK banking law, as well as European and international law. The text aims to cover everything needed for a full understanding. Topics covered include: the banker–customer relationship, payment, regulatory architecture in the UK and the European Union, macroprudential regulation, banking culture, governance, incentives, crisis management and resolution, and combatting financial crime.

Chapter

Iris Chiu and Joanna Wilson

This chapter focuses on the other core function of the banking business alongside taking in deposits from customers: lending. The traditional forms of lending include overdrafts, fixed-term loans, and syndicated loans. An overdraft generally involves an extension of credit by a bank to its customer via the customer’s current account. A fixed-term loan, as the name suggests, is a loan made for a fixed period of time. Meanwhile, a syndicated loan involves two or more banks that each contributes towards making a single loan to a borrower. The chapter then considers lender liability and the different forms of security a bank can use to realise the repayment of a loan in the event of default by the borrower. It also looks at recent innovations in the lending market that offer a competitive alternative to traditional bank lending, including payday lending and peer-to-peer lending.