Örnek Hukuk Çalışma Notları
Uzun süredir maalesef Hukuk İngilizcesi Çalışma Grubumuzla ilgilenemedim... Bu açığı kapatmak için elimdeki bazı notları sizlerle paylaşarak kendimi affettirebileceğimi umut ediyorum
Sadece ben değil, hepimiz İngilizce vekaletname, karar, dilekçe, vasiyetname örneklerimizi, bize faydası dokunabileceğine inandığımız notları buraya ekleyebiliriz.
POWER OF ATTORNEY
IN CONNECTION with all kind of actions, legal proceedings and disputes which may arise in favour or against our Company,.......... International Limited we do hereby nominate as our attorney . Attorney at law of the Bar Association of Istanbul, resident at Cad. Istanbul, Turkiye, to whom we Grant powers and authorities to represent our Company, before any and all courts, assemblies, departments, institutions and all regulatory authorities and settlement committees in all instances and decrees, in all capacities and by all means, to file law suits, perform any and all legal formalities and actions as they may deem fit fort he protection and safe-guard of our rights and interests, to carry out any and all legal proceedings for obtaining final judgements, to proceed with all other legal procedures in relation to any legal actions, enforce all judgements, refer, defer or reject oaths, serve notices and acknowledge the same, respond to notices served, appoint and revoke any and all experts, arbitrators and auditors, challenge judges and make complaints against them, enforce and release seizures, take any and all legal actions with the Execution Offices, participate in actions as imerfering , claimant/defendant for rectification and improvement of judgements, file appealing petitions with the Court of Cessation and apply for revisions of judgements and appear before courts, renounce actions and appeals, and to assign and revoke any and all powers and authorities hereto and from other attorneys.
............... INTERNATIONAL LIMITED
Managing Director Signed At Watford, ......., UK
4 April 2007 This 4th Day Of April 2007
THIS IS THE LAST WILL AND TESTAMENT of me .........., ......., .......Street, ......
I HEREBY REVOKE all former wills and testamentary dispositions heretofore made by me AND DECLARE this to be my last will.
I GIVE, DEVISE AND BEQUEATH the sum of FIVE HUNDRED POUNDS to my friend FANNY DAY of Piccadilly Circus, Soho, free for all taxes or duties whatsoever.
I GIVE DEVISE AND BEQUEATH my house property situated at ........, London, to my nephew, ........., on condition that he allow my faithful servant ......... to continue to reside in the servants quarters of the said house for his lifetime, or, in the event of the sale of the said house, that he, the said ......., find and provide or pay for similar lodgings for the said servant.
I GIVE DEVISE AND BEQUEATH the sum of ........ POUNDS free of all taxes and charges whatsoever, to the PREVENTION OF CRUELTY TO STRAY CATS ASSOCIATION on the condition that the Money be used towards the construction of a cat hospital.
I LEAVE the rest and residue of my estate, whether real or personal, seized or possessed, or to which I may be entitled at my death or after-wards, to my faithful wife ......... for her sole use and benefit absolutely, AND I APPOINT the said ........... to be the sole Executrix of this my will.
I DIRECT that all costs incidental to my funeral, and the execution of this my will be paid out of the rest and residue of my estate.
I EXPRESSLY have made no mention of my daughter ......... for the reason that she has caused me much pain and suffering during my lifetime and I esteem that she has no need to benefit under this my will.
IN WITNESS WHEREOF, I have hereunto set my hand this 17th day of September, 1972.
SIGNED by the above named Testator ........ as and for his last will and testament, in our presence and we, at his request, in his presence of each other, have hereunto subscribed our names as attesting witnesses
........ ......... Secretary Solicitor London London
İcap ve Kabul
OFFER AND ACCEPTANCE
There can be few contract exam papers which do not contain a question on offer and acceptance. Students will often maket his one of their banker questions, but you will need to make sure that you are prepared to deal with any of the forms in which a wuestion about offer and acceptance may be asked. The topics which are covered within this general heading are quiet varied, but are neverthless fairly predictable. General issues which will need to be understood include:
- The nature of an offer and an acceptance is an advertisement an offer? What if an acceptance does not match the offer precisely? The effect of a counter offer;
- The relationship between offer and acceptance on the one hand and agreement on the other the objective approach to determining the existence of a contract; and
- The differences between unilateral and bilateral contracts.
As will be seen from the question in this chapter, problems concerning the communication of offer and acceptance are often asked. In particular, students will need to be familiar with:
- The postal rule (Adams v. Lindsell) the types of communication to which it applies, and the situations where it does not apply;
- Isilence as acceptance the rule in Feitho use v Bindley, and possible exceptions to it;
- The problems, many of them unresolved by the courts, of electronic communications, such as faxes and e mail. Does the postal rule apply to them? If not, when and where do they take effect? And
- The rules governing revocation of an offer, in both bilateral and unilateral contracts can there be revocation once performance of a unilateral contract has started?
Finally, it should be remembered that a question involving offer and acceptance may also sometimes require you to touch on other issues. An example here is Question 3, which brings in intention to create legal relations. You might also find, however, that some offer and acceptance questions (though not the examples used here) will touch on issues like consideration, or mistake.
Students should be familiar with the following areas:
- The meaning of offer: the distinction from an invitation to treat
- The meaning of acceptance: the distinction from a counter offer, and possibility of an acceptance by conduct or silence.
- Subjective and objective approaches to agreement
- The differences between unilateral and bilateral contracts
- The postal rule and its limitations
- Revocation of offers and
- Recall of acceptance.
On 1 November, Albatross plc.(public limited company) sent a letter to Budgie Ltd., with whom the had been negotiating, offering them a contract to service all Albatrosss birdseed processors each month for the next five years at cost of £10,000 per annum. The letter said that Budgie should reply by return of post. Unfortunately, the letter contained an error in the address and was not delivered to Budgie until 6 November. Budgie replied at once accepting. This letter was posted at 11 am on 6 November. In the meantime on 4 November, Albatross had received an offer from Canary Ltd to do servicing work for £9,000 per annum. Albatross, having heard nothing from Budgie, telephoned Canary on 5 November and offered them the contract at £8,000. Canary accepted Albatross sent an e mail to Budgie on 6 November telling them that the offer of 1 November was withdrawn. This e mail was received on Budgies computer system at 10.45 on 6 November, but not read by anyone until 5 pm on the same day.
Advise Albatross, Budgie and Canary.
This question is of a common type, raising issues about the communication of offers and acceptances, and which of two parties is entitled to enforce a contract. On answering such a question, where the timing of events may be very important, it is a good idea to make a chronological plan for example, here:
1 Nov Albatross offer to Budgie, letter posted
4 Nov Canary offer to Albatross, £9,000
5 Nov Albatross counter offer to Canary, £8,000, accepted by Canary
6 Nov 1 Nov offer arrives 10.45 Albatrosss e mail withdrawing offer to Budgie 11.00 Budgies acceptances posted 5.00 Albatrosss e mail read.
This should make it easier to pinpoint the issues for discussion. Particular areas to be considered here are:
- Offers and counter offers
- The operation of the postal rule (Adams v. Lindsell (1818));
- The time of communication of electronic messages, such as e mails and
- The revocation of an offer
This problem raises the issue of whether Albatross is committed to one contract, or two. The answer to this will depend on the precise time at which each contracts was formed. This in turn depends on the point at which communications between the parties take effect, particularly acceptances and revocations of offers.
The English law on the formation of contracts has its centre the need for there to be an offer and a matching acceptance. The offer must set out, or refer to, all the important terms of the contract; the acceptance must indicate agreement to all these. If it does not do so, not only will it not be valid acceptance, but it will be regarded as a counter offer which prevents the original offer from being accepted later (Hyde v Wrench (1840)). An offer can generally, be withdrawn at any time before acceptance is complete.
In the problem, there are three offers, two of which are made by Albatross. One is contained in the letter to Budgie of 1 November, and the other in the phone call to Canary on 5 November (this is strictly speaking a counter offer). The third offer is made by Canary in the letter received by Albatross on 4 November. This offer is rejected by Albatrosss counter offer, and so need not be discussed further.
Which of the other two offers was accepted? In both cases, there was a purported acceptance. Albatrosss first offer is accepted by Budgie in the letter posted on 6 November. Canary accepts Albatrosss offer during their telephone conversation on 5 November. There seems no reason to doubt the effectiveness of this acceptance, so Albatross would appear to have made a binding contract for the servicing of their machines with Canary. Have they also made such a contract with Budgie?
The issue here is the time at which communications are effective when conducted by post or e mail. Looking first at Albatrosss offer to Budgie, this was posted on 1 November, but did not arrive until 6 November. Offers have to be actually communicated to the recipient to be effective, so this offer took effect on 6 November. Budgie posted a reply accepting on the same day. We are not told when this was received, but this may well not matter, if the special postal rule as regards acceptances applies.
The postal rule derives from the case of Adams v Lindsell (1818). In this case, a letter offering some wool for sale was sent to the plaintiffs, but unfortunately, as in the problem, it was misdirected and delayed. The plaintiffs posted a letter of acceptance as soon as they received the offer. After this letter was posted, but before it was delivered, the defendants had sold the wool elsewhere. The plaintiffs brought an action for non-delivery. The court decided that the acceptance should be regarded as having taken effect when posted. The main reason for adopting this rule was that of business efficiency. It was thought that business would be able to operate more effectively if, having posted an acceptance of a contract, they could then proceed on the basis that a valid contract existed immediately, rather than having to wait to receive confirmation that the acceptance had been delivered. Later cases have confirmed that the Adams v Lindsell rule should apply whenever it was reasonable for the offeror to expect the acceptance to be made by post (for example, Henthorn v Fraser (1892)). This expectation can be removed by express instructions from the offeror (as in Holwell Securuties v Hughes (1974) where a requirement for notice in writing displaced the postal rule) or be implicit in the means of communication (for example Quenerduaine v Cole (1883) where an offer by telegram was help to imply a requirement for an acceptance by equally speedy means).
From the facts given here there is no reason to say that the postal rule should be displaced. The offer was made through the post, and specifically asks for a reply by return of post. There is no indication that actual notice of acceptance was specified. What of the fact that the letter was delivered five days after posting? This was the result of the letter being wrongly addressed by Albatross, so that they should take responsibility for it. Indeed, the same had happened in Adams v Lindsell, so it is clear that, despite the fact that the acceptance was not sent until several days after they would have expected, the acceptance must be taken to have been effective at 11.00 am on the 6 November. If this were only relevant communication, then Albatross and Budgie would be bound to a contract created at that point. Albatross however, had tried to withdraw his offer at 10.45 on 6 November. The effectiveness of this attempted withdrawal must now be considered.
The first point to note is that the postal rule has no application here for two reasons. First, there is clear authority from the case of Byrne v van Tienhoven (1880) that the rule does not apply to revocation of offers. Secondly, the case of Entores v Miles Far East Communication (1995) established that the postal rule did not apply to communications by e mail.
If the postal rule does not apply, when exactly is an e mailed revocation effective? In particular for our purposes, does it need to be read by the recipient to be effective, or is it sufficient that it is received on his computer?
Two cases since Entores haye addressed this issue in respect of telexes. In The Brimnes (1975) the Court of Appeal agreed with the judge that the telex took effect when it was received on the recipients telex machine, provided that this was within office hours. In Brinkibon Ltd v Stahag Stahl (1983), Lord Wilberforce suggested a more flexible approach, looking at all the circumstances. On balance, it seems likely that the courts would say that Albatrosss e mail withdrawing his offer was effective at 10.45 on 6 November (assuming that 6 November was a normal working day).
If this is the answer given by the court, then albatross are in a good position. They have their contract at £8,000 with Canary, and have managed to escape from their contract with Budgie. Budgies only hope is to try to argue that the revocation of an offer by fax should not be effective until it is actually communicated. If that is so, then Albatrosss attempted revocation will be ineffective and Budgies acceptance will stand Albatross will then be in the position of having made contracts with both Budgie and Canary, and being unable to fulfil both of them. They run the risk of having to pay substantial damages for breaking one of the contracts. Canary are in the best position. Their contract was clearly formed on 5 November. They can stand aside and leave Albatross and Budgie to sort out.
Nauru'dan Karar Örneği
Nauru System of Government Information
Pacific Governments Nauru
GOVERNMENT OF NAURU
Republic of Nauru
Former Name: Pleasant Islands
Capital: No official capital; government offices in Yaren District
Former Government : UN Trusteeship
Independence: 31 January 1968 (from the Australia-, New Zealand-, and UK administered UN trusteeship)
Constitution: The Constitution of Nauru 29 January 1968
Legal System: Acts of Nauru Parliament and British common law
Suffrage: 20 years of age; universal and compulsory
Official Languages: Nauruan (official, a distinct Pacific Island Language), English widely understood, spoken and used for most government and commercial purposes
Bill & Ors v Nauru Lands Committee  NRSC 1; SC Land Appeal No 3 of 2005 (1 January 2006)
IN THE SUPREME COURT OF NAURU
Land Appeal No. 3/2005
EIDEMOUDE BILL & ORS
NAURU LANDS COMMITTEE
D. Gioura for Appellant
Lea D. Keke for 2nd Respondent
Application for leave to appeal out of time against determination of the Nauru Lands Committee in an estate forming part of the estate of the late Egoraia of Nibok District published in the Government Gazette No. 37 of 1961.
The parties acknowledged that I am to consider the application on the written material before the Court and without hearing oral argument.
The application is an attempt, frankly admitted, to avoid the result of the decision in Civil Action No 20/2003. In that action the present 2nd Respondent Margaret Depaune (with others) successfully sued the present Applicant (and others) for trespass.
In his characteristically careful and well reasoned judgment Connel C.J. said:-
The documentation revealed clearly from 1929 to the present that the Anibubu land comprising portions 23, 27 and 28 were owned by Ebenwonon, the mother of Margaret D. Further, before the determinations made in G.N. No 182 of 1962, family meetings were held, determinations were made by the Nauru Lands Committee clearly establishing the ownership of the children of Ebenwonon as stated in the Gazette No 48 of 1931 following Ebenwonons death, and in conformity with the BPC leases. There was no appeal on the 1961 determination and the land has remained in the hands of children of Ebenwonon since 1929 and all rents have been paid to them. Mention was made of two leases signed by Hiram on behalf of his wife Ebenwonon in 1929. This signature was specifically witnessed by the Administrator thereby giving his authority for the signature at the time of acute frailty of Ebenwonon. The leases were made in conformity with the 1921 lands Ordinance and were valid.
Connell C.J. went on remark:-
Whilst the present case was not a land appeal but a case brought in trespass by the plaintiff, it was fought by the defendants as if it was to test validity of land ownership. One can only say that the defendants failed utterly in this Endeavour.
The Chief Justice made an order declaring, inter alia:-
that the defendants are trespassers and unlawfully occupying the land known as Anibubu portion 27 in Denigomodu and the building, known as MQ31, upon the aforesaid land.
The present application is for leave to bring a land appeal out of time. Based on the same facts. Connel C.J. issued Practice Note No. 1 of 2006 an 18th January.
The first paragraph:-
Where a land appeal that is out of time is lodged with the Supreme Court and the Court is called upon to make use of its inherent power which has statutory recognition under Section 72 of the Civil Procedure Act 1972, the grounds of such appeal are limited to allegation of gross irregularity of procedure in determination of the Nauru Lands Committee, proven fraud, and failure of natural justice. It should be noted that error in application or interpretation of existing law will not be a ground for the acceptance of an appeal out of time.
The Practice Note reflects the decision of the Court of Appeal in Taylor and another v Lawrence and another ( 2 All ER 353).
When one compares the facts found by Connell C.J.- findings which I accept without further enquiry against the requirements of paragraph 1 of the Practice Note No. 1/2006, following Taylor & Lawrence, the application must fail. There have been shown in the application no gross irregularity of procedure, no proven fraud, no failure of natural justice.
That alone is sufficient to refuse the application. There is also an equally compelling reason. This application is for leave to appeal against a decision which the Nauru Lands Committee made about 45 years ago: a decision which has unchallenged until now. The principle of certainty of title demands that it should continue to stand. If Courts were to interfere except in the rarest cases contemplated in Practice Note No. 1/2006 the system of land tenure would be in chaos: no one would know when his or her title was to be challenged. To allow that to happen is unthinkable.
The application for leave to appeal out of time is refused.
THE HON. ROBIN MILLHOUSE QC.
Haksız Fiil Dava Örnekleri
Typical Tort Cases
Case 1: (Balton v Stone) A cricket ball batted by Batsman B hits a pedestrian (P) passing by the cricketground. P is hurt. The ground was surrounded by a fence whose top, due to the slope of the ground, was 17 feet above the level of the pitch. The fence was 78 yards from the striker, and the pedestrian was 100 yards away when he was hit. During the last 28 years only 6 balls had been hit out of the ground so that the club (C) believed that it was not negligent.
Addtion by the Author: Assumed B is a member of the club C. Further assumed P had suffered an open wound at his head, the doctor took 50 Pounds for stiching, Ps blood dripped on his shirt, washing for 10 Pounds was needed. P also claims for money for pain.
What is P able to claim from C or from B?
o. Preface: No contractual, no contract similar and no delivery claims visible. So only tort is applicable
I. Liability of B
P could claim 60 Pounds damages for washing and surgery from B out of §823 I BGB
1. Liability causing facts of §823
- A person who (the person has to be responsible after §827 or §828). B was the one who stroke the ball. He was casual.
- Injures anothers
. Health, P is bleeding (+)
. Property; protected against violation of a things substance: Ps shirt is dirty (+)
- Not written but logically needed: by an attributable behavior (casual (+) and adequate (foreseeable) action: hitting the ball (+) but the question is if he could foresee the result. We assume that he could not, as we assume it was his first game on this ground and the fence was not obviously too low.
2. As a result B is not liable as he could not foresee the result (ATTENTION: This can obviously interpreted in another way. Some courts might say that a player always can foresee, that his action could do harm to outsiders.) But this depends very much on the case, on the experience the player has, on his reliability etc. As we dont know much about this case, we dont assume here.
II. Liability of C
1. P could claim 60 Pounds for washing and surgery from C out of §823 I BGB
a. Liability causing facts of §823
A person who: C is juristic Person but its liability is only on behalf of an action of its representatives following §31. So if an organ of the club is responsible, C is responsible for its organs. Its to be assumed, that an organ of the club decided about the height of the fence. So C is a person after §823.
o Health, P is bleeding (+)
o Property; protected against violation of a things substance: Ps shirt is dirty (+)
Not written but logically needed: by an attributable behavior. (Bourhill v Young) action or omission) The organs of C decided about the heights of the fences. So their decision and their omission to heighten them was an attributable behavior.
The question again is if it was foreseeable.
The organs of C knew already about 5 events in the last 28 years where a ball passed the fences. So they were able to know that it is possible at a cricket game, that a ball can fly over the fence.
The fact, that it has not yet hurt anybody is not an excuse, as this way just by chance. The organ must have seen, that pedestrians are passing by the stadium. The incident was foreseeable. So not heightening the fence after several experiences of a ball flying over the fence was an causal and adequate omission.
Unlawfully: There has to be a duty care.
The omission was only unlawful if C had the duty to prevent balls flying over the fence. The question is now, if the fact that it only happens very seldom, is enough not to insist on a higher duty of care.
We learned already that anybody who opens or maintains a certain source of danger has to care for injury not to come true by necessary and reasonable means. As in this case it was foreseeable that a ball could fly over and as it was after common experience of life not unlikely that a person could be hit, I would prefer to demand higher duties of care as Cs organs regarded as sufficient. Batting a ball by players on the playground is a source of danger maintained by the club. Cricket balls are heavy and hard. People hit unforeseen by a cricket ball are likely to be injured. So there should be good care for this not to happen. It would quite easily be possible to higher the fence.
Fault: willfully or negligently (exceptions see §827, 828 mentioned above)
o Willfully: Knowledge and will to cause a success and knowledge about unlawfulness (e.g. existing duty of care) is needed: Surely it was not intended by the club organs keeping the fence low to injure people.
o Negligently: Taking no required care; However they didnt take the required care demanded above. So this was negligent
b. Liability determining facts:
Damages caused by the unlawful omission were the doctors costs as well as the costs for cleaning the shirt. This was 60 Pounds altogether.
As a result P can claim 60 Pounds out of §823 I from C.
2. Furthermore P could claim money for pain from C after §847
§847 demands that a immaterial damage has been caused by a tortuous action. This is the case here. Pain is immaterial and it was caused by the negligence of C.
The amount of money to pay him as money for pain is decided by the court.
Famous actress Birgit Bidet (BB) is having a sunbath in her well protected garden. Next day the SUN publishes a photograph of her made from a helicopter topless on a deckchair in her garden. Headline Bidet has hanging tits!
What can she do if shes not having hanging breasts? What if shes having? What if the Wonderbra factory publishes the picture for an advert?
B could compel the sun to refrain from publishing her photo again, she could claim a counter-declaration and she could claim immaterial damages after §823 I
1. Liablity causing facts
- A person; the SUN publishers
- Injures anothers rights
The privacy right is an objective right. Art 2 and Art 1 of the Grundgesetz provide a comprehensive protection of ones personality. Personality is protected in the whole range of ones existence. The right of ones picture is one part of this right.
However the courts have decided to reduce this right of ones picture when a famous person is being photographed. But those photos have to be in a context to certain events and to current interests. That is the case if B would be going to a film festival and would be photographed at this event. So those photos which are not in a current context injure the right of personality. If somebodys sitting in his private garden and this garden is protected against views from outside, this person has the right to have his private personal sphere respected.
So the personality right of BB is hurt by the picture. It is also hurt by the headline. The personality right also contains personal honour. By attesting her hanging tits her honour is being badly hurt. No matter if this is right or wrong. Even the wording is bad enough.
- Taking a photograph from a helicopter and writing the headline is an adequate behaviour.
- This behaviour is unlawful, as there is no justification by common interest to interfere in the private or better intimate sphere of another person.
- The photograph was taken, the headline was written by intention, so there also was fault.
2. Liability determining facts
- As a consequence BB can claim at least the omission of publishing the photo again.
- Furthermore she could claim a counter declaration of the headline. Therefore it is not needed that the headline is true or false. The law follows the principle audiatur et altera pars, so somebody can demand a counter statement if his personality right is injured no matter if the fact injuring him true or false. So it doesnt matter if her breasts are hanging or not.
- At last she can claim a compensation of the immaterial damages which came up by the intensive violation of her personal honour by the unfriendly wording.
- If finally the Wonderbra factory would publish the photo for advertising she could also claim damages for not being payed by them, as they are unlawfully making money with her name.
In law, a company refers to a legal entity formed which has a separate legal identity from its members, and is ordinarily incorporated to undertake commercial business. Although some jurisdictions refer to unincorporated entities as companies, in most jurisdictions the term refers only to incorporated entities. It has been judicially remarked that the word company has no strictly legal meaning, but is taken to mean a specific form of entity created under the laws of the relevant jurisdiction. Because of the limited liability of the members of the company for the companys debts and the separate personality and tax treatment of the company, it has become the most popular form of business vehicle in most countries in the world.
Lacking a concise definition of their own, companies are often defined by reference to what they are not.
Companies are separate and distinct from:
Trusts, although conceptually trustees managing a trust fund for the benefit of beneficiaries are in many ways to similar to the directors managing the companys assets for the benefit of the shareholders.
Unincorporated associations of persons, such as clubs, cooperatives and collectives.
Modern companies are generally formed for one of three purposes:
non-profit companies, formed for social, charitable or quasi-charitable purposes to provide the sponsors with the benefit of limited liability and to form an administratively convenient mechanisms for the administration of the organization.
small business companies, usually formed by either sole traders or partners to take advantage of limited liability and (sometimes) as a means of tax avoidance, whilst still retaining overall control in the hands of the founders.
public investment companies, formed to enable members of the public to invest in a business or enterprise without actually becoming involved in the running of it (which is left to the board of directors).
However, companies have a number of other uses. They are not normally subject to rules against mortmain or perpetuity, and may have perpetual existence. Companies are often used in tax structuring. Companies, being commercial entities, are often easier to utilize in financing arrangements than partnerships and individuals. Companies have an inherit flexibility which can let them grow; there is no legal reason why a company initially formed by a sole proprietor cannot eventually grow to be a publicly listed company, but a partnership will generally always be limited as to the maximum number of partners.
Although some forms of the companies are thought to have existed during Ancient Rome and Ancient Greece, the closest recognizable ancestors of the modern company did not appear until the second millennium. The first recognizable commercial associations were medieval guilds, where guild members agreed to abide by guild rules, but did not participate in ventures for common profit. The earliest forms of joint commercial enterprise under the lex mercatoria were in fact partnerships.
But with the expansion of international trade, Royal charters were increasingly granted in Europe (notably in England and Holland) to merchant adventurers. The Royal charters usually conferred special privileges on the trading company (including, usually, some form of monopoly). Originally, traders in these entities traded stock on their own account, but later the members came to operate on joint account and with joint stock, and the new Joint stock company was born.
Early companies were purely economic ventures; it was only belatedly realized that an incidental benefit of holding stock was that the companys stock could not be seized for the debts of any individual member.
The development of company law in Europe was hampered by two notorious bubbles (the South Sea Bubble in England and the Tulip Bulb Bubble in Holland) in the 17th century, which set the development of companies in the two leading jurisdictions back by over a century in popular estimation.
But companies, almost inevitably, returned to the forefront of commerce, although in England to circumvent the Bubble Act 1720 investors had reverted to trading the stock of unincorporated associations, until it was repealed in 1825. However, the cumbersome process of obtaining Royal charters was simply insufficient to keep up with demand. In England there was a lively trade in the charters of defunct companies. However, prevarication amongst legislation meant that in England it was not until the Joint Stock Companies Act 1844 that the first equivalent of modern companies, formed by registration, appeared. That legislation shortly preceded the railway boom, and form there the numbers of companies formed soared.
The last significant development in the history of companies was the decision of the House of Lords in Salomon v. Salomon & Co. where the House of Lords confirmed the separate legal personality of the company, and that the liabilities of the company were separate and distinct from those of its owners.
In a December 2006 article, The Economist identified the development of the joint stock company as one of the key reasons why Western commerce moved ahead of its rivals in the Middle East in post-renaissance era.
Further Information: Corporation: Origins
There are various types of company that can be formed in different jurisdictions, but the most common forms of company are:
A company limited by shares. The most common form of company used for business ventures.
A company limited by guarantee. Commonly used where companies are formed for non-commercial purposes, such as clubs or charities. The members guarantee the payment of certain (usually nominal) amounts if the company goes into insolvent liquidation, but otherwise they have no economic rights in relation to the company.
A company limited by guarantee with a share capital. A hybrid entity, usually used where the company is formed for non-commercial purposes, but the activities of the company are partly funded by investors who expect a return.
An unlimited liability company. A company where the liability of members for the debts of the company are unlimited. Today these are only seen in rare and unusual circumstances.
The foregoing types of companies are generally formed by registration under applicable companies legislation. Less common seen types of companies are:
Charter Corporations. Prior to the passing of modern companies legislation, these were the only types of companies. Now they are relatively rare, except for very old companies that still survive (of which there are still many, particularly many British Banks), or modern societies that fulfill a quasi regulatory function (for example, the Bank of England is a corporation formed by a modern charter).
Statutory companies. Relatively rare today, certain companies have been formed by a private statue passed in relevant jurisdiction.
Companies formed by letters patent. Most corporations by letters patent are corporations sole and not companies as the term is commonly understood today.
In legal parlance, the owners of a company are normally referred to as the members. In a company limited by shares, this will be the shareholders. In a company limited by guarantee, this will be guarantors.
Some offshore jurisdictions have created special forms of offshore company in a bid to attract business for their jurisdictions. Examples include segregated portfolio companies and restricted purpose companies.
There are however, many, many sub-categories of types of company which can be formed in various jurisdictions in the world.
Companies are also sometimes distinguished for legal and regulatory purposes between public companies and private companies. Public companies are companies whose shares can be publicly traded, often (although not always) on a regulated stock exchange. Private companies do not have publicly traded shares, and often contain restrictions on transfers of shares. In some jurisdictions, private companies have maximum numbers of shareholders.
Further Information: Types of companies.
In almost every jurisdiction in the world, a company must have a corporate constitution, which defines the existence of the company and regulates the structure and control of the company.
By convention, most common law jurisdictions divide the corporate constitution into two separate documents:
The Memorandum of Association (in some countries referred to as Articles in Incorporation) is the primary document, and will generally regulate the companys activities with the outside world, such as the companys objects and powers and specify the authorized share capital of the company.
The Articles of Association (in some countries referred to as the by-laws) is the secondary document, and will generally regulate the companys internal affairs and management, such as procedures for board meetings, dividend entitlements etc.
In many countries, only the primary document is filed, and the secondary document remains private. In other countries, both documents are filed. Some countries provide statutory forms of basic corporate constitution which a company may adopt (for example, Table A in the United Kingdom).
In civil law jurisdictions, the companys constitution is normally consolidated into a single document, often called the charter.
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