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87 Pages Complete Study Notes Year: Pre-2021

Corporate liability Factual scenario which corporate contracting issues will arise: 1) (3rd party) would seeking to enforce what s/he claims is a valid contract with the company 2) The contract came about (negotiated, drawn and signed) as consequence of interaction between the third party and one or more natural persons purporting to represent the company. 3) The company resists the claim asserting that the contract is invalid; that is to say, the contract is not binding on the company, because the company representative had no authority to bind the company under the contract (i.e the representative was not its authorised representative) Corporate Contracting Flowchart 1. Was the document properly executed? s 127 a. If no, see s 128(3), s 129(5)/(6) and IMR (s 129(1)) 2. Did the person acting for the company have authority? s 126 a. Express authority b. Implied authority i. Implied from position – see s 129(2) ii. Implied from past behaviour c. Ostensible authority – see s 129(3) 3. Were they acting within their authority? s 129(4) Separate legal entity: S124 states that a company has the legal capacity and powers of an individual and all the powers of a body corporate. This includes: [ the powers to sue and be sued in its own name/ to buy, own and sell property in its own name / enter into contracts and incur liabilities in its own name] How did the company enter into the contract? • Directly without company seal and it is signed by [ 2 directors of the company (s127(1)(a)) / a director and a company secretary of the company (s127(1)(b)) / for a proprietary company that has a sole director who is also the sole company secretary (s127(1)(c))] o If (Co.) executes a document in this way, people will be able to rely on the assumptions in subsection 129(5) for dealings in relation to the company. • Directly with a company seal (s127 (2)) and the fixing of the seal is witnessed by [ 2 directors of the company, (X) and (Y) (s127(2)(a)) / a director, (X) and a company secretary of the company, (Y) (s127(2)(b)) / (X) who is the sole director who is also the sole company secretary of (Co.) which is a proprietary company (127(2)(c)) ] o Important to note that the moment (Co.) executes a document in this way, people will be able to rely on the assumptions in s129(6) for dealings in relation to the company. AGENCY • Indirectly by agents. As per s126(1), (X) is agent of the company with actual authority(expressed or implied) to exercise (Co.)’s power to make, vary, ratify or discharge a contract on behalf of the company. The power may be exercised without using a common seal. o However, this does not affect the operation of a law that requires a particular procedure to be complied with in relation to the contract (s126(2)). • (X) had express authority to exercise the power to enter into the contract on behalf of (Co.) [The source of power is the constitution / Act


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