公司法和商法（双语）案例Corporate and Business Law Cases Case SummariesOffer and AcceptancePharmaceutical Society of Great Britain v Boots Cash ChemistsHeld that the display of drugs on open shelves was merely an inducement to the buyer to make anoffer to buy, not an offer to sell capable of acceptance.Hyde v WrenchAn offer to sell at £1,000 was met with a counter offer at £950. This was rejected. The subsequentacceptance at the original price was legally ineffective as that offer had been terminated by thecounter offer.Neale v MerrettAn offer to sell land at £280 was accepted at the full price, enclosing £80 and an undertaking to pay the balance by instalment. This conditional acceptance of the offer had terminated it so no legalcontract existed.Stevenson v MacleanM offered to sell iron ‘at £2.00 net cash per ton till Monday’.Monday: S telegraphed to ask if M would accept £2.00 for delivery over 2 months or, if not, longestlimit M would give.10.01: M receives telegram.1.34pm: S accepts by telegram.M had sold to someone else. Advised S by telegram sent at 1.25pm which arrived at 1.46pm.Court held S’s first telegram was a request for information not a counter offer which did not terminate the original offer. A valid contract existed.Byrne v Van Tienhoven1 October offer letter posted in Cardiff8 October revocation letter posted in Cardiff11 October offer letter received in New York. Telegram of acceptance sent.15 October letter confirming acceptance posted in New York20 October revocation letter received in New YorkHeld: the letter of revocation could not take effect until actually communicated on 20 October. There was a binding contract.Carlill v Carbolic Smoke Ball Co.The Carbolic Smoke Ball Co advertised their product during an influenza epidemic as being able to stave off the flu. If anybody used their smoke ball in accordance with the printed instructions and caught the flu they would pay the individual £100. To show their good faith they deposited a sum of money with their bank.Mrs. Carlill caught flu after having use the product very carefully and claimed her £100. The company refuse to pay, saying that their advert was a invitation to treat only. The Court held that this was in fact an offer to the whole world, the deposit of money showed intention to be legally bound and consideration was provided by the act of the customer using the product as instructed.Household Fire Insurance v GrantLetter applying for shares sent via an agent from Glamorgan to London. A deposit had been paid to the company’s bankers.Company recorded him in share register. Post office lost the company’s letter of acceptance. Company failed and full payment for the shares was required. Court held G was required to pay in full, as a valid contract had been formed.Entores Ltd v Miles Far East CorporationE Ltd, in London, send offer to MFE, in Amsterdam, by teleprinter. Acceptance sent by MFE in Amsterdam by teleprinter to E Ltd in London.MFE later in breach and question arose as to where contract was made and where litigation should begin.Held that contract was made where acceptance actually communicated to E Ltd, therefore in London.Holwell Securities v HughesH gave HS an option to buy premises to be exercised 'by notice in writing'. HS sent a letter which was not received by H.Held that there was no contract as 'notice' meant the letter must actually be received.Adams v LindsellL Made an offer requiring acceptance in 'course of post'A accepted the offer 'in course of post' on 5/9L received the reply on 9/9 but had already sold the goodsIt was held that the acceptance was effective when posted.Dickinson v Dodds10/6 defendant offered property for sale– offer to be open for 2 days11/6 property sold to another buyerreliable 3rd party informed plaintiff of the saleplaintiff then accepted the offerIt was held that the defendant was free to revoke offer and had done so. Claimant could not therefore accept the offer.Fisher v BellFlick knife exhibited in shop window. Prosecuted for offering an offensive weapon for sale.It was help that display of an item in a shop window is an invitation to treat.Partridge v CrittendenP placed ad regarding rare birds. RSPCA brought a court action for offering birds for sale.It was held that the ad was an invitation to treat and not an offer for sale.Ramsgate Victoria Hotel v MontefioreM applied to buy share in June. Nov Co accepted his offer and requested balance. M said offer had expired.It was held that the offer was for a reasonable time only. Five months was much more than reasonable and so the offer had lapsed.Routledge v GrantG offered to buy horse requiring acceptance in 6 weeks. Within the 6 weeks he withdrew his offer.It was held G could revoke his offer within the 6-week period as it was prior to acceptance. There was no consideration given by R to keep the offer open.Yates Building Co v PulleynOffer called for acceptance by registered delivery letter. Offeree sent ordinary letter which arrived without delay.It was held that no disadvantage had been suffered and as such the offer was valid.Case SummariesConsiderationRe McArdleDecorating was done in the family home by a daughter in law and on the subsequent death of themother-in-law the remainder of the family promised to pay the cost of the decorating to the daughter in law when the estate was settled. This promise was not enforceable as the consideration to “buy”the promise was provided in the past.Chappell v NestleChocolate bar wrappers provided in exchange for a record offered by Nestle were part of theconsideration despite having little or no commercial value. It was not cash alone which entitled you to the record.Stilk v MyrickTwo deserters on a sea voyage led to a promise from the captain to the crew to divide the deserters’ wages between them if they sailed the ship home. It was held that the promise to pay extra wasunenforceable as their contract already obliged them to meet normal emergencies and noconsideration was provided.Hartley v PonsonbyMore money was promised to sailors if they sailed the ship home when the level of desertersrendered the ship unseaworthy. This promise was enforceable as the sailors provided consideration by going beyond their duty.Williams v Roffey Bros and Nicholls (Contractors) LtdRoffey Bros. were main contractors in the refurbishment of a block of flats. In the contract between Roffey Bros. and the employer there was a penalty clause which provided that Roffey Bros wouldhave to pay damages if the work was not completed on time.Roffey Bros. had sub-contracted the carpentry work to Williams and became concerned that Williams would not be able to finish on time. Roffey Bros. therefore offered Williams an extra £10,300 to finish the work on time. They then refused to pay the money.It was held where that there was no evidence of fraud or economic duress and there was a benefit to both parties, a promise backed up by consideration may be enforceable. Hence Roffey Bros. were ordered to pay the £10,300.D & C Builders v ReesBuilders reluctantly accepted part payment of a debt as they had financial difficultiesLater sued for the balance.It was held they were entitled to sue as estoppel only applies to promises freely given. Dunlop v SelfridgeD imposed a resale price on customersSold tyres to dealerDealer sold tyres on to Selfridge with same price restrictionS sold tyres at below priceD sued SIt was held that D could not recover damages under a contract to which it was not privy.High Trees House v Central London Property TrustDuring war, CLPT made a promise not to increase the rent they charged HTHT as a result reduced the rent they charged their tenantsAfter the war CLPT claimed the back rent from HTIt was held that even though HT had given no consideration to CLPT for the promise, CLPT were ESTOPPED from going back on the promise. They had entered into the promise freely with the intention that HT relied on it and HT had done so.Lampleigh v BraithwaitB killed a man and later asked L to obtain a Royal pardonL obtained the pardon at personal expenseB then promised to payB then failed to pay and L suedIt was held that B's request implied a promise to pay and therefore this later actual promise merely fixed the amount.Re SelectamoveCo agreed with tax collector to pay tax liability by instalmentsCo made some payments but Inland Revenue then demanded payment in full or they would wind up the companyS argued they had provided consideration for the agreement by stopping the IR from having to go to courtIt was held there was an existing obligation to pay and as such there had been no consideration to support the instalments.CASE SUMMARIESLegal intentionRose and Frank v CromptonEven in a commercial contract legal intention can be expressly excluded by the use of an'Honourable Pledge Clause'.Balfour v BalfourAn informal agreement between husband and wide (who had not broken up) was held not to belegally binding.Merritt v MerrittA husband and wife separated. The husband agreed to pay the wife £40 per month out of which sheagreed to keep up the mortgage payments. The husband signed a note to this effect and in addition agreed to transfer the house to his wife once the mortgage had been paid. On the discharge of the mortgage the husband refused to effect a transfer.The court held that all the circumstances of the case gave rise to an inference of legal intention and hence the agreement was legally binding.Simpkins v PaysAgreement to share competition winnings can be enforceable if there is 'mutuality in thearrangements between the parties'.Edwards v SkywaysIn commercial arrangements there is a presumption of intention to create legal relations which will have to be discharged by the person seeking to avoid liability.CASE SUMMARIESTermsPoussard v SpiersFailure to appear at performances when engaged as the lead role in an opera constituted a breach of condition entitling the opera company to repudiate the contract and potentially to claim damages.Bettini v GyeFailure to appear at preliminary rehearsals only constituted a breach of warranty. Opera companyentitled to damages but not to repudiate the contract.HongKong Fir Shipping Company v Kawasaki Kisen KaishaThe defendants chartered a ship from the claimants. A term in the contract stated that the claimants would provide a ship which was 'in every way fitted for ordinary cargo service'. The Courts said that this term was not capable of being construed as either a condition or a warranty from mere reading and so the Court would have to look at the actual effect of the breach. If the effect was to deprive the injured party of most of the benefit of the contract it would be a condition if not a warranty. The defect that occurred rendered the ship unavailable for 17 months out of a 24 month contract. On the facts the Court held that the term was a warranty.The MoorcockImplied in a contract for anchorage of a ship that the place of anchorage should be safe.Office Angel Ltd v Rainer –ThomasIf any element of a restraint of trade clause is unreasonable the whole clause will fail. The Court will not rewrite an excessive restraint by limiting it to that part which might be reasonable.Home Counties Dairies v SkiltonIf the Court concludes that the parties did not intend the clause to operate as widely as it does it may be possible to save the clause by striking out the words that are too wide. This is known as the 'blue pencil rule' of deletion.CASE SUMMARIESExclusion ClausesChapleton v Barry UDCC hired a deckchair paid and received a ticketDeckchair collapsed and C was injuredNotice disclaiming liability was on the back of the ticketThe court held that the council was liable. The notice advertising deckchairs made no mention of the exclusion clause and it was not reasonable for them to communicate the exclusions on areceipt.Curtis v Chemical Cleaning CoCurtis took wedding dress to be cleanedWas asked to sign some conditions and when asked what they covered, was told that they excluded liability for damage to beads and sequins.The clause actually disclaimed liability for any damage to the dressWhen the dress returned it was badly stained.To Co could not rely on their exclusion clause as they had misled Curtis as to it effect.Hollier v Ramber MotorsH had his care repaired several times over a 3 year period at a garageEach time, except for the last, H had signed a form containing an exclusion clauseOn the last occasion the car had been damaged by fire.The garage was liable. H had not signed a form and there was no evidence that H had agreed to the term through his dealings with the garage.L'Estrange v GraucobG purchased a slot machine from LContract excluded normal rights under the sale of goods act at the timeL signed the contract.It was held conditions were binding on L as she has signed them.Olley v Marlborough CourtO paid for a hotel room in advance in receptionA notice disclaiming liability for loss of valuables was in the bedroomValuable furs were stolen from O's roomIt was held the contract had been made when the room was paid for and the disclaimer came after.As such it was too late and the hotel could not place any reliance on it.Photo Productions v Securicor TransportS were engaged to guard P's premisesContract contained an exclusion clause for dame caused by S's employeesS's employee deliberately started a fire which burnt the whole factory downP argued that S could not rely on the clause as they had failed to perform their contracts to guard the premises.It was held that total failure to perform a contract will not stop a party from relying on an exclusion clause – providing the clause is wide enough to cover the acts in question. In this case it was felt to be so.St Albans City and District Council v International Computers LtdSt A employed ICL to assess the population of the city to base community charge Clause in contract limited liability to £100K – although ICL has insurance cover of £50m. The database created by ICL was however inaccurate and St A lost £1.3m in revenue.The clause was deemed unreasonable given the insurance held by ICL.CASE SUMMARIESDischarge and RemediesWhite and Carter (Councils) Ltd v McGregorContract entered into to advertise M’s garage on litter bins for 3 years.Contract repudiated by M. W & C refused to cancel and carried contract out. Court held W & C was entitled to recover the contract price as were not obliged to accept the repudiation.Cutter v PowellP employed C as a sailor on a voyageContract was for the complete voyageC died at sea part way through the voyageC's widow sued for part paymentIt was held C had not completed the contract and so C's widow was not entitled to sue.Hadley v BaxendaleH, the owners of a flour mill, contracted with B who were carriers to deliver to a crash shaft toGreenwich where it was to be used as a template for a new one. It was delivered late, so that the new one was also delayed.H claimed loss of profits during the period of the delay and it was held that this loss was notrecoverable. Damages would only compensate for losses which may fairly and reasonably beconsidered as arising naturally from the breach or might reasonably be expected to be in thecontemplation of both parties at the time they made the contract as the probable result of breach.Victoria Laundry v Newman IndustriesThe defendants contracted to sell a boiler to the plaintiffs ‘for immediate use’. The defendants were late in delivering the boiler. The plaintiffs claimed:(1) Normal loss of £16 per week.(2) Loss of a particularly lucrative contract worth £262 that the plaintiff would have entered into ifthe boiler has been delivered on time.The court held that the profits of £16 per week were recoverable as they arose naturally.The profit on the lucrative contract could not be recovered as it was not in the reasonablecontemplation of the defendants when the contract was made.Dunlop v New GarageA contract for the sale of tyres imposed a minimum resale price. The contract included a fixedpayment in the event of breach, at £5 per tyre. NG sold at less than the minimum resale price and,when D sought to recover the fixed sum, argued it was a penalty. It was held that this amount was a genuine attempt at pre-estimate of loss and would be upheld.Jarvis v Swan ToursDamages were awarded both for the cost of a holiday and disappointment following a discrepancy between the holiday and the brochure description. Subsequent case law appears to confine this element of damages to holiday cases only.Warner Bros v NelsonNelson was Bette DavisN agreed not to work for any other studio – only WBWorked for a British film producer in the UKCourt imposed an injunction on N from working for the British producer.Ruxley Electronics v ForsythCourts stated that where the cost of restitution is disproportionate damages for lost enjoyment may be substituted.Payzu v SaundersParties had entered into a contract to supply goods to be paid in instalments.P failed to pay for the first instalment consequently S refused to make any further deliveries unless P paid in cash in advance of the delivery.P refused to accept delivery on S’s terms.Court held S had no right to repudiate the contract, but also that P should have mitigated their loss by paying cash in advance. Damages were limited to the amount of loss if P had paid in advance.CASE SUMMARIESAgency and partnershipsWatteau FenwickThe owners of a hotel expressly forbade the manager of the hotel to buy certain articles includingcigars. In breach of this restriction the manager bought cigars for the hotel from a third party. Thethird party later sued the hotel owners for payment. It was held that the purchase of cigars was in the usual activity of a hotel manager. Hence owners were liable.CASE SUMMARIESCompany formationSalomon v Salomon and Co.S transferred his business as a sole trader into a company legally incorporated with the correctnumber of shareholders. Sale of assets to the company meant S was owed money by S and Co,which was secured by a debenture. On subsequent liquidation this took priority over unsecured trade creditors who argued it was invalid as the creditor – S – and the debtor – S and Co – were technically one and the same. It was held that this was incorrect. The company, being validly constituted, was a separate legal entity to S and the debt was upheld.Gilford Motor Co v HorneThe use of a limited company to act in contravention of personal contractual obligations will not be permitted by the court, who will lift the veil of incorporation to expose the true nature of the company.It was held it was set up as a facade or sham and was wound up by the court.Ebrahimi v Westborne GalleriesE and friend N set up a gallery in Holland Park. Initially it was a partnership and then N suggestedsetting up a Ltd Co. to attain limited liability. Shares allocated on a 50/50 basis with equalmanagement rights.N then introduced his son to the company, effectively reducing E’s shares to 49%. N and his son passed an ordinary resolution sacking E as a director and then paid bonuses to the directors anddeclared nil dividend. E applied to court for just and equitable winding up. It was held that thecompany was in legal effect a partnership based on a relationship of mutual trust and confidencewhich had clearly broken down. The court wound the company up.DHN Food Distributors v Tower Hamlets LBCVeil was lifted to recognise that subsidiaries of a company which were in occupation of premiseswhich were the subject of a CPO were one and the same as the holding company. As a result themoney could be paid to the holding company because the group of co mpanies was viewed as ‘one economic entity’.This case was subsequently held to be applicable only in specific circumstances. The general rule is the one followed in Adams v Cape Industries below.Adams v Cape IndustriesCape, an English company, was head of a group including wholly owned subsidiaries.In the States plaintiffs had been awarded damages for asbestosis against a marketing companyNAAC, a subsidiary of Cape.Court of Appeal held that the judgement could not be enforced against Cape, as the subsidiary was to be treated as a “separate legal entity with all the rights and liabilities which would normally attach to separate legal entities...”R v OLL LtdFollowing the Lyme Bay canoeing disaster liability for corporate manslaughter fell on the shoulders of the ’controlling mind’ of the company. Its sole director was therefore identified as a culpable party and both fined and imprisoned accordingly.Jubilee Cotton Mills v LewisThe date on a company's certificate of incorporation is conclusive evidence of the company's existence.Phonogram v LaneThe promoter was liable to repay moneys paid over when the contract was made.CASE SUMMARIESArticlesHickman v Kent or Romney Marsh Sheepbreeders AssociationH is a shareholder in the S. Assoc. All disputes were to be referred to arbitration rather than thecourts. A dispute arises with the S. Assoc. and H sues. It was held that the dispute must be firstreferred to arbitration. The clause in the articles was binding on H on a contractual basis andtherefore enforceable by the company.Pender v LushingtonArticles stated maximum votes to be attached to shareholdings. P transferred shares to nomineecompanies in order to increase his votes. Chairman of company at GM disallowed these votes. It was held that this was improper. P could enforce this provision against the company.Borland’s Trustee v Steel Bros LtdA provision in the articles requiring members to take a transfer of existing members’ shares wasenforceable against them by a member’s trustee in bankrupt cy.Eley v Positive Life CoE was shareholder and solicitor to PL Co. Drafted the articles and in them appointed himself solicitorfor life. When sacked he tried to enforce this provision against the company. It was held that theprovision related to third party rights and as such was not enforceable.Bushell v FaithProvisions in the articles allowing a multiplication of voting rights on certain resolutions areenforceable. They are known as weighted voting rights.Greenhalgh v Arderne CinemasAn alteration of the articles to remove pre-emption rights, whilst depriving G of his individualshareholder rights, was held to be for the benefit of the company as a whole.Southern Foundries v ShirlawRemoval of a director may amount to a breach of contract and compensation will be payable.Dafen v LlanellyA general power inserted into the Articles to compel a shareholder to sell his shares will not be in thebest interests of the company.Sidebottom v KershawArticles were altered to enable the directors to purchase at a fair price the shareholding of anymember who competed with the company in its business. The Court held that changes to the articlesto allow expulsion are permissible provided that they are bona fide in the interests of the company as a whole.Expulsion on the grounds that a shareholder is competing would be bona fide.Shuttleworth v CoxExpulsion of a director appointed by the articles who failed to account for funds was held to be valid.CASE SUMMARIESDirectorsSouthern Foundries v ShirlawA removal of a director by altering the articles was valid, however, this meant that the company wasthen in breach of that director’s service contract and was liable to pay damages to that director forbreach.Re City Equitable Fire Insurance Co.Co lost £1,200,000 mainly as a result of the fraud of the chairman of directors, described as a ‘daring and unprincipled scoundrel’. An action to make the other directors also liable on the grounds ofnegligence failed on basis that:1 director need show no greater degree of skill than may reasonably be expected from a personof his knowledge and experience;2 directors were not bound to give continuous attention to the company; and3 were justified in delegating these duties.Dorchester Finance Co v StebbingMoney lending company had 3 directors S and Parsons and Hamilton. S worked full time, P and H paid little attention to the company and came to the premises rarely. H and P were in the habit ofsigning blank cheques at S’s request. No board meetings were held and S used the cheques to make illegal loans. All these were held liable to make good the company’s losses on grounds (amongstothers) that H and P were experienced in accountancy and signing blank cheques was negligent.Re Halt GaragesMr and Mrs Charlesworth were the only directors and shareholders in the company. After two years of the company being unprofitable it went into insolvent liquidation. Mrs C had given up work three years prior to liquidation, but continued to be paid by the company. Mr C worked throughout and was also paid.It was held that Mr C was entitled to remuneration, even after the company ceased to be profitable.However, Mrs C was ordered to repay sums which the judge held to be not a ‘genuine award ofremuneration’, but a disguised gift out of capital.Cook v DeeksDirectors were also controlling shareholders who negotiated contract in name of company. Took the contract in their name and passed resolution in GM declaring the company had no interest in thecontract. Minority shareholder sued them as trustees for the company for the benefit of the company.It was held that the contract belonged in equity to the company and directors could not bind the company to defraud itself.IDC v CooleyC was MD of IDC who provided consultancy to Gas Boards. A Gas Board declined to give a contract to IDC but C realised he could obtain it personally. Resigned from IDC faking ill health and then obtained the contract himself. It was held that C was accountable to IDC for the profit.Regal (Hastings) Ltd v GulliverOpportunity arose for the company to acquire two more cinemas through a subsidiary. Company could not proceed alone because it had insufficient funds. The directors subscribed for new shares in the subsidiary and the shares in the two companies were sold on at a profit. The new controlling shareholder sued the directors to recover the profit. It was held that, whilst the directors had no ulterior motive, they were still liable to account for the profit made.Peso Silver Mines v CropperA Canadian company voting through its Board of Directors rejected an opportunity to take a prospecting claim. A syndicate comprising some of the directors took the claim themselves. It was held that they were not liable to account for any profit to the company, which had rejected the opportunity bona fide.Guiness plc v SaundersA committee comprised of Saunders, Ward and Roux approved a fee of £5.2m to be paid to W. It was held that the committee did not have power to approve remuneration to one of its own members and the money had to be repaid.Howard Smith v Ampol PetroleumDirectors issued new shares to person seeking to launch a takeover bid to help it succeed. Even though the directors honestly thought that the takeover was in the best interests of the company it was held to be unconstitutional to issue shares for this purpose.Freeman v LockyerA managing director of a company has implied authority to enter into commercial contracts on behalf of the company.Panorama v Fidelis Furnishing Fabrics LimitedA company secretary has implied authority to enter into administrative contracts on behalf of the company.。
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