Hard2 marksMultiple Choice
The formation and constitution of business organisationsSection BSyllabus DCorporate and Business Law

ACCA · Question 54 · The formation and constitution of business organisations

Scenario: 'Urban Canopy Initiatives', a community group, wants to form a corporate entity to buy land for rooftop forests. They want limited liability to protect their members, but they do not want to issue shares, and any surplus income will be reinvested into the community rather than distributed as profit. Before incorporation, founder Elena signs a contract for a crane in the name of 'Urban Canopy Initiatives Ltd'.

Question: Once the company is incorporated, which TWO of the following methods can be used to legally transfer the liability for the crane contract from Elena to the new company?

Answer options:

A.

Ratification of the contract by the board of directors.

B.

Novation of the contract.

C.

Drafting a completely new contract between the company and the supplier.

D.

Passing an ordinary resolution at a general meeting.

How to approach this question

Recall that ratification is impossible for pre-incorporation contracts. The only ways are novation or a brand new contract.

Full Answer

Because a company cannot ratify a contract made before it was incorporated (as it lacked capacity at the time), the only ways to transfer liability are through 'novation' (a new three-way agreement cancelling the old contract and creating a new one) or simply drafting a completely new contract between the newly formed company and the supplier.

Common mistakes

Selecting 'Ratification'. While common in agency law, a company cannot ratify a pre-incorporation contract because the principal (the company) did not exist at the time the agent acted.

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