a directors' duties с company definition e partnership definition

b management roles   d company health f company formation

1 A company¹ is a business association which has the character of a legal person, distinct from its officers and shareholders. This is significant, as it allows the company to own property in its own name, continue perpetually despite changes in ownership, and insulate the owners against personal liability. However, in some instances, for example when the company is used to perpetrate fraud or acts ultra vires, the court may 'lift² the corporate veil' and subject the shareholders to personal liability.

2 By contrast, a partnership is a business association which, strictly speaking, is not considered to be a legal entity but, rather, merely an association of owners. However, in order to avoid impractical results, such as the partnership being precluded from owning property in its own name, certain rules of partnership law treat a partnership as if it were a legal entity. Nonetheless, partners are not insulated against personal liability, and the partnership may cease to exist upon a change in ownership, for example, when one of the partners dies.

3 A company is formed upon the issuance of a certificate of incorporation³ by the appropriate governmental authority. A certificate of incorporation is issued upon the filing of the constitutional documents of the company, together with statutory forms and the payment of a filing fee. The 'constitution' of a company consists of two documents. One, the memorandum of association4 states the objects of the company and the details of its authorised capital, otherwise known as the nominal capital. The second document, the articles of association5, contains provisions for the internal management of the company, for example, shareholders' annual general meetings6, or AGMs, and extraordinary general meetings7, the board of directors, corporate contracts and loans.

4 The management of a company is carried out by its officers, who include a director, manager and/or company secretary. A director is appointed to carry out and control the day-to-day affairs of the company. The structure, procedures and work of the board of directors, which as a body govern the company, are determined by the company's articles of association. A manager is delegated supervisory control of the affairs of the company. A manager's duties to the company are generally more burdensome than those of the employees, who basically owe a duty of confidentiality to the company. Every company must have a company secretary, who cannot also be the sole director of the company. This requirement is not applicable if there is more than one director. A company's auditors are appointed at general meetings. The auditors do not owe a duty to the company as a legal entity, but, rather, to the shareholders, to whom the auditor's report is addressed.

5 The duties owed by directors to a company can be classified into two groups. The first is a duty of care and the second is a fiduciary duty. The duty of care requires that the directors must exercise the care of an ordinarily prudent and diligent person under the relevant circumstances. The fiduciary duty stems from the position of trust and responsibility entrusted to directors. This duty has many aspects, but, broadly speaking, a director must act in the best interests of the company and not for any collateral purpose. However, the courts are generally reluctant to interfere, provided the relevant act or omission involves no fraud, illegality or conflict of interest.

6 Finally, a company's state of health is reflected in its accounts8, including its balance sheet and profit-and-loss account9. Healthy profits might lead to a bonus10 or capitalisation issue11 to the shareholders. On the other hand, continuous losses may result in insolvency and the company going into liquidation.

1 (US) corporation 4 (US) articles of incorporation or certificate of incorporation

2 (US) pierce 5 (US) bylaws

3 (US) generally no official certificate is issued; companies are 6 (US) annual meetings of the shareholders formed upon the filing of the articles/certificate of incorporation 7 (US) special meetings of the shareholders (see footnote 4)

8 (US) financial statements

9 (US) profit-and-loss statement or income statement

10 (US) stock dividend

11 (US) cash dividend