ACCA考试F4真题答案

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1、AnswersFundamentals Level Skills Module, Paper F4 (ENG)Corporate and Business Law (English) June 2012 Answers1 (a) The doctrine of binding precedent is one of the central principles of the English legal system. The doctrine refers to the factthat, within the hierarchical structure of the English cou

2、rts, a decision of a higher court will be binding on a court lower thanit in that hierarchy. In general terms, this means that when judges try cases, they will check to see if a similar situation hascome before a court previously. If the precedent was set by a court of equal or higher status to the

3、court deciding the newcase, then the judge in the present case should follow the rule of law established in the earlier case. Where the precedent isfrom a lower court in the hierarchy, the judge in the new case may not follow but will certainly consider it. The Hierarchy of the courtsThe Supreme Cou

4、rt (previously the House of Lords) stands at the summit of the English court structure and its decisions arebinding on all courts below it in the hierarchy. As regards its own previous decisions, up until 1966 the House of Lordsregarded itself as bound by its previous decisions. In a Practice Statem

5、ent (1966 3 All ER 77) of that year, however, LordGardiner indicated that the House of Lords would in future regard itself as free to depart from its previous decisions where itappeared right to do so. There have been a number of cases in which the House of Lords has overruled or amended its ownearl

6、ier decisions (e.g. Conway v Rimmer (1968); Herrington v British Rail Board (1972); Miliangos v George Frank (Textiles)Ltd (1976); R v Shivpuri (1986) but this is not a discretion that the Supreme Court will exercise lightly. It has to berecognised that in the wider context the Supreme Court is subj

7、ect to decisions of the European Court of Justice in terms ofEuropean Community law, and, with the implementation of the Human Rights Act 1998, the decisions of the European Courtof Justice in matters relating to human rights.In civil cases the Court of Appeal is generally bound by previous decision

8、s of the Supreme Court and its own previousdecisions. There are, however, a number of exceptions to this general rule. These exceptions arise where:(i) there is a conflict between two previous decisions of the Court of Appeal.(ii) a previous decision of the Court of Appeal has been overruled by the

9、Supreme Court. The Court of Appeal can ignore aprevious decision of its own which is inconsistent with European Community law or with a later decisionof the EuropeanCourt.(iii) the previous decision was given per incuriam , i.e. in ignorance of some authority that would have led to a differentconclu

10、sion ( Young v Bristol Aeroplane Co Ltd (1944).Courts in the criminal division, however, are not bound to follow their own previous decisions which they subsequentlyconsider to have been based on either a misunderstanding or a misapplication of the law.The Divisional Courts of the High Court are bou

11、nd by the doctrine ofstare decisis in the normal way andmust follow decisionsof the Supreme Court and the Court of Appeal. They are also normally bound by their own previous decisions, although incivil cases it may make use of the exceptions open to the Court of Appeal inYoung v Bristol AeroplaneCo

12、Ltd , and in criminalappeal cases the Queen s Bench Divisional Court may refuse to follow its own earlier decisions where it feels the earlierdecision to have been incorrectly made.The High Court is bound by the decisions of superior courts. Decisions by individual High Court Judges are binding on c

13、ourtsinferior in the hierarchy, but such decisions are not binding on other High Court Judges although they are of strong persuasiveauthority and tend to be followed in practice.Crown courts cannot create precedent and their decisions can never amount to more than persuasive authority. County courts

14、and magistrates courts do not create precedents.(b) Binding precedentIf a precedent was set by a court of equal or higher status to the court deciding the new case, then the judge in the presentcase should normally follow the rule of law established in the earlier case.Persuasive precedentFrom the f

15、oregoing it can be seen that courts higher in the hierarchy are not bound to follow the reasoning of courts at a lowerlevel in that hierarchy. However, the higher courts will consider, and indeed may adopt, the reasoning of the lower court. Asa consequence of the fact that the higher court is at lib

16、erty not to follow the reasoning in the lower court such decisions aresaid to be of persuasive rather than binding authority. It should also be borne in mind that English courts are in no way boundto follow the reasoning of courts in different jurisdictions, and it should be remembered that for this

17、 purpose Scotland qualifiesas having its own legal system. However, where a court from another jurisdiction has considered a point of law thatsubsequently arises in an English case, the English courts will review the reasoning of the foreign courts and may follow theirreasoning if they find it suffi

18、ciently persuasive.72 (a) Invitation to treatInvitations to treat are distinct from offers in that rather than being offers to others, they are in fact invitations to others tomake offers. The person to whom the invitation to treat is made becomes the actual offeror, and the maker of the invitationb

19、ecomes the offeree. An essential consequence of this distinction is that, in line with the ordinary rules of offer andacceptance, the person extending the invitation to treat is not bound to accept any offers subsequently made to them.The following are examples of common situations involving invitat

20、ions to treat:(i) the display of goods in a shop window The classic case in this area is Fisher v Bell (1961) in which ashopkeeperwas prosecuted for offering offensive weapons for sale, by having flick-knives on display in his window. It was held thatthe shopkeeper was not guilty as the display in t

21、he shop window was not an offer for sale but only an invitation to treat.(ii) the display of goods on the shelf of a self-service shop In this instance the exemplary case isPharmaceutical Societyof Great Britain v Boots Cash Chemists (1953). The defendants were charged with breaking a law which prov

22、ided thatcertain drugs could only be sold under the supervision of a qualified pharmacist. They had placed the drugs on opendisplay in their self-service store and, although a qualified person was stationed at the cash desk, it was alleged that thecontract of sale had been formed when the customer r

23、emoved the goods from the shelf. It was held thatBoots were notguilty. The display of goods on the shelf was only an invitation to treat. In law, the customer offered to buy the goods atthe cash desk where the pharmacist was stationed.(iii) a public advertisement Once again this does not amount to a

24、n offer. This can be seen fromPartridge v Crittenden(1968) in which a person was charged with offering a wild bird for sale contrary to Protectiriodns oAfc Bt1954, afterhe had placed an advert relating to the sale of such birds in a magazine. It was held that he could not be guilty of offeringthe bi

25、rd for sale as the advert amounted to no more than an invitation to treat.(iv) a share prospectus Contrary to common understanding such a document is not an offer. It is merely an invitation totreat, inviting people to make offers to subscribe for shares in a company.(b) A tenderThis form of invitat

26、ion to treat arises where one party wishes particular work to be done and issues a statement askinginterested parties to submit the terms on which they are willing to carry out the work. In the case of tenders, the person whoinvites the tender is simply making an invitation to treat. The person who

27、submits a tender is the offeror and the other partyis at liberty to accept or reject the offer as they please.The effect of acceptance depends upon the wording of the invitation to tender. If the invitation states that the potentialpurchaser will require to be supplied with a certain quantity of goo

28、ds, then acceptance of a tender will form a contract andthey will be in breach if they fail to order the stated quantity of goods from the person submitting the tender. If, on the otherhand, the invitation states only that the potential purchaser may require goods, acceptance gives rise only to a st

29、anding offer.In this situation there is no compulsion on the purchaser to take any goods, but they must not deal with any other supplier.Each order given forms a separate contract and the supplier must deliver any goods required within the time stated in thetender. The supplier can revoke the standi

30、ng offer but they must supply any goods already ordered (Great Northern Railwayv Witham (1873).3 A tort is a wrongful act against an individual which gives rise to a non-contractual civil claim. The claim is usually for damages,although other remedies are available. Liability in tort is usually base

31、d on principle of fault, although there are exceptions.Negligence is recognised as the most important of the torts, its aim being to provide compensation for those injured through thefault of some other person. However, an individual is not automatically liable for every negligent act that he or she

32、 commits andin order to sustain an action in negligence it must be shown that the party at fault owed a duty of care to the person injured as aresult of their actions. Consequently, the onus is on the claimant to establish that the respondent owed them a duty of care. Eventhen there are defences ava

33、ilable for the defendant in a tort action.(a) Although not strictly a defence for negligence, the application of the concept of contributory negligence can be used to reducethe amount of damages awarded in a particular case. It arises where the party making the claim is found to have contributed,thr

34、ough their own fault, to the injury they sustained. The onus is on the defendant to show that the claimant was at fault andcontributed to their own injury. An early example of the principle may be seen inJones v Livox Quarries(1952) in which aclaimant was found to have contributed to their own injur

35、y by showing a lack of care for their own safety by riding on theback of a dumper truck. Another example may be found inSayers v Harlow (1958) in which the damagesawarded to a woman, who was injured escaping from a public toilet in which she had been trapped due to a defectivelock, were reducedas he

36、r injuries had been exacerbated by the manner in which she tried to make her escape by climbing out of it.If contributory negligence is demonstrated, then by virtue of the Law Reform (Contributory Negligence)Act 1945, the levelof damages awarded will be reduced in line with and will depend upon the

37、extent to which the claimant sfault contributedto the injury sustained (in Jayes v IMI (Kynoch) (1985) the award suffered a 100% reduction).(b) Volenti non fit injuria is a Latin tag which essentially translates as no injury can be done to a personwho willingly acceptsthe risk . Of courser yv seriou

38、s injury can in fact be done to such a person, the point is that, as a result oftheir consent theylose their right to sue for damages for any injury suffered. Whilst contributory negligence operates to reduce the level ofdamages awarded, consent acts as a complete defence and no damages will be awar

39、ded if it is shown to apply.8Consent can be given where the claimant expressly agrees to the risk of injury or it may be implied from the claimant sconduct. An example of express consent may be seen in relation to medical treatment. In such situationsthe patient may berequired to sign a consent form

40、 which removes the right to complain about what would otherwise amountto the tort of battery.Of course the patient does not consent to the surgeon carrying out any procedure negligently and on the occasion of such negligence an action for damages would still arise.The principle of implied consent ar

41、ose inICI v Shatwell (1964) in which two brothers employed in aquarry ignored theiremployer s rules relating to safety, by testing detonators without using the shelter provided. As a result,the claimant wasinjured and sued the employer for breach of statutory duty as a result of his brother s action

42、s. The courtheld that both brothershad impliedly consented to the risks by their actions and had participated quite willingly. Consequentlythe employer was notresponsible to the injured brother.As may be seen, the defence relies upon the claimants consent to the risks, which should bedistinguished f

43、rom mereknowledge of it. Thus in Dunn v Hamilton (1939) a passenger accepted a lift in a car driven by a personshe knew to bedrunk. When she was injured as a result of the driver s careless driving it was held that she had notactually consented tothe risk of being injured, even although she knew the

44、re was such a risk. Section 149 Road Traffic Act1988 removed the possibility of consent being used as a defence against car passengers.4 (a) The abbreviation LLP signifies that the business is operating as a limited liability partnership. It is a requirement that thenames of such businesses must end

45、 with the words limited liability partnershipin either upper orlower case. Ordinary partnerships do not benefit from any limitation on the liability of the various partners. Consequently theindividual members of a partnership are jointly and severally liable for the debts of the partnership to the f

46、ull extent of theirpersonal wealth. The Limited Liability Partnerships Act 2000 provided for a new form of business entity, the limited liabilitypartnership (LLP), which, although stated to be a partnership, is actually a corporation, with a distinct legal existence apartfrom its members. Most impor

47、tantly, however, the new legal entity allows its members to benefit from limited liability, in thatthey will not be liable for more than the amount they have agreed to contribute to its capital.In order to form an LLP, the appropriate form must be registered with the Registrar of Companies. The form

48、 must contain: the signatures of at least two persons who are associated for the purposes of carrying on a lawful business with a viewto profit; the name of the LLP, which must end with the words Limited Liability Partnership LLP;the location of the LLP s registered office in England and Wales, or i

49、n Scotland; the address of the registered office of the LLP; the names and addresses of those persons who will be members on the incorporation of the LLP and a statementwhether some or all of them are to be designated members (see below); and a statement of compliance.On registration of the company,

50、 the Registrar will issue a certificate of incorporation.There must be a minimum of two members of the LLP. If the membership should fall below two for a period of six months,then the remaining member will lose their limited liability and will assume personal liability for any liabilities incurred d

51、uringthat period that the LLP cannot meet. There is no maximum limit on membership.Within the LLP, designated membership are responsible for ensuring that the LLP conforms with its duty to file its accounts with the Registrar of Companies.In respect of LLPs, the essential filing requirements relate

52、to: accounts; annual returns; changes in membership generally;or the abbreviation LLP,or the abbreviation changes in designated membership; and change to the registered office.(b) The use of the abbreviation Ltd indicates that one is dealing with a private limited company. Private limited companies

53、areincorporated enterprises and, as corporations, have an existence completely separate from that of their shareholder members.It is necessary that such companies be given a name and such is a requirement of the memorandum of association, which is required to establish the company.Section 59 Compani

54、es Act (CA) 2006 requires all private limited companies to have the word limited, or its Welsh equivalent,as the last word in their names (there is an exemption under s.60 for non-profit private limited companies of an essentially charitable or educational nature)., or its WelshSection 59 also allow

55、s the replacement of the full word limited by the abbreviationLtdequ ivalent cyf .The reason for requiring the word limited at the end of the name is to publicise the fact that they are indeed limited companies, the liability of their members being limited to any amount remaining unpaid on the value

56、 of the shares held.Hence if shares are fully paid up the shareholders have no further responsibility for the debts of the company.9(c) The use of the abbreviation plc indicates that one is dealing with a public limited company. As withprivate companies, sothe plc is a separate legal entity from its

57、 members with its own name. Section 58 Companies Act requires the use of the wordpublic limited company at the end of the company name or else the use of the abbreviation plc. Again there is a Welshalternative ccc. Also, as with the private company, the shareholders in a public limited company enjoy

58、 limited liabilitydetermined by any amount remaining outstanding in relation to the shares they hold.The major difference between the public limited company and the private limited company is that it is only the former that isallowed to issue shares to the general public. It is an offence for compan

59、ies other than public ones to issues shares to the public (CA 2006 s.755).Public limited companies tend to be very large and act as a mechanism for investment from outsiders. Many of them arelisted on the Official Listing of the Stock Exchange, although it is important to emphasise that public limit

60、ed companies arenot necessarily listed on the stock market. As a result of the size and investment nature of public companies they are subjectto much stricter controls, both at common law and under the companies legislation, than are private companies.5 The concept of capital refers to the financial

61、 resources raised by comanpies to finance their operation. The essential distinction incompany law is between share capital, that is provided by the members of the company, and loan capital, which the company borrows from outsiders.(a) Ordinary sharesAs defined in Borland s Trsutees v Steel (1901) a

62、 share: is the interest of a shareholder in the company measured by a sum of money, for the purpose of liability in the first place,and of interest in the secondThe nominal value of the shares held represents the maximum liability of a shareholder in a limited liability company.However, the actual l

63、iability of a shareholder is the amount remaining unpaid on any shares held. This difference arises inthe following circumstances. When companies issue shares they may not require the full nominal value of the shares to bepaid at once. This allows the company the possibility of raising further capit

64、al from its members as it becomes necessary inthe future. The amount already paid to the company is referred to as called-up capital. Any uncalled capital represents theamount of potential liability. If the shares are fully paid up then the shareholder has no further liability towards meeting thecompany s debts. Purchasers of shares may be required to pay more than the nominal/face valueof theshares, but sharescannot be issued at less than that value.In regard to return, shares enjoy an advantage over other securities. If the company is profitable, not only will they enjoy