英米会社法における発起人契約の法理

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URI http://shark.lib.kagawa-u.ac.jp/kuir/metadata/4217
Title
英米会社法における発起人契約の法理
Title Alternative
Promoter's contracts in Anglo-American business corporation laws
File
Description

Generally speaking, the promoter of the corporation (company) has been defined as the person or as one of the persons, who carries out the necessary work in connection with the formation and floatation of the corporation, and his primary function is to find an enterprise and interest investors in financing the proposed corporation to get it started. He is the pre-incorporation developer and manager of the business which the proposed corporation will undertake. To accomplish this end, various preliminary agreements and contracts may be necessary to be established or entered into between tho vendors of the properties or rights and the promoter. As is shown in English loading cases, it is an accepted theory of law that an agent cannot contract on behalf of a non-existent person [Kelner v. Baxter (1866)], and a corporation incorporated subsequently cannot ratify a contract made in its behalf before its incorporation; and according to this general principle, a corporation is not liable for the contract made in its behalf by its promoter befor incorporation. And therefore, the promotor is personally liable for the contracts made by him befor incorporation, even if made on behalf of the corporation (in the absence of the agreement to the contrary). But in nearly all states in the U. S. A. this (English) doctrine has been repudiated. American courts hold that a contract made by the promoter on the corporation's behalf may be adopted by the corporation when organized, and that then the corporation is liable for the contract. According to Ballantine, On Corporation, p. 105, ""such adoption, formal or informal, is recognized by practically all American courts upon various theories: ratification, adoption, acceptance of a continuing offer or novation."" The object of this article consists in the analysis and introduction of (1) promoters' rights and liabilities on contracts made on behalf of the proposed corporation, (2) rights and liabilities of corporations on contracts made on their behalf by promoters and (3) ...

Author
著者 蓮井 良憲
著者(ヨミ) ハスイ ヨシノリ
著者(別表記) Hasui Yoshinori
Publication Title
香川大学経済論叢
Volume
26
Issue
1
Start Page
49
End Page
89
Publisher
香川大学経済研究所
Published Date
195305
ISSN
0389-3030
NCID
AN00038281
Resource Type
Departmental Bulletin Paper
Language
jpn
Text Version
publisher
Set
香川大学
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