Doctrines of Separate legal entity and Limited liabilityA corporation is an artificial being created by operation of law, having the right of succession and the powers, attributes and properties expressly authorized by law or incident to its existence. Corporations are creatures of the state; they exist because the state allows them to do so. They are given the right to act as a corporation because the state suffers them to be its creation. Before an association or a group can perform corporate functions they must first fulfill several requirements, and only after this can the state recognize them as a corporate entity.
(Penrose, 2005)After incorporation, the association is given rights and corresponding duties that it may exercise and follow in order to continue exercising corporate functions. With a corporation’s existence come obvious advantages. The advantages of a corporation are as follows: (a) a corporation may sue and be sued, enter into contracts and acquire properties in its own name and in its own right; (b) the stockholders of a corporation are not liable for the debts and obligations of the corporation beyond their unpaid subscriptions; (c) a corporation continues to exist despite changes in ownership of the stockholdings in the corporation or even when its members or stockholders should die; (d) shares are transferable even without the consent of other stockholders; (e) management is clearly defined in a corporation and centralized through its board of directors; and (f) it enables greater business ventures to be undertaken because of its ability to mobilize more capital by being able to allow many individuals to contribute to its fund by acquisition of shares.
(Phillip, 1993)With all things, a corporation has its advantages and disadvantages. The disadvantages of incorporation include: (a) the transferability of shares may result in persons having conflicting interest to be stockholders in the same corporation; (b) the limited liability of stockholders limits the credit of the corporation; (c) corporations are more difficult to organize; (d) minority stockholders are not given any right to participate in the management of the corporation which subjects it to abuse of corporate management. Since there is severance of control and ownership, control of the corporation will be vested with the Board of trustees or Directors, thus investors have no say over the use of their investment and little voice in the conduct of the business; (e) the corporation’s business activities are limited by the powers provided in its articles of incorporation and those which are incidental thereto; (f) it results in double taxation because its income is subject to income tax and the share in the income in the form of cash dividends that it gives its individual stockholders are likewise subject to income tax, where applicable; and (g) the formation and incorporation of a corporation entails a lot of difficulties and costs, particularly the requirements made by the law so as to qualify for incorporation. (Sharswood, 1883)The two most controversial advantages of a corporation are its separate juridical personality and its limited liability against prosecution. The difference between the separate juridical personality and the limited liability of corporate officers lies in its application. Disregarding the separate juridical personality is applied when the stockholders, regardless of artificial or natural persons are guilty of using the corporation for fraud. When the corporation acts as a mere alter ego of the members, then the separate juridical personality of the corporation from its members should be pierced. In the same vein, the limited liability feature of a corporation should and must be disregarded when the corporate officers commit felonies or are guilty of torts.
(Simon, 1996)Theories of Corporate Existence and PowersThere are basically two theories on corporate existence and powers, the first view known as the theory of concession states that a corporation being a creature of the state owes its life to the state, its birth purely dependent on its will; it is a creature without any existence until it has received the imprimatur of the state acting according to law. It will have no rights and privileges of a higher priority than that of its creator and cannot legitimately refuse to yield obedience to acts of its state organs. This theory submits that the corporation exists because the state allows it to. The second theory is the theory of corporate enterprise or economic unit. According to this theory, the corporation is not merely an artificial being but more of an aggregation of persons doing business, or as an underlying economic unit known as a business enterprise.
(Gobert, 1994)The emergence of these theories is a product of abuse of corporate privilege. The trend now is that most jurisdictions do not succumb to a single theory but acknowledges both. Application of any of the theories is dependent on circumstance surrounding the case and is mostly a question of fact. Jurisdictions apply the theory of concession when dealing with corporations when its purpose is to control the corporation and to submit it to the state’s will, whereas, the second theory finds application when the situation calls for piercing the veil of corporate fiction.
(William, 1891)Limited LiabilityThe actuality that a registered corporation is a different person in total from the subscribing members to its memorandum of association and its other members if any implies that debts that are supposed to be made good by the company are not debts that members should cater for. For example, if the directors of a company had borrowed loan as empowered by them by the memorandum of association and such act is within their powers provided for in the articles of the company, the company alone in this case have to meet such an obligation and members will be exempted from paying such monies.This example is best explained and illustrated in the case of; Salomon v Salomon and Co Ltd where; Salomon for many years carried on a business as a leather merchant. In 1892 he registered a limited company called Salomon and Co. Ltd. to take over the business. The share capital of the company was ?40,000, divided into 40,000 shares for ?1 each.
The company duly took over the business of Salomon at the agreed price of ?38,782 19s 7d after it was agreed that part of the purchase price should be paid by the issue of debentures for ?10,000 by the company to Salomon. In pursuance of the said agreement as to the mode of [payment of the purchase price, debentures for ?10,000 was issued by the company to Salomon in part of payment thereof.Later at the request of Salomon, these debentures were cancelled and fresh debentures to the same amount were issued to X as security for ?5,000 to the company. Shortly after the registration of the company, 20,000 shares of ?1 were issued by the company to Salomon. From the date until an order was made for the compulsory liquidation of the company, in 1893, the share register of the company remained unaltered, 20.
001 shares being held by Salomon while his wife, daughter, and four sons held one share each apparently as nominees for each for him. The company became insolvent and defaulted in paying interest on the debentures, and in 1893 X instituted an action to enforce his security against the assets of the company. Thereafter, at the instance of unsecured creditors of the company, a liquidation order was made, and a liquidator appointed.
The debts of the unsecured creditors of the company amounted to ?7,733 8s 3d. The assets of the company amounted to approximately ?6,000 and after allowing for X’s debt and interest under the debentures, it would leave a balance of ?1,005, which Salomon claimed as a beneficial owner of the debentures for ?10,000. In X’s action to enforce his security, the liquidator made a counterclaim against X and Salomon, and contended that the company was mere nominee and agent of Salomon, that Salomon to that extent was liable to indemnify the liquidator against the whole of the unsecured debts of the company, and that he was entitled to alien for that sum on all moneys payable by the company to Salomon. The Court of Appeal agreed with the liquidator’s contentions and Salomon appealed to the House of Lords. It was held by the House of Lords that the company was distinct person from Salomon and not his agent and the debentures were perfectly valid. Lord Macnaghten said:“The company attains maturity on its birth.
There is no period of minority…no interval of incapacity… The company is at law a different person altogether from the subscribers to the memorandum; and though it may be that after incorporation the business is precisely the same as it was before, and that the persons are mangers, and the same hands receive the profits, the company is not in law the agent of the subscribers or trustee for them”In the circumstances where the company in question is rendered unable to pay back the amount owed; the creditor has the right to petition the court of law particularly the High Court in quest for obtaining an order for winding up the company. It is in this case that during the winding up of the company’s subscribers or members of the company in this matter will be required by law to make good the debt basing on their numbers of shares that they hold in the company if the company is s limited by Share Company.
Where the company is classified as limited by guarantee then the members will be called upon to pay the debt depending on the amount prescribed by the memorandum of association of the company.However, it should be clearly noted that the members of the company are only entitled to paying what they owe the company as the company’s debtors with regards to the amount of shares that they acquired on credit and they have not paid all the amount due; this only applies to companies limited by shares. After such collection the appointed liquidator of the company will now use the amount collected to settle the debts of the company.Also it should be clearly understood that the creditor of the company cannot at any time move to court in an attempt to sue or institute a legal proceeding against any member of the company so that he can recover the amount that he owes the company at large. Under this point it is always noted that a member of a company cannot in any chance become a debtor legally because the creditor owes the company.
(Orhnial, 1982)Usually the limited liability clause provides that the memorandum of association of a company limited by guarantee and that limited by the shares usually outline that “liability of the members who have subscribed to the company is limited”. In companies limited by shares which usually are registered and can either be public or private companies are usually said to have the liability of the members which is limited amount in the memorandum. Therefore it is only the members’ liability which is limited and not in any cases the liability of the company. It can therefore be concluded that the word limited in companies limited by shares is deemed to be misleading and thus should not be used to that extent. Under such a company the capital is usually subdivided in to shares of predetermined value such as capital of ?200,000 divided into 20,000 shares of ?20 each.
Thus the members of such a company are liable for example to pay ?20 for every shares that they have and thus if some of the members have already paid the amount cannot be liable. (Neuner and Carl, 1992)Companies limited by guarantee on the other hand are companies that member’s liability are limited and it is stated so in the memorandum of such a company and the amount so limited is stated. The members of such a company upon winding of the company are called upon to make good the debt of the company ratably. Usually the memorandum of such a company should outline in there memorandum that, “ every member of the company undertakes to contribute to the assets of the company in the event of its being wound up while he is a member… such amount as may be required, not exceeding(so many) pounds”. Therefore it can be noted that the member’s liability is conditional and he/she is always required to pay the specified amount ‘guaranteed’ (Mirchandani, 1998)Unlimited companies on the other hand are companies defined as companies that the member’s liabilities are not limited.
Even though such a company is said to be a separate legal entity, the liability of its members always resembles that of partners but only their liability is not to those of the company’s creditors but to the company itself for that matter. (Mayson, 2005)Separate legal entityThe concept of separate juridical entity has several implications. Being an officer or a stockholder of a corporation does not make one’s property also that of the corporation, and vice-versa, for they are separate entities.
A president or a director cannot be held solitarily liable with the corporation for mere breach of contract because the latter has a distinct juridical personality; nor can a treasurer be held personally liable for the judgment rendered against the corporation. Shareholders are in no legal sense the owners of the corporate property or credit which is owned by the corporation as a distinct legal person. The interest of shareholders in a corporate entity is purely inchoate; and this purely inchoate interest will not entitle them to intervene in a litigation involving corporate property. Likewise, a corporation has no legal standing to file a suit for recovery of certain parcels of land owned by its members in their individual capacities. Also, the tax exemptions granted to a corporation do not pertain to, nor can they be availed of by, its stockholders. (Meiners, 1979)Another application of this doctrine relates to the fiduciary relationship between a corporate officer and a stockholder.
Take for instance a president who holds a fiduciary relationship with the corporation only. Since the corporation has a personality distinct from the stockholders, the stockholders cannot file suit in their own name against the officer for his acts against the corporation. In a case, it has been held that a director of an insolvent company who, in breach of duty to the company, transferred assets beyond the reach of its creditors owed no corresponding fiduciary duty to an individual creditor of the company, such a situation shows that the court’s hands are tied, it cannot lift the corporate veil merely because it considers that justice requires it. (Lobban, 1996)Each and every partner has unlimited liability for the debts and liabilities of the company except in the case of limited partnership.
Usually unlike the company a partnership has no legal existence from partners, has no perpetual succession such that incase of death, bankruptcy, mental disorder or retirement of any partner may lead to closing of partnership. Like any other legal person the company or corporation is a legal body apart from its members capable of rights and duties of its own, and endowed with the potential of perpetual succession and it usually becomes animated with the breath of life when the legal registrar of companies authenticates the certificate of incorporation with his seal. For example, under liability of partners the companies acts usually set down a general rule which states that every partner is jointly liable with others for all debts and obligations of the company incurred while he is a partner, and after his death his estate is also severally liable to such debts and obligations, so far as they remain unsatisfied, but subject to the prior payment of his separate debts. (Kam, 1998)However there is an exception to such a rule that is a new person admitted as a new partner into an existing partnership shall not become liable to debts of the firm for any amount taken before he joined the firm as a partner. Usually the partners are jointly liable for a breach of contract entered by the firm with a third party. This implies that in actuality where there is more than one defendant, the liability incurred should be equally or ratably shared by all defendants. The plaintiff in such a case can only bring one action and if, for any reason, he sues only some partners and obtains a judgment against them, he cannot bring fresh action against all or the rest of the partners particularly if he feels unsatisfied with the judgment.
For example a company with four partners W, X, Y, and Z has failed to pay debt of ?20,000 entered as a result of the contract they have entered with A. A decides to sue W and Y for full recovery of debt and in the process obtains a judgment for the full amount. After the judgment has been heard in the court of law A founds out that both W and X can only raise ?10,000. Therefore this implies A cannot bring any fresh action against the other partners Y and Z in order to recover the full amount.
For this reason then, it is always advisable to bring an action for the breach of contract in the name of the company and thus it will involve all the partners in the suit. (Jonathan, 1999)Under the liability of a firm with regards to tort, a firm is always liable for any loss or injury for that matter to a third party by the wrongful act or omission of a partner if they were carried out by him while acting in the course of ordinary business of the company. Under the laws governing partnership agreements each partner is liable in tort jointly with his co-partners for all debts or liabilities of the company and he is always liable severally that implies that each partner is liable and the plaintiff can sue each partner successssively. In case of joint and several liabilities, the plaintiff has several causes of actions.
He can sue all the partners jointly, or he can sue them separately as long as his claim under tort remains unsatisfied. For example while negligently driving the company’s van on the firm’s business. A injures X in the process. The latter has the right to sue A or any one of his partners or the firm.
If he sues A for the tort of negligence, he is not prevented from suing the remaining partners if the judgment awarded by the court against A remains unsatisfied. Considering the above statement, the firm’s liability arising out of contracts, differs from the liability arising under tort. The firm is jointly liable for the breach of contract that is the plaintiff can sue only once, but for the tort committed by the partner in the course of doing business of the company, the firm’s liability is joint and several, that is the plaintiff has more than one course of action. (John and Peter, 2000)Usually corporate associations put to test the boundaries of both the doctrines of limited liability and that of separate legal liability.
This has led in the process cropping up of matters which usually results from the activities of corporate groups and such issues are connected through legal tests and cross shareholding in such corporate groups. Such issues include questions whether the company law should continue to always term each firm as separate legal entity or only association be termed as the suitable legal entity if such firms are jointly connected within such group. The other issue is that of the extent of directors of a particular company being entitled to enforce the interests of the company at large over and beyond those of personal firms of which they hold the positions of directors.
The other weighty matter is that of whether every firm in any group should be liable to the amounts due of every firm in the group. (Hunt, 1936)Such matters require urgent solutions and it may take the form of deep-seated answer that should be directed to avoiding the old rule of strict entity law and embrace enterprise law that will ultimately reflect the reality of financial positions of the corporate groups. Such enterprise law should be universal and can be applied in suing processes, contractual agreements, owning and transferring of chattels and property and perpetual succession among other contemporary issues in the corporate world. Therefore it will be prudent to establish a global legal order which in the process will lead to enactment of such rules for all groups in general. The other solution for such matters is that of coming up with contemporary reforms and suggests legislative changes which will enable the directors and shareholders of a company to come up with decisions designed for their own interest rather than those interest of the whole corporate group.
It should also be noted that insurance schemes will play a major role in solving such matters and thus with such schemes the creditors of a company will be protected incase of insolvency of a particular company. Pooling of resources will be encouraged and therefore contribution of the members of corporate groups will be encouraged which will act as an opportunity of trading with the concept of limited liability. Therefore stringent regulations will be put in place to make certain that firms remain solvent and private insurance providers can administer. (Hudson, 2003)The subject of holding corporation liability for meddling with a subordinate agreement have to be seen in opposition to the background of two overlying notions that are the innermost lawful characteristics of corporate groups ; the actuality that firms in groups are regarded as separate juridical entities and the reality that limited liability pertains to the component firms in a group. Such attributes, even though it is subjected to a number of limited exceptions leads to the likelihood that a holding company might, with limited threat of liability, gives an opportunity any of constituent subsidiaries to shrivel on the trailing plant by declining to offer the subsidiary firm with adequate finances to operate.The English company law exhibits some inquisitive attributes, which might produce questioning outcomes. A parent firm may generate a number of firm branches, all restricted openly or in some way by the shareholders of the parent business.
For example, if one of branch firms wants to alter the metaphor and in the process reduced into bankruptcy to the disappointment of its creditors, parent firm and the other branch firms might flourish to the happiness of the shareholders devoid of any legal responsibility for the amount overdue of the bankrupt subsidiary. (Gower, 1992) Lifting the Veil under case lawSeveral English cases have been variously classified by English writers as instances of -lifting the veil of incorporation. However, fro such cases it can be deduced that the responsible judges merely ascertained the reality of the previous cases brought to them and use such information to make rulings instead of lifting the veil of incorporation. In such decisions Solomon’s case principle is always modified. From the statement of Solomon’s case ruling it can be inferred that if a court of law held that a firm acted in particular instance as an agent of its holding company, the veil of the incorporation would have been lifted. This is well illustrated in the case of Firestone Tyre & Rubber Co v Llewellin where the judge held that, on the basis of the trading arrangements between the holding company and its subsidiary, that the subsidiary was the agent of the holding company.
(Geoffrey, Charles, and Morse, 1991)The case is as follows; An American company formed a wholly –owned subsidiary in England to manufacture and sell its brand of tyres in Europe. The distributors sent their orders to the subsidiary direct and the orders were met without any consultation with the American company. The subsidiary received the money for the tyres sold to the distributors and, after deducting its manufacturing costs plus 5%, it forwarded the balance to the parent American company. All the directors of the subsidiary resided in England except only one who was the president of the American company and they managed the affairs of the company freely on a daily basis but it was controlled by the American company. It was held by the House of Lords that the American company was carrying on business in England through its English subsidiary ‘acting as its agent’ and it was consequently liable to pay United Kingdom tax. (Frederic, & Frederic, 1982)On the other hand English courts have arbitrated on frequent instances and lifted the veil of incorporation so as to avoid a fraudulent or improper design by group of devious promoters or shareholders. This is best illustrated in the case of Gilford Motor Co Ltd V Horne (1933)Where the plaintiff company bought various parts of motor vehicles from manufacturers assembled the parts on the company’s premises and sold the products under the name of Gilford Motor Vehicles.
They also sold separate parts which were handed over to buyers for cash. By an agreement dated may 30, 1929, the defendant was appointed managing director of the plaintiff company for a term of six years. Clause 9 of the agreement provided that, ‘the managing director shall not at any time while he is in office of a managing director or afterwards solicit, interfere with or endeavor to entice away from the company any person, company who at any time during or at the date of termination of the employment of the managing director were customers of or in the habit of dealing with the company’. The employment of the defendant as a managing director was terminated in November, 1931, by an agreement between parties under which the defendant was to receive a fixed sum payable in installments.
Shortly afterwards the defendant opened a business for the sale of spare parts of Gilford Motor Vehicles. (Francis, 1901)On April 8, 1932, a private company called ‘JM. Horne & Co’ the second defendant, was incorporated, and the defendant transferred the business to it. “JM’ were the initials of defendant’s wife. The company had capital of 500 shares of ?1 each, of which 202 were issued, 101 being issued to the defendant’s wife and 101 to Mr.
Howard, who was previously an employee of the plaintiff company but later became an employee of the defendant company. The defendant’s wife and Mr. Howard were the only directors of the defendant company whose registered office was the private house of the defendant. Shortly after its incorporation, the defendant company sent out circulars and other documents inviting some persons to deal with it as a company which could supply Gilford Motor spare parts.
The persons to whom the circulars were sent had been customers of the plaintiff company during the period when the defendant was managing director of that company. (Farrar & Hannigan, 1998)The evidenced adduced in the court established that the defendant’s wife, as one of directors, was not taking any part in the business of the management of the defendant company and the other ‘director’, Mr. Howard was an employee of the company. On the basis of the aforesaid facts the Court of Appeal granted an injunction restraining the defendant Horne and the defendant company from committing breaches of the covenants between the defendant and the plaintiff company since the defendant company is a separate entity from the defendant Horne.
The increasingly sophisticated use of group structures further created difficulties in the strict application of the Salomon ruling. Take for example X Ltd who owns all the issued share capital in three other companies – D Ltd, E Ltd and F Ltd. These companies are known as wholly owned subsidiaries.
X Ltd controls all three subsidiaries. Although in economic reality there is just one business, it is organized through four separate legal personalities which take advantage of the limited liability of corporations. As a result, X ltd could choose to conduct it’s more risky or liability prone activities through D Ltd. And applying the Salomon doctrine, the assets of X ltd.
cannot be encumbered when D ltd. becomes bankrupt. (Farrar, 2004)One of the leading cases in piercing the corporate veil between a parent and a subsidiary company answers the question of when the parent shall be liable for the subsidiary, it held that the court may pierce the corporate veil in the following circumstances: (a) when the court is construing a statute, contract or other document; (b) when the court is satisfied that the company is a “mere facade” concealing the true facts; or (c) when it can be established that the company is an authorized agent of its controller or its members. This doctrine is still the main doctrine followed by the courts to this day. (Emanuel, 2004)In one case, the Managing Director of Natural Life Health Foods Ltd (NLHF) was also its majority shareholder.
The company’s business was selling franchises to run retail health food shops. One such franchise had been sold to the claimant on the basis of a brochure which included detailed financial projections. The managing director had provided much of the information for the brochure. The claimant had not dealt with the Managing Director but only with an employee of NLHF. The claimant entered into a franchise agreement with NLHF but the franchised shop ceased trading after losing a substantial amount of money. He subsequently brought an action against NHLF for losses suffered as a result of its negligent information contained in the brochure. NLHF subsequently ceased to trade and was dissolved.
The claimant then continued the action against the Managing Director and majority shareholder alone, alleging he had assumed a personal responsibility towards the claimant. (Jertz & Miller, 2004)In this case, The House of Lords was aware that the effect of this claim was to try to nullify the protection offered by limited liability. In its judgment the House of Lords considered that a Director or employee of a company could only be personally liable for negligent misstatement if there was reasonable reliance by the claimant on an assumption of personal responsibility by the Director so as to create a special relationship between them. There was no evidence in the present case that there had been any personal dealings that could have conveyed to the claimant that the Managing Director was prepared to assume personal liability for the franchise agreement. (Department of Trade and Industry, 2000)The House of Lords may seem hesitant to negate the Salomon principle in cases of tort; however, it has been held that is deceit rather than negligence the courts will more readily allow personal liability to flow to a Director or employee. (Geraghty, 2002)As a general rule, a corporation is no more liable than a natural person would be for torts committed outside the scope of its agent’s or employee’s authority or outside of the course of their employment, unless it has been expressly authorized or has ratified their act; and it can make no difference whether the agent or employee undertakes to act for the corporation in a matter which is beyond his or her authority, or acts for him or herself. (Carus-Wilson, 1954)Although the terms “scope of authority” and “course of employment” are not susceptible of exact definition, in general, an act is within the course of employment if (1) it is fairly and naturally incident to the business, and if (2) it is done while the employee is engaged upon the employer’s business, and is done, although mistakenly or ill-advisedly, with a view to further the employer’s interest, or from some impulse or emotion which naturally grew out of or was incident to the attempt to perform the employer’s business, and did not arise wholly from some external, independent and personal motive on the part of the employee to do the act upon his or her own account.
(Carrasco and Dupee, 1999)The doctrines of separate legal personality and of limited liability are already well settled in law. Reforming the both principles seems unnecessary. The exception to the doctrine of separate juridical personality wherein the lifting of the veil of corporate fiction was applied seems to serve the purpose of the law.
It appears that case law is evolving and so far, the instances where the piercing the veil of corporate fiction is sufficient to protect the rights and interests of third persons. (Bagehot, 1867)The limited liability principle in cases of torts, on the other hand should be reformed. It has been provided for that the limited liability of corporations as much as possible should not be disturbed.
This was evident in the case of Williams’s v Natural Life Health Foods Ltd.; however, in cases of fraud the courts are quick to lift the veil of corporate fiction. There should be no distinction made between these two cases. Just like in the United States, the separate juridical personality should be upheld in both cases in Britain. This jurisdiction should acknowledge that as much as a corporation can be subject of tortuous liability through misrepresentation, it should also be subject to liability arising from fraud.
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