Doctoral Degrees (Mercantile Law)

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Browsing Doctoral Degrees (Mercantile Law) by Subject "Agency"

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    'n Regsvergelykende studie aangaande die leerstuk lig van die korporatiewe sluier
    (University of the Free State, 2013-02) Keuler, Anel; Snyman-Van Deventer, E.
    English: Lifting of the corporate veil as an exception to the rule of limited liability surely is one of the most litigated issues in corporate law worldwide. The reason being the lack in predictability and sturdy rules that can be used as guidelines when setting aside the corporate veil. The common approach of courts is to determine each case on its own merits which left the doctrine of lifting the corporate veil enveloped in the mist of metaphor, unpredictable and vague. As an answer to the need for sturdy guidelines section 20(9) was implemented in die 2008 Companies Act stating that the separateness of a legal person can be set aside if an unconscionable misuse of the corporate personality has taken place. Section 20(9) however does not state what exactly will be deemed as an unconscionable misuse. The interpretation of unconscionable misuse is there for left to the courts discretion. The aim of this study is to find answers to this vagueness and uncertainty by identifying possible grounds or guidelines for lifting of the corporate veil. During this comparative study attention is also given to the legal state of matters regarding lifting of the corporate veil in Australia, the United States of America and Canada to identify useful guidelines and principles which will assist the South-African courts in setting aside the corporate veil. The Australians considers the proceeding of business under insolvent circumstances as a statutory ground for lifting the veil. The American courts also show support for fraud as a ground for lifting the corporate veil. A solid Canadian ground for lifting the corporate veil is in the family context where one party would unjustly suffer a loss if the other parties company is treated as a separate entity. The Canadians also considers tax evasion and not adding the suffix “Ltd” to the company name as grounds for lifting the corporate veil. These mentioned grounds for lifting the corporate veil can surely be adopted by the South-African courts as part of a sturdy set of guidelines.
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    Verteenwoordiging in 'n Suid-Afrikaanse maatskappyregtelike verband: 'n regshistoriese en regsvergelykende ondersoek
    (University of the Free State, 2008-09) Rabie, Pierre Jacques; HENNING, J. J.
    English: The general principles of the law of agency form the basis of representation in South African company law. A unique set of agency principles have however developed in company law as a result of specific needs that arose from the application of certain company law doctrines (for example the doctrine of constructive notice, ultra vires doctrine, doctrine of disclosure and the Turquand rule) in this field of study. An attempt is made to elucidate the contiguity of these doctrines. The common law position regarding agency was originally regulated by the Roman Dutch principle of direct agency. This was coupled with extensive regulations regarding the relationship between principal and agent. These regulations have not provided a solution to the questions regarding agency in a modern society. A very strong need for the development of South African agency law arose as a result of this. English law provided the source for the development of the South African law of agency. The result of the development is that the law of agency in South Africa has a Roman Dutch base, but is strongly influenced by English law principles in this regard. The hybridisation of the South African legal position has provided some solutions. It must however be noted that this process has also created numerous problems. The question can be posed whether the game is worth the candle. If the position regarding agency is considered in other jurisdictions as well as in the law of close corporations it is clear that the only solution seems to be that the legislature has to remedy the situation. This has however not been done in South Africa. The South African law of agency in a company context is plagued by many difficulties. Possible solutions for these problems are provided. The research has been done on a comparative basis. The legal positions in Australia, England and the USA have been selected for this purpose.