From the discussion in the essay "The Company Law for Accounts," it is clear that a promoter of a company has many duties including disclosure of any profits made during the promotion of the company. This means that one must not make any secret profit without disclosing it if he is a promoter…
In case a promoter makes a profit secretly, the company may commence a legal action for rescission or recovery of the profits made secretly. This promoter is assumed to have executed without utmost good faith. This means that disclosure of their activities is the most important issue and they must work within the objectives of the promoters and must use their skills knowledge for the best of the firm (Siddharthacadey, 2010).
A promoter is any person involved in the planning to incorporate or initiate a running of a company, other than persons involved in a purely professional capacity. A promoter need not necessarily be the main person behind the incorporation, but he must have some executive function. The stereotype of a company and sells his business to it is a promoter.
A promoter has a fiduciary duty to the company he is forming and this requires him to disclose all profits he makes during the promotion of the company...
The courts have established the principle that a promoter stands in a fiduciary relationship with the company, which he is forming. This does not mean that he is barred from making a profit out of the promotion. It means that any profit made must be disclosed to the company. Breach of promoters’ duty If a promoter makes a profit and fails to disclose he breaches his duty of fiduciary. In the event of non- disclosure of profits the company may commence proceedings for rescission or for recovery of the undisclosed profits. The case study The case at hand is that Candy received a gift that he did not disclose to the other promoters. Therefore, he should be compelled to rescind the property to the company. The law prohibits individuals from unjustly enriching themselves at the expense of other partners. The other party should be compensated adequately to act as consideration. However, it should be noted that not all instances that parties are required to make compensated. In the case of unformed company the promoter is required to disclose rather compensate. In contract law, the pre-incorporation contracts are not enforceable, but the benefit accruing from it is disclosable. Being the fiduciary person Candy had certain legal obligations to fulfil towards the beneficiary. However, the very moment the Candy has taken a wrong approach of lying company, the bond of fiduciary relationship has been violated. This was confirmed in the case of Gluckstein v Barnes . In the case promoters had made profits before incorporation but they failed to disclose this fact. In their case, they misrepresented facts in prospectus that they were to buy a property at certain amount which they were unable to raise. ...
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9 Pages(2250 words)Case Study
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