商法 第2版PDF电子书下载

Part Ⅰ ESSENTIALS OF THE ENGLISH LEGAL SYSTEM 3

1 Essentials of the legal system 3

1.1 The classification of English law 3

1.2 Legal personality 3

1.3 The sources of English law 4

Preface 9

Table of Cases 10

1.4 Statutory interpretation 11

1.5 European Community law 16

1.6 The European Convention on Human Rights 22

Recommended further reading 24

Questions 24

2.2 The civil courts 25

2 Civil dispute resolution 25

2.1 Tribunals 25

2.3 The stages of an action in the High Court 28

2.4 The stages of an action in the county court 31

2.5 Enforcement of civil judgments 33

2.6 Arbitration 35

Table of Statutes 46

2.7 Alternative dispute resolution(ADR) 50

Recommended further reading 52

Questions 52

Part Ⅱ INTRODUCTION TO THE LAW OF OBLIGATIONS 57

3 The law of contract 57

3.1 Essentials of a contract 58

3.2 Matching offer and acceptance 58

3.3 Acceptance 61

3.4 Tenders 63

3.5 Exceptional cases 63

3.6 Consideration 63

3.7 Intention to create legal relations 68

3.8 Collateral contract/lock-out agreements 69

3.9 Vitiating elements 70

3.10 Operative mistake at common law 70

3.11 Operative mistake in equity 73

3.12 Misrepresentation 74

3.13 Duress,undue influence and unconscionable bargains 78

3.14 Public policy and illegality 80

3.15 Absence of formalities 86

3.16 Capacity to contract 87

3.17 Terms of the contract 90

3.18 Terms implied by the court 90

3.19 Terms implied by statute 91

3.20 Classification of terms as conditions and warrinties 91

3.21 Exclusion or exemption clauses 93

3.22 Incomplete or inchoate agreements 96

3.24 Performance 97

3.23 Discharge of contracts 97

3.25 Discharge by agreement 98

3.26 Discharge by acceptance of breach 100

3.27 Discharge by subsequent impossibility:frustration 101

Recommended further reading 103

Questions 103

4 The law of tort 105

4.1 Importance of tortious liability 105

4.2 Establishing tortious liability 107

4.3 General defences to tort 108

4.4 Persons who can sue and be sued in tort 109

4.5 More than one person liable as tortfeasor 110

4.6 Cessation of liability 111

4.7 Negligence 112

4.8 Defences to an action for negligence 120

4.9 Occupiers liability 122

4.10 Nuisance 125

4.11 The rule in Rylands v. Fletcher 130

Recommended further reading 134

Questions 134

5 Judicial remedies for contract and tort 135

5.1 Damages 136

5.2 Consequential and incidental loss 138

5.3 Remoteness of damage in contract 139

5.4 Mitigation of loss 140

5.5 Contributory negligence 140

5.6 Non-compensatory damages 140

5.7 Compensatory damages in tort 141

5.8 Remoteness of damage in tort 142

5.9 Intervening cause 144

5.11 Contributory negligence 145

5.10 Mitigation 145

5.12 Pure economic loss 146

5.13 Non-compensatory damages in tort 147

5.14 Equitable remedies in contract 148

5.15 Restitutionary remedies 151

Recommended further reading 152

Questions 153

6.1 Business organisations in the UK 157

6.2 The sole trader 157

6 Business organisations 157

Part Ⅲ BUSINESS ORGANISATIONS 157

6.3 The partnership 158

6.4 The registered company 158

6.5 Changes in company form 160

6.6 Groups of companies:holding and subsidiary companies 161

6.7 General distinctions between partnerships and companies 161

Recommended further reading 172

Questions 172

7.1 The essentials of partnership 173

7 The law of partnerships 173

7.2 The formation of a partnership 177

7.3 Illegal partnerships 179

7.4 The relationships of partners to persons dealing with them 180

7.5 The distinction between actual and usual authority of partners 181

7.6 Liability for debts and contractual obligations 182

7.7 Liability for torts and other offences 182

7.8 Holding out:the liability of the quasi-partner 184

7.10 The relationship of partners to one another 185

7.9 Liability of incoming and outgoing partners 185

7.11 Partnership property 186

7.12 The rights of partners inter se 187

7.13 Duties of partners 188

7.14 Dissolution of partnership 190

7.15 The consequences of dissolution 192

7.16 Treatment of assets on dissolution 193

7.17 Application of assets on dissolution 194

7.18 Profits made after dissolution but before winding up 195

7.19 Rescission of partnership agreement 195

7.20 Dissolution of insolvent partnership 195

7.21 Limited liability partnerships in England and Wales 196

Recommended further reading 197

Questions 197

8 Registered companies 198

8.1 The constitution of a registered company 198

8.2 The articles of association 203

8.3 The legal effect of the Memorandum and Articles of Association 206

8.4 Company promoters 207

8.5 Provisional contracts by public companies 209

8.6 Ultra vires contracts and outsider protection 209

8.7 unauthorised contracts and outsider protection 210

8.8 The company s share capital 212

8.9 The payment of dividends 219

8.10 Financial assistance for the acquisition of own shares 220

8.11 Companies taking charges over their shares 223

8.12 Shares and shareholders 223

8.13 Becoming a member of a company 227

8.14 Ceasing to be a member 228

8.15 Transfer of shares 228

8.16 Estoppel by share certificate 229

8.19 The directors 230

8.17 The register of members 230

8.18 The register of substantial shareholdings 230

8.20 Directors duties 236

8.21 Statutory enforcement of directors duties 244

8.22 Relief from liability 248

8.23 The company secretary 248

8.24 The enforcement of directors duties 249

Recommended further reading 256

Questions 256

9.1 The nature and classification of business property 259

9.2 Introduction to the English law of real property 259

9 Business property 259

Part Ⅳ BUSINESS ASSETS,BORROWING AND SECURITIES 259

9.3 Rights over the property of another 262

9.4 The reforms of 1925 262

9.5 Registered and unregistered conveyancing 263

9.6 The classification of estates and interest in land:unregistered and registered 264

9.7 Choses in possession 265

9.8 Choses in action 266

9.9 Intellectual property rights 268

9.10 Product design protection 287

9.11 Semiconductor chip design protection 291

Recommended further reading 292

Questions 292

10 Securities for loans 293

10.1 The nature of a security 293

10.2 Mortgages of land 293

10.3 Priority and protection of mortgagees 296

10.4 Protection of the mortgagor 298

10.5 Remedies of the mortgagee 300

10.6 Mortgages of registered stocks and shares 304

10.7 Miscellaneous securities 306

10.8 Mortgages of life insurance polices 307

10.9 Goods as a security 310

10.10 Securities created by registered companies 311

10.11 Charges over company assets 311

10.12 The registration of charges 314

10.13 Disadvantages of floating charges 318

10.14 Duty of charge holder with regard to authority of company and offices 320

10.15 Guarantees and indemnities 320

10.16 Property covered by a retention of title clause 328

10.17 Liens 331

Recommended further reading 332

Questions 332

Part Ⅴ BUSINESS CONTRACTS 337

11 The law of agency 337

11.1 Definition of agency 337

11.2 Types of agent 337

11.3 The authority of the agent 338

11.4 The rights and duties of the agent 342

11.5 The rights of the agent against the principal 346

11.6 Agents liability to the third party 348

11.7 Termination of agency 350

11.8 Commercial agents 351

Recommended further reading 354

Questions 354

12 Contracts of employment 355

12.1 The contract for service and the contract for services 355

12.2 Vicarious liability 358

12.3 Continuity of employment 359

12.4 Formation of the contract of employment 360

12.5 Restraint of trade clauses 392

12.6 Fixed-term and performance contracts 392

Recommended further reading 394

Questions 394

13 Contracts for the sale and supply of goods 395

13.1 Contracts for the sale of goods 395

13.2 The form of the contract 396

13.3 The implied terms in a contract for the sale of goods 396

13.4 Waiver of breach of condition 404

13.5 Exclusion of terms implied by the Sale of Goods Act 1979 405

13.6 Similar protection for other contracts under which goods pass 406

13.7 The passing of the property and the passing of the risk 406

13.8 Sale by a non-owner 413

13.9 Performance of the contract 419

13.10 Rights of the unpaid seller against the goods 421

13.11 Actions for breach of the contract 424

13.12 Contracts for the supply of goods 425

13.13 Goods supplied under hire-purchase and conditional sale agreements 429

13.14 Discrimination in respect of services,goods and facilities 429

Questions 430

Recommended further reading 430

14 Consumer credit agreements 435

Part Ⅵ PAYMENT METHODS 435

14.1 Agreements within the Act 436

14.2 Licensing and seeking business 438

14.3 Form and contents of the agreement 439

14.4 Cancellation 440

14.5 Dealer as creditor s agent 440

14.6 Creditors liability for suppliers defaults 441

14.7 Misusing credit facilities 441

14.10 Extortionate credit bargains 442

14.8 Early and late payment by the debtor 442

14.9 Default and non-default notices 442

14.11 Death of debtor 443

14.12 Hire-purchase and other instalment sales 443

14.13 Protection of the private purchaser of a motor vehicle 448

14.14 Conditional sale and credit sale agreements 448

Recommended further reading 448

Questions 448

15.2 Bills of exchange and cheques contrasted 450

15 Bills of exchange,cheques,credit and debit cards 450

15.1 Bills of exchange and cheques in settlement of debts 450

15.3 The essentials of a bill of exchange 451

15.4 Capacity and authority of the parties 454

15.5 Acceptance of a bill of exchange 455

15.6 Payment of a bill of exchange 456

15.7 Inchoate instruments 456

15.8 Negotiation of a bill of exchange or cheque 457

15.9 The consideration for a bill 458

15.10 The holders of a bill 458

15.11 The cash equivalence of the bill of exchange or cheque 460

15.12 Discharge of a bill of exchange or cheque 461

15.13 The banker-customer relationship 463

15.14 The duties owed by the bank to the customer 463

15.15 The customer s duties to the bank 468

15.16 Bankers protection:the paying and the collecting banker 469

15.17 The protection of the paying banker 470

15.18 The protection of the collecting banker 470

15.19 Analogous instruments and bankers drafts 472

15.20 The collecting banker as holder in due course 473

15.21 Electronic funds transfer(EFT) 474

Recommended further reading 476

Questions 476

Part Ⅶ CONSUMER PROTECTION 479

16 Consumer protection 479

16.1 Trade descriptions 479

16.2 False trade descriptions 479

16.3 False statements as to services,accommodation and facilities 482

16.4 Defences 484

16.5 False or misleading indications as to price 487

16.6 Product liability 489

16.7 The Sale of Goods Act 1979 490

16.8 Tortious liability:negligence 490

16.9 The Consumer Protection Act 1987,Part Ⅰ 490

16.10 The Consumer Protection Act 1987,Part Ⅱ 493

16.11 Collateral contract of guarantee 497

16.12 Contracts for unsolicited goods and services 498

16.13 Cancellable agreements for goods and services 498

16.14 Unfair terms in consumer contracts 499

Questions 502

Recommended further reading 502

17 Competition law 503

17.1 Aims of competition law 503

17.2 UK and EC competition law 503

17.3 The Fair Trading Act 1973 503

17.4 References to the Consumer Protection Advisory Committee(CPAC) 504

17.5 Control of rogue dealers 504

17.6 Voluntary codes of practice 505

17.7 Monopolies 505

17.8 Mergers 506

17.9 Agreements and so on preventing,restricting or distorting competition 507

17.10 Abuse of dominant position 511

17.11 Investigation and enforcement of Chapter Ⅰ and Chapter Ⅱ prohibitions 512

17.12 Basis of EC competition law 514

17.13 Determination of infringement at Community level 514

17.14 Determination at national level 515

17.15 Extraterritorial extension of rules 516

17.16 Restrictive practices contrary to Article 85(1) 516

17.17 Abuse of a dominant position:Article 86 523

Recommended further reading 528

Questions 529

Part Ⅷ PERSONAL AND CORPORATE INSOLVENCY 533

18 Personal insolvency 533

18.1 Individual voluntary arrangements(IVAs) 533

18.2 Bankruptcy 536

Recommended further reading 549

Questions 549

19 Corporate insolvency 550

19.1 Receivership 550

19.2 Administration orders 557

19.3 Company voluntary arrangements(CVAs) 563

19.4 Company winding up 565

19.5 Criminal liability arising from insolvency 580

19.6 Disqualification of directors arising from insolvent liquidation 580

19.7 Dissolution of a defunct company 580

19.8 Power of court to declare dissolution void 581

Recommended further reading 581

Questions 581

Index 583