Statutes
| Published date | 01 April 1944 |
| Date | 01 April 1944 |
| DOI | http://doi.org/10.1111/j.1468-2230.1944.tb00970.x |
| Author | G. L. Williams |
66
MODERN
LAW
REVIEW
April, 1944
estopped from denying that
it
has received payment for the shares.
Bona
fide
purchasers of the shares should
be
protected against calls, but the
original allottee should remain liable.
(d)
None of these measures would
be
of much avail, unless legislation
was passed
to
exclude the possibility of evading the law by means of
set-off and of accord and satisfaction. There
is
nothing
to
choose between
an agreement by which
a
company allots shares for
a
non-monetary
consideration and an agreement by which
it
either settles
a
claim for calls
in cash by accepting
a
non-monetary asset in satisfaction,= or agrees to
set off@
its
own
claim for calls in cash against
a
shareholder’s claim arising
from
a
sale of assets to the company. Set-off,
as
well as accord and satis-
faction
as
between shareholder and company should
be
treated
as
valid
only
if
they comply with the requirements laid down for contracts for the
allotment of shares for
a
consideration other than cash.
’
(e)
It
goes without saying that
the
tentative suggestions made in
this article will
be
ineffective unless
it
is
possible to solve the nominee
problem. The basis of the creditors’ security
is
either the paid-up capital
or the personal credit of those shareholders who are still liable to pay calls.
It
is with
a
view to giving effect to this basis of the company’s credit that
the above suggestions have been made.
If
the creditor is kept in ignorance
as to who the real shareholders are,
if,
their names are concealed behind
a
protective screen of nominee companies, measures such
as
those suggested
above are useless.
It
is not the object of this paper to deal with the nominee
problem. Whether the rule of
sect.
IOI
that “trusts must
be
kept
off
the register” should
be
repealed, how far such
a
repeal would contribute
to the solution of the nominee problem, or whether, for the sake of facili-
tating transfers, sect.
IOI
should remain as it is, but
a
special register of
beneficial ownership
be
introduced-these are weighty and complicated
questions beyond the scope of this article.
0.
KAHN-FREUND.
STATUTES
The
Law
Reform
(Frustrated
Contracts)
Act,
1943
This Act makes two, and probably three, important changes in
the
common law relating to frustration. The three rules of the common law
that are affected by it may
be
stated
as
follows-
(i)
The rule in
AppZeby
v.
Myers
(1867).
L.R.
L
C.P.
651.
Where
a
party enters into an entire contract and performs in part but fails to coni-
plete, otherwise than as
a
result of
a
breach
of
contract by the other party,
he can recover nothing.
(ii) The rule in the
Fibrosa
case,
[1()43]
A.C.
32.
Where money is paid
in advance under
a
contract, and the payer fails to receive the whole of the
benefit expected by him‘ under the contract (this failure not being due to
his own breach of contract), the money may be recovered back in quasi-
contract
as
money paid
on
a
consideration that has wholly failed.
It
is
immaterial that the payee has suffered
a
detriment in performing his part,
and he cannot cleduct any part of the
sum
for expenses
so
incurred.
(iii) The rulc
in
lk’lcincrtp
v.
llicgkes
(IY~I),
L.R.
G
C.P.
78.
Money
‘9
Such
an agreement is
valid
under the present law
:
Lavoqrrs
v.
Beauchewin.
See
above,
note
52.
[18g7]
A.C.
358.
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