Corporation and Mr Salomon Essay

公司人格确认原则确立案例Salomon v.Salomon _ Co. Ltd.
Salomon v Salomon & Co [1897] AC 22 was the seminal decision of the House of Lords relating to limited liability for the members of companies under English law.
Facts
Mr Salomon was a prosperous leather merchant, who decided to convert his business into limited company. He incorporated Salomon & Co Limited, with himself, his wife and his five children as directors. The company purchased the business as a going concern for £39,000 which was made up £20,000 in share capital, £10,000 in debentures and the remainder in cash.
The company ran into financial difficulties, and the debenture holders appointed a receiver. The receiver sold off all of the company's assets, which were sufficient to pay off the debenture holders, but nothing was left for the unsecured creditors.
The decision
At first instance and in the Court of Appeal, the courts felt that the whole transaction was a sham contrary to the intention of the Companies Act, and that the company was a sham and an alis, agent, trustee or nominee for Mr Salomon, and ordered him to indemnify the company's creditors against its trading debts.
But the House of Lords unanimously reversed the decision. They held that the company had been validly formed by the seven members taking shares, and that there was no requirement that they have a substantial interest in the undertaking, or involve themselves in its management. Nor did the law require that there be any balance of power between members under the company's constitution.
"Either the limited company was a legal entity or it was not. If it was, the business belonged to it and not to Mr Salomon. If it was not, there was no person and no thing to be an agent [of] at all; and it is impossible to say at the same time that there is a company and there is not."
The court also layed down the fundamental premise of limited liability under common law legal systems in relation to company law thus:
"The company is at law a different person altogether from the [shareholders] ...; and, though it may be that after incorporation the business is precisely the same as it was before, and the same persons are managers, and the same hands received the profits, the company is not in law the agent of the [shareholders] or trustee for them. Nor are the [shareholders], as members, liable in any shape or form, except to the extent and in the manner provided for by the Act."

1. Salomon 将其独资企业转化成有限公司的原因在于：扩大公司经营范围，并为家庭成员提供更好的参与机会。2. 公司的转化过程完全符合法定程序（公司法法典，1862年）。其中所涉及的程序及所制作的文件包括： A．一份与受托人签订的合同，合同的内容是将Salomon所经营的独资企业出售给拟订设立的公司。 B．公司章程大纲。该章程具备法定的签名，并进行了登记。章程中阐述到，本公司的成立使该合同得以生效。 C．公司章程细则。提出了公司运营的机制，例如： a．公司第一批董事将由多数公司章程大纲内签署的股份认购人指定。 b．被指定的董事有权行使所有股东大会中可以行使的权利，包括法律，章程中未作规定的权利。 c．明确的以债券方式借款的权利，但不得超过一定数额( ₤10，000 ). D. 七名公司成员。根据当时立法的要求，一个公司的成立要求至少有七名成员。所Salomon与他的妻子，以及其他五个儿女成为公司成员。3.

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