2015年ACCA《公司法与商法》真题及答案

Question:

(a) In relation to the English legal system, explain the meaning of:

(i) criminal law;

(ii) civil law.

(b) Explain the hierarchy of courts dealing with criminal law.

Answer:

(a) (i) Criminal law relates to conduct which the State considers with disapproval and which it seeks to control. Criminal law involves the enforcement of particular forms of behaviour, and the State, as the representative of society, acts positively to ensure compliance. Thus, criminal cases are brought by the State in the name of the Crown and cases are reported in the form of Regina v … (Regina is simply Latin for ‘queen’ and case references are usually abbreviated to R v ...). In criminal law the prosecutor prosecutes a defendant (or ‘the accused’) and is required to prove that the defendant is guilty beyond reasonable doubt. The Companies Act (CA) 006 sets out many potential criminal offences, which may be committed by either the company itself, or its officers or other individuals. An example of this which may be cited is s.993, which relates to the criminal offence of fraudulent trading and applies to any person, not just directors or members, who is knowingly a party to the carrying on of a business with the intent to defraud creditors. The potential penalty on conviction is imprisonment for a maximum period of 10 years, or a fine or both.

(ii) Civil law, on the other hand, is a form of private law and involves the relationships between individual citizens. It is the legal mechanism through which individuals can assert claims against others and have those rights adjudicated and enforced. The purpose of civil law is to settle disputes between individuals and to provide remedies; it is not concerned with punishment as such. The role of the State in relation to civil law is to establish the general framework of legal rules and to provide the legal institutions to operate those rights, but the activation of the civil law is strictly a matter for the individuals concerned.

Contract, tort and property law are generally aspects of civil law.

Civil cases are referred to by the names of the parties involved in the dispute, for example, Smith v Jones. In civil law, a claimant sues (or ‘brings a claim against’) a defendant and the degree of proof is on the balance of probabilities. In relation to the CA 006, the duties owed to companies by directors set out in ss.171–177 may be cited as examples of civil liability, and directors in breach are liable to recompense the company for the consequences of their failure to comply with those duties, as is set out in s.178.

In distinguishing between criminal and civil actions, it has to be remembered that the same event may give rise to both. For example, where the driver of a car injures someone through their reckless driving, they will be liable to be prosecuted under the Road Traffic legislation, but at the same time, they will also be responsible to the injured party in the civil law relating to the tort of negligence. Similarly, a director may fall foul of both the criminal regulation of fraudulent trading (s.993 CA 006) as well as breaching their duty to the company under one of the provisions of ss.171–177 CA 006.

(b) The essential criminal trial courts are the magistrates’ courts and Crown Courts. In serious offences, known as indictable offences, the defendant is tried by a judge and jury in a Crown Court. For less serious offences, known as summary offences, the defendant is tried by magistrates; and for ‘either way’ offences, the defendant can be tried by magistrates if they agree but the defendant may elect for jury trial.

Criminal appeals from the magistrates go to the Crown Court or to the Queen’s Bench Division (QBD) Divisional Court ‘by way of case stated’ on a point of law or that the magistrates went beyond their proper powers.

Further appeal is to the Court of Appeal (Criminal Division) and then to the Supreme Court on a significant point of law.

Question：

In relation to the law of contract,explain the rules relating to：

(a)acceptance of an offer;

(b)revocation of an offer.

Answer：

This question requires an explanation of the rules relating to the acceptance and revocation of offers in contract law.

(a)Acceptance is necessary for the formation of a contract. Once the offeree has accepted the terms offered, a contract comes into effect. Both parties are bound： the offeror can no longer withdraw their offer, nor can the offeree withdraw their acceptance. The rules relating to acceptance are：

(i)Acceptance must correspond with the terms of the offer. Thus, the offeree must not seek to introduce new contractual terms into their acceptance (Neale v Merrett (1930)).

(ii)A counter-offer does not constitute acceptance (Hyde v Wrench (1840)). Analogously, a conditional acceptance cannot create a contractual relationship (Winn v Bull (1877)).

(iii)Acceptance may be in the form of express words, either oral or written. Alternatively, acceptance may be implied from conduct (Brogden v Metropolitan Railway Co (1877)).

(iv)Generally, acceptance must be communicated to the offeror. Consequently, silence cannot amount to acceptance (Felthouse v Bindley (1863)).

(v)Communication of acceptance is not necessary, however, where the offeror has waived the right to receive communication. Thus in unilateral contracts, such as Carlill v Carbolic Smoke Ball Co (1893), acceptance occurred when the offeree performed the required act. Thus, in the Carlill case, Mrs Carlill did not have to inform the Smoke Ball Co that she had used their treatment.

(vi)Where acceptance is communicated through the postal service, then it is complete as soon as the letter, properly addressed and stamped, is posted. The contract is concluded even if the letter subsequently fails to reach the offeror(Adams v Lindsell (1818)). However, the postal rule will only apply where it is in the contemplation of the parties that the post will be used as the means of acceptance. If the parties have negotiated either face to face, in a shop, for example, or over the telephone, then it might not be reasonable for the offeree to use the post as a means of communicating their acceptance and they would not gain the benefit of the postal rule.

The postal rule applies equally to telegrams (Byrne v Van Tienhoven (1880)). It does not apply, however, when means of instantaneous communication are used (Entores v Miles Far East Corp (1955)).

In order to expressly exclude the operation of the postal rule, the offeror can insist that acceptance is only to be effective on receipt (Holwell Securities v Hughes(1974)). The offeror can also require that acceptance be communicated in a particular manner. Where the offeror does not insist that acceptance can only be made in the stated manner, then acceptance is effective if it is communicated in a way no less advantageous to the offeror (Yates Building Co v J Pulleyn& Sons (1975)).

(b)Revocation is the technical term for the cancellation of an offer and occurs when the offeror withdraws their offer. The rules relating to revocation are：

(i)An offer may be revoked at any time before acceptance. However, once revocation has occurred, it is no longer open to the offeree to accept the original offer (Routledge v Grant (1828)).

(ii)Revocation is not effective until it is actually received by the offeree. This means that the offeror must make sure that the offeree is made aware of the withdrawal of the offer, otherwise it might still be open to the offeree to accept the offer(Byrne v Tienhoven (1880)).

(iii)Communication of revocation may be made through a reliable third party. Where the offeree finds out about the withdrawal of the offer from a reliable third party, the revocation is effective and the offeree can no longer seek to accept the original offer (Dickinson v Dodds (1876)).

(iv)A promise to keep an offer open is only binding where there is a separate contract to that effect. Such an agreement is known as an option contract, and it must be supported by separate consideration for the promise to keep the offer open.

(v)In relation to unilateral contracts, i.e. a contract where one party promises something in return for some action on the part of another party, revocation is not permissible once the offeree has started performing the task requested (Errington v Errington & Woods (1952).