Réunion technique annuelle VCU de la zone opérationnelle Ouest : Bamako, 13-17 novembre 1995
In the Companies Acts, unless the context otherwise requires—
“company” means a company formed and registered under this Act, that is—
a company so formed and registered after the commencement of this Part, or
a company that immediately before the commencement of this Part— was formed and registered under the Companies Act 1985 (c. 6) or the Companies (Northern Ireland) Order 1986 (S.I. 1986/1032 (N.I. 6)), or was an existing company for the purposes of that Act or that Order, (which is to be treated on commencement as if formed and registered under this Act).
Certain provisions of the Companies Acts apply to—
companies registered, but not formed, under this Act (see Chapter 1 of Part 33), and
bodies incorporated in the United Kingdom but not registered under this Act (see Chapter 2 of that Part).
For provisions applying to companies incorporated outside the United Kingdom, see Part 34 (overseas companies).
In this Act “the Companies Acts” means—
the company law provisions of this Act,
Part 2 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c. 27) (community interest companies), and
the provisions of the Companies Act 1985 (c. 6) and the Companies Consolidation (Consequential Provisions) Act 1985 (c. 9) that remain in force.
The company law provisions of this Act are—
the provisions of Parts 1 to 39 of this Act, and
the provisions of Parts 45 to 47 of this Act so far as they apply for the purposes of those Parts.
A company is a “limited company” if the liability of its members is limited by its constitution. It may be limited by shares or limited by guarantee.
If their liability is limited to the amount, if any, unpaid on the shares held by them, the company is “limited by shares”.
If their liability is limited to such amount as the members undertake to contribute to the assets of the company in the event of its being wound up, the company is “limited by guarantee”.
If there is no limit on the liability of its members, the company is an “unlimited company”.
A “private company” is any company that is not a public company.
A “public company” is a company limited by shares or limited by guarantee and having a share capital—
whose certificate of incorporation states that it is a public company, and
in relation to which the requirements of this Act, or the former Companies Acts, as to registration or re-registration as a public company have been complied with on or after the relevant date.
For the purposes of subsection (2)(b) the relevant date is—
in relation to registration or re-registration in Great Britain, 22nd December 1980;
in relation to registration or re-registration in Northern Ireland, 1st July 1983.
For the two major differences between private and public companies, see Part 20.
A company cannot be formed as, or become, a company limited by guarantee with a share capital.
Provision to this effect has been in force—
in Great Britain since 22nd December 1980, and
in Northern Ireland since 1st July 1983.
Any provision in the constitution of a company limited by guarantee that purports to divide the company’s undertaking into shares or interests is a provision for a share capital. This applies whether or not the nominal value or number of the shares or interests is specified by the provision.
In accordance with Part 2 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c. 27)—
a company limited by shares or a company limited by guarantee and not having a share capital may be formed as or become a community interest company, and
a company limited by guarantee and having a share capital may become a community interest company.
The other provisions of the Companies Acts have effect subject to that Part.
A company is formed under this Act by one or more persons—
subscribing their names to a memorandum of association (see section 8), and
complying with the requirements of this Act as to registration (see sections 9 to 13).
A company may not be so formed for an unlawful purpose.
A memorandum of association is a memorandum stating that the subscribers—
wish to form a company under this Act, and
agree to become members of the company and, in the case of a company that is to have a share capital, to take at least one share each.
The memorandum must be in the prescribed form and must be authenticated by each subscriber.
The memorandum of association must be delivered to the registrar together with an application for registration of the company, the documents required by this section and a statement of compliance.
The application for registration must state—
the company’s proposed name,
whether the company’s registered office is to be situated in England and Wales (or in Wales), in Scotland or in Northern Ireland,
whether the liability of the members of the company is to be limited, and if so whether it is to be limited by shares or by guarantee, and
whether the company is to be a private or a public company.
If the application is delivered by a person as agent for the subscribers to the memorandum of association, it must state his name and address.
The application must contain—
in the case of a company that is to have a share capital, a statement of capital and initial shareholdings (see section 10);
in the case of a company that is to be limited by guarantee, a statement of guarantee (see section 11);
a statement of the company’s proposed officers (see section 12).
The application must also contain—
a statement of the intended address of the company’s registered office; and
a copy of any proposed articles of association (to the extent that these are not supplied by the default application of model articles: see section 20).
The application must be delivered—
to the registrar of companies for England and Wales, if the registered office of the company is to be situated in England and Wales (or in Wales);
to the registrar of companies for Scotland, if the registered office of the company is to be situated in Scotland;
to the registrar of companies for Northern Ireland, if the registered office of the company is to be situated in Northern Ireland.
The statement of capital and initial shareholdings required to be delivered in the case of a company that is to have a share capital must comply with this section.
It must state—
the total number of shares of the company to be taken on formation by the subscribers to the memorandum of association,
the aggregate nominal value of those shares,
for each class of shares—
prescribed particulars of the rights attached to the shares,
the total number of shares of that class, and
the aggregate nominal value of shares of that class, and
the amount to be paid up and the amount (if any) to be unpaid on each share (whether on account of the nominal value of the share or by way of premium).
It must contain such information as may be prescribed for the purpose of identifying the subscribers to the memorandum of association.
It must state, with respect to each subscriber to the memorandum—
the number, nominal value (of each share) and class of shares to be taken by him on formation, and
the amount to be paid up and the amount (if any) to be unpaid on each share (whether on account of the nominal value of the share or by way of premium).
Where a subscriber to the memorandum is to take shares of more than one class, the information required under subsection (4)(a) is required for each class.
The statement of guarantee required to be delivered in the case of a company that is to be limited by guarantee must comply with this section.
It must contain such information as may be prescribed for the purpose of identifying the subscribers to the memorandum of association.
It must state that each member undertakes that, if the company is wound up while he is a member, or within one year after he ceases to be a member, he will contribute to the assets of the company such amount as may be required for— not exceeding a specified amount.
payment of the debts and liabilities of the company contracted before he ceases to be a member,
payment of the costs, charges and expenses of winding up, and
adjustment of the rights of the contributories among themselves,
The statement of the company’s proposed officers required to be delivered to the registrar must contain the required particulars of—
the person who is, or persons who are, to be the first director or directors of the company;
in the case of a company that is to be a private company, any person who is (or any persons who are) to be the first secretary (or joint secretaries) of the company;
in the case of a company that is to be a public company, the person who is (or the persons who are) to be the first secretary (or joint secretaries) of the company.
The required particulars are the particulars that will be required to be stated—
in the case of a director, in the company’s register of directors and register of directors' residential addresses (see sections 162 to 166);
in the case of a secretary, in the company’s register of secretaries (see sections 277 to 279).
The statement must also contain a consent by each of the persons named as a director, as secretary or as one of joint secretaries, to act in the relevant capacity. If all the partners in a firm are to be joint secretaries, consent may be given by one partner on behalf of all of them.
The statement of compliance required to be delivered to the registrar is a statement that the requirements of this Act as to registration have been complied with.
The registrar may accept the statement of compliance as sufficient evidence of compliance.
If the registrar is satisfied that the requirements of this Act as to registration are complied with, he shall register the documents delivered to him.
On the registration of a company, the registrar of companies shall give a certificate that the company is incorporated.
The certificate must state—
the name and registered number of the company,
the date of its incorporation,
whether it is a limited or unlimited company, and if it is limited whether it is limited by shares or limited by guarantee,
whether it is a private or a public company, and
whether the company’s registered office is situated in England and Wales (or in Wales), in Scotland or in Northern Ireland.
The certificate must be signed by the registrar or authenticated by the registrar’s official seal.
The certificate is conclusive evidence that the requirements of this Act as to registration have been complied with and that the company is duly registered under this Act.
The registration of a company has the following effects as from the date of incorporation.
The subscribers to the memorandum, together with such other persons as may from time to time become members of the company, are a body corporate by the name stated in the certificate of incorporation.
That body corporate is capable of exercising all the functions of an incorporated company.
The status and registered office of the company are as stated in, or in connection with, the application for registration.
In the case of a company having a share capital, the subscribers to the memorandum become holders of the shares specified in the statement of capital and initial shareholdings.
The persons named in the statement of proposed officers— are deemed to have been appointed to that office.
as director, or
as secretary or joint secretary of the company,
Unless the context otherwise requires, references in the Companies Acts to a company’s constitution include—
the company’s articles, and
any resolutions and agreements to which Chapter 3 applies (see section 29).
A company must have articles of association prescribing regulations for the company.
Unless it is a company to which model articles apply by virtue of section 20 (default application of model articles in case of limited company), it must register articles of association.
Articles of association registered by a company must—
be contained in a single document, and
be divided into paragraphs numbered consecutively.
References in the Companies Acts to a company’s “articles” are to its articles of association.
The Secretary of State may by regulations prescribe model articles of association for companies.
Different model articles may be prescribed for different descriptions of company.
A company may adopt all or any of the provisions of model articles.
Any amendment of model articles by regulations under this section does not affect a company registered before the amendment takes effect.
“Amendment” here includes addition, alteration or repeal.
Regulations under this section are subject to negative resolution procedure.
On the formation of a limited company— the relevant model articles (so far as applicable) form part of the company’s articles in the same manner and to the same extent as if articles in the form of those articles had been duly registered.
if articles are not registered, or
if articles are registered, in so far as they do not exclude or modify the relevant model articles,
The “relevant model articles” means the model articles prescribed for a company of that description as in force at the date on which the company is registered.
A company may amend its articles by special resolution.
In the case of a company that is a charity, this is subject to—
in England and Wales, section 64 of the Charities Act 1993 (c. 10);
in Northern Ireland, Article 9 of the Charities (Northern Ireland) Order 1987 (S.I. 1987/2048 (N.I. 19)).
In the case of a company that is registered in the Scottish Charity Register, this is subject to—
section 112 of the Companies Act 1989 (c. 40), and
section 16 of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10).
A company’s articles may contain provision (“provision for entrenchment”) to the effect that specified provisions of the articles may be amended or repealed only if conditions are met, or procedures are complied with, that are more restrictive than those applicable in the case of a special resolution.
Provision for entrenchment may only be made—
in the company’s articles on formation, or
by an amendment of the company’s articles agreed to by all the members of the company.
Provision for entrenchment does not prevent amendment of the company’s articles—
by agreement of all the members of the company, or
by order of a court or other authority having power to alter the company’s articles.
Nothing in this section affects any power of a court or other authority to alter a company’s articles.
Where a company’s articles— the company must give notice of that fact to the registrar.
on formation contain provision for entrenchment,
are amended so as to include such provision, or
are altered by order of a court or other authority so as to restrict or exclude the power of the company to amend its articles,
Where a company’s articles— the company must give notice of that fact to the registrar.
are amended so as to remove provision for entrenchment, or
are altered by order of a court or other authority—
so as to remove such provision, or
so as to remove any other restriction on, or any exclusion of, the power of the company to amend its articles,
This section applies where a company’s articles are subject—
to provision for entrenchment, or
to an order of a court or other authority restricting or excluding the company’s power to amend the articles.
If the company— the company must deliver with that document a statement of compliance.
amends its articles, and
is required to send to the registrar a document making or evidencing the amendment,
The statement of compliance required is a statement certifying that the amendment has been made in accordance with the company’s articles and, where relevant, any applicable order of a court or other authority.
The registrar may rely on the statement of compliance as sufficient evidence of the matters stated in it.
A member of a company is not bound by an alteration to its articles after the date on which he became a member, if and so far as the alteration—
requires him to take or subscribe for more shares than the number held by him at the date on which the alteration is made, or
in any way increases his liability as at that date to contribute to the company’s share capital or otherwise to pay money to the company.
Subsection (1) does not apply in a case where the member agrees in writing, either before or after the alteration is made, to be bound by the alteration.
Where a company amends its articles it must send to the registrar a copy of the articles as amended not later than 15 days after the amendment takes effect.
This section does not require a company to set out in its articles any provisions of model articles that—
are applied by the articles, or
apply by virtue of section 20 (default application of model articles).
If a company fails to comply with this section an offence is committed by—
the company, and
every officer of the company who is in default.
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.
If it appears to the registrar that a company has failed to comply with any enactment requiring it— the registrar may give notice to the company requiring it to comply.
to send to the registrar a document making or evidencing an alteration in the company’s articles, or
to send to the registrar a copy of the company’s articles as amended,
The notice must—
state the date on which it is issued, and
require the company to comply within 28 days from that date.
If the company complies with the notice within the specified time, no criminal proceedings may be brought in respect of the failure to comply with the enactment mentioned in subsection (1).
If the company does not comply with the notice within the specified time, it is liable to a civil penalty of £200. This is in addition to any liability to criminal proceedings in respect of the failure mentioned in subsection (1).
The penalty may be recovered by the registrar and is to be paid into the Consolidated Fund.
Provisions that immediately before the commencement of this Part were contained in a company’s memorandum but are not provisions of the kind mentioned in section 8 (provisions of new-style memorandum) are to be treated after the commencement of this Part as provisions of the company’s articles.
This applies not only to substantive provisions but also to provision for entrenchment (as defined in section 22).
The provisions of this Part about provision for entrenchment apply to such provision as they apply to provision made on the company’s formation, except that the duty under section 23(1)(a) to give notice to the registrar does not apply.
This Chapter applies to—
any special resolution;
any resolution or agreement agreed to by all the members of a company that, if not so agreed to, would not have been effective for its purpose unless passed as a special resolution;
any resolution or agreement agreed to by all the members of a class of shareholders that, if not so agreed to, would not have been effective for its purpose unless passed by some particular majority or otherwise in some particular manner;
any resolution or agreement that effectively binds all members of a class of shareholders though not agreed to by all those members;
any other resolution or agreement to which this Chapter applies by virtue of any enactment.
References in subsection (1) to a member of a company, or of a class of members of a company, do not include the company itself where it is such a member by virtue only of its holding shares as treasury shares.
A copy of every resolution or agreement to which this Chapter applies, or (in the case of a resolution or agreement that is not in writing) a written memorandum setting out its terms, must be forwarded to the registrar within 15 days after it is passed or made.
If a company fails to comply with this section, an offence is committed by—
the company, and
every officer of it who is in default.
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.
For the purposes of this section, a liquidator of the company is treated as an officer of it.
Unless a company’s articles specifically restrict the objects of the company, its objects are unrestricted.
Where a company amends its articles so as to add, remove or alter a statement of the company’s objects—
it must give notice to the registrar,
on receipt of the notice, the registrar shall register it, and
the amendment is not effective until entry of that notice on the register.
Any such amendment does not affect any rights or obligations of the company or render defective any legal proceedings by or against it.
In the case of a company that is a charity, the provisions of this section have effect subject to—
in England and Wales, section 64 of the Charities Act 1993 (c. 10);
in Northern Ireland, Article 9 of the Charities (Northern Ireland) Order 1987 (S.I. 1987/2048 (N.I. 19)).
In the case of a company that is entered in the Scottish Charity Register, the provisions of this section have effect subject to the provisions of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10).
A company must, on request by any member, send to him the following documents—
an up-to-date copy of the company’s articles;
a copy of any resolution or agreement relating to the company to which Chapter 3 applies (resolutions and agreements affecting a company’s constitution) and that is for the time being in force;
a copy of any document required to be sent to the registrar under—
section 34(2) (notice where company’s constitution altered by enactment), or
section 35(2)(a) (notice where order of court or other authority alters company’s constitution);
a copy of any court order under section 899 (order sanctioning compromise or arrangement) or section 900 (order facilitating reconstruction or amalgamation);
a copy of any court order under section 996 (protection of members against unfair prejudice: powers of the court) that alters the company’s constitution;
a copy of the company’s current certificate of incorporation, and of any past certificates of incorporation;
in the case of a company with a share capital, a current statement of capital;
in the case of a company limited by guarantee, a copy of the statement of guarantee.
The statement of capital required by subsection (1)(g) is a statement of—
the total number of shares of the company,
the aggregate nominal value of those shares,
for each class of shares—
prescribed particulars of the rights attached to the shares,
the total number of shares of that class, and
the aggregate nominal value of shares of that class, and
the amount paid up and the amount (if any) unpaid on each share (whether on account of the nominal value of the share or by way of premium).
If a company makes default in complying with this section, an offence is committed by every officer of the company who is in default.
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
The provisions of a company’s constitution bind the company and its members to the same extent as if there were covenants on the part of the company and of each member to observe those provisions.
Money payable by a member to the company under its constitution is a debt due from him to the company. In England and Wales and Northern Ireland it is of the nature of an ordinary contract debt.
This section applies where a company’s constitution is altered by an enactment, other than an enactment amending the general law.
The company must give notice of the alteration to the registrar, specifying the enactment, not later than 15 days after the enactment comes into force. In the case of a special enactment the notice must be accompanied by a copy of the enactment.
If the enactment amends— the notice must be accompanied by a copy of the company’s articles, or the resolution or agreement in question, as amended.
the company’s articles, or
a resolution or agreement to which Chapter 3 applies (resolutions and agreements affecting a company’s constitution),
A “special enactment” means an enactment that is not a public general enactment, and includes—
an Act for confirming a provisional order,
any provision of a public general Act in relation to the passing of which any of the standing orders of the House of Lords or the House of Commons relating to Private Business applied, or
any enactment to the extent that it is incorporated in or applied for the purposes of a special enactment.
If a company fails to comply with this section an offence is committed by—
the company, and
every officer of the company who is in default.
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.
Where a company’s constitution is altered by an order of a court or other authority, the company must give notice to the registrar of the alteration not later than 15 days after the alteration takes effect.
The notice must be accompanied by—
a copy of the order, and
if the order amends— a copy of the company’s articles, or the resolution or agreement in question, as amended.
the company’s articles, or
a resolution or agreement to which Chapter 3 applies (resolutions and agreements affecting the company’s constitution),
If a company fails to comply with this section an offence is committed by—
the company, and
every officer of the company who is in default.
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale and, for continued contravention, a daily default fine not exceeding one-tenth of level 3 on the standard scale.
This section does not apply where provision is made by another enactment for the delivery to the registrar of a copy of the order in question.
Every copy of a company’s articles issued by the company must be accompanied by—
a copy of any resolution or agreement relating to the company to which Chapter 3 applies (resolutions and agreements affecting a company’s constitution),
where the company has been required to give notice to the registrar under section 34(2) (notice where company’s constitution altered by enactment), a statement that the enactment in question alters the effect of the company’s constitution,
where the company’s constitution is altered by a special enactment (see section 34(4)), a copy of the enactment, and
a copy of any order required to be sent to the registrar under section 35(2)(a) (order of court or other authority altering company’s constitution).
This does not require the articles to be accompanied by a copy of a document or by a statement if—
the effect of the resolution, agreement, enactment or order (as the case may be) on the company’s constitution has been incorporated into the articles by amendment, or
the resolution, agreement, enactment or order (as the case may be) is not for the time being in force.
If the company fails to comply with this section, an offence is committed by every officer of the company who is in default.
A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale for each occasion on which copies are issued, or, as the case may be, requested.
For the purposes of this section, a liquidator of the company is treated as an officer of it.
In the case of a company limited by guarantee and not having a share capital any provision in the company’s articles, or in any resolution of the company, purporting to give a person a right to participate in the divisible profits of the company otherwise than as a member is void.
Any enactment or rule of law applicable to companies formed by two or more persons or having two or more members applies with any necessary modification in relation to a company formed by one person or having only one person as a member.
The validity of an act done by a company shall not be called into question on the ground of lack of capacity by reason of anything in the company’s constitution.
This section has effect subject to section 42 (companies that are charities).
In favour of a person dealing with a company in good faith, the power of the directors to bind the company, or authorise others to do so, is deemed to be free of any limitation under the company’s constitution.
For this purpose—
a person “deals with” a company if he is a party to any transaction or other act to which the company is a party,
a person dealing with a company—
is not bound to enquire as to any limitation on the powers of the directors to bind the company or authorise others to do so,
is presumed to have acted in good faith unless the contrary is proved, and
is not to be regarded as acting in bad faith by reason only of his knowing that an act is beyond the powers of the directors under the company’s constitution.
The references above to limitations on the directors' powers under the company’s constitution include limitations deriving—
from a resolution of the company or of any class of shareholders, or
from any agreement between the members of the company or of any class of shareholders.
This section does not affect any right of a member of the company to bring proceedings to restrain the doing of an action that is beyond the powers of the directors. But no such proceedings lie in respect of an act to be done in fulfilment of a legal obligation arising from a previous act of the company.
This section does not affect any liability incurred by the directors, or any other person, by reason of the directors' exceeding their powers.
This section has effect subject to— section 41 (transactions with directors or their associates), and section 42 (companies that are charities).
This section applies to a transaction if or to the extent that its validity depends on section 40 (power of directors deemed to be free of limitations under company’s constitution in favour of person dealing with company in good faith). Nothing in this section shall be read as excluding the operation of any other enactment or rule of law by virtue of which the transaction may be called in question or any liability to the company may arise.
Where— the transaction is voidable at the instance of the company.
a company enters into such a transaction, and
the parties to the transaction include—
a director of the company or of its holding company, or
a person connected with any such director,
Whether or not it is avoided, any such party to the transaction as is mentioned in subsection (2)(b)(i) or (ii), and any director of the company who authorised the transaction, is liable—
to account to the company for any gain he has made directly or indirectly by the transaction, and
to indemnify the company for any loss or damage resulting from the transaction.
The transaction ceases to be voidable if—
restitution of any money or other asset which was the subject matter of the transaction is no longer possible, or
the company is indemnified for any loss or damage resulting from the transaction, or
rights acquired bona fide for value and without actual notice of the directors' exceeding their powers by a person who is not party to the transaction would be affected by the avoidance, or
the transaction is affirmed by the company.
A person other than a director of the company is not liable under subsection (3) if he shows that at the time the transaction was entered into he did not know that the directors were exceeding their powers.
Nothing in the preceding provisions of this section affects the rights of any party to the transaction not within subsection (2)(b)(i) or (ii). But the court may, on the application of the company or any such party, make an order affirming, severing or setting aside the transaction on such terms as appear to the court to be just.
In this section—
“transaction” includes any act; and
the reference to a person connected with a director has the same meaning as in Part 10 (company directors).
Sections 39 and 40 (company’s capacity and power of directors to bind company) do not apply to the acts of a company that is a charity except in favour of a person who—
does not know at the time the act is done that the company is a charity, or
gives full consideration in money or money’s worth in relation to the act in question and does not know (as the case may be)—
that the act is not permitted by the company’s constitution, or
that the act is beyond the powers of the directors.
Where a company that is a charity purports to transfer or grant an interest in property, the fact that (as the case may be)— does not affect the title of a person who subsequently acquires the property or any interest in it for full consideration without actual notice of any such circumstances affecting the validity of the company’s act.
the act was not permitted by the company’s constitution, or
the directors in connection with the act exceeded any limitation on their powers under the company’s constitution,
In any proceedings arising out of subsection (1) or (2) the burden of proving— lies on the person asserting that fact.
that a person knew that the company was a charity, or
that a person knew that an act was not permitted by the company’s constitution or was beyond the powers of the directors,
In the case of a company that is a charity the affirmation of a transaction to which section 41 applies (transactions with directors or their associates) is ineffective without the prior written consent of—
in England and Wales, the Charity Commission;
in Northern Ireland, the Department for Social Development.
This section does not extend to Scotland (but see section 112 of the Companies Act 1989 (c. 40)).