Law of partnerships – law notes for accounting and law students

  • It’s a very common type of business organisation/structure used – small businesses
  • Definition = the relationship that subsists between persons ( = minimum of 2 people) carrying on a business (= trade/profession) in common (= together) with a view to profit (intend to make profit).
  • Governed = by The Partnership Act, 1890; Limited Partnership Act, 1907; Agency Law; Contract Law (and see below)

Numbers = (2 → 20 (maybe 50 max)).

  •  Classes/Types of Partners =
  • General Partner: – active partner; day to day; Partnership Act = unlimited liability for debts; shares in profit.
  • Sleeping Partner/Silent Partner: – not active but has invested capital; not defined in Partnership Act = unlimited liability; profit share.
  • Limited Partner: – usually not involved but invested capital; shares in profit; liability for debts is limited only if he registers with Company Registration Office (CRO). This partner is limited as to what he can/can’t do.

[NOTE: CRO mainly deals with companies but it does deal with other business issues.  Don’t confuse with Company law]

All partners cannot be limited. The acxt requires at least one to be a general partner. 

Legal Relationship = • as regards third parties and the business, relationship based on the law of agency ( = acts of one partner binds the others) and as regards the relationship between the partners, it’s based on partnership agreement between the partners (i.e. contract law).  So it can be express, implied, written, verbal or inferred by conduct.

  • No legal requirement for contract in writing,
  • If no contract (or particular matters not in the partnership agreement), then terms of Partnership Act apply.
  • If written contract, known as partnership agreement/deed then it prevails.

 

Partnership Deed: – written agreement and contains info like

  • Name of firm (= group of partners) • address • type of business • commencement date • duration • bank details • auditors name • number of partners • meetings, voting, chairperson • profit & loss division • capital contribution • assets • death • bankruptcy • retiring sickness • dispute • non-compete • admission of new partners • rights of veto • arbitration

 

Duties of Partners: – found in Partnership Act and/or Deed.  Act says: –

~ Fiduciary duty: act in good faith for benefit of firm;

~ Duty to disclose: any matter that impacts on the partnership e.g. tell all financial info (Law v Law);

~ Duty to account: all benefits made in the business to go to partnership e.g. no secret profits (Bentley v Craven)

~ Duty not to compete: except with express consent of other partners

 

Rights of Partners: – found in Partnership Act and/or Deed. The Act says: –

~ Right to be treated with good faith and mutual confidence as partnership is based on a fiduciary relationship = trust;

~ Right to be involved in managing business;

~ Right to share in profit or contribute to losses.   Profits and losses do not necessarily have to be shared equally;

~ Right not to be expelled;

~ Right to veto admission of new partner(s);

~ Right to examine the books of accounts;

~ Right to be indemnified by other partners for liabilities properly incurred (i.e. in the course of business).

 

Authority & Liability of a Partner:

Authority to enter into Contracts comes from Law of Agency.  Actual or implied/apparent/ostensible authority. As the meaning of the latter suggests;

If third party believes the partner that they were dealing with had the authority, then, partnership bound e.g. assumption that a garage sells cars Mercantile Credit v Garrod

Liability of Partners =

  • In Contract: all the partners are jointly and severally responsible for the contract →one single action against all of them ( = jointly) or just sue one (= several from verb to sever); ). That one partner can seek indemnity from remaining partners;
  • In Tort: the partners are jointly and severally responsible → one single action against all the partners (joint) OR just sue one of them (severalDebts: “joint and several”
  • Debts: the partners have joint and several liability

                    New partner: only liable for debts and obligations from date of joining.

                    Retiring Partner: – liable for all debts and obligations to date of retirement; Will be liable for debts thereafter unless creditors are on Notice of Retirement.

 

Dissolution of Partnership: – i.e. termination of

  • By Court = Act allows Court to dissolve partnership where partner is incapable; partner guilty of misconduct or breach of the partnership deed; firm is making losses or where its “just and equitable” to do so (similar to Contract Law);
  • By Law = expiry of agreement; objective of partnership achieved; notice of death or bankruptcy; business becomes illegal;
  • By Agreement = partners agree to end it;

 

On dissolution what happens assets/liabilities?

First debts paid in priority as set out 1890 ( check out list of preferential debts).  If surplus then divided between partners.  If deficiency partners personal assets at stake!

 

Compare Companies to Partnerships:

 

– law notes from Kilkenny Solicitor firm Holland Condon

 

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Types of Business Organisations – law notes for accounting and law students

  • There are various guises/structures/forms that people use to carry on business e.g. → sole trader → partnership → company → co-op → joint venture → mutual society = types of organisations through which business is carried on

 

SOLE TRADER: simplest; 1 person organisation; 1 owner

Capital: financed by owner’s savings or loans in his name.

Liability: debts are his personal liability.  Law makes no distinction between business and personal assets.  Sole trader has unlimited liability for debts. If business goes bust, his personal assets are up for grabs = he may go bankrupt  Contracts and assets in his own name.

Organisational structure: sole trader has complete ownership and control.  Sole owner can have employees.

Accountability: self-accountable.  Limited external regulation – tax returns + tax audits.  Not covered by company law.  Law in general and business law applies e.g. Employment; Health & Safety; Contract Law; Negligence etc.

 

  • BUSINESS PARTNERSHIP: common form; 2 or more people in business

Definition = “persons carrying on a business with common view to make profit”.  Up to 20 persons exception Solicitors & Accountants can have 50. By law the latter can only operate as sole trader or partnerships.

Capital: financed by owners’ savings or loans.  Partners could contribute equally 50:50 or on other percentages.

Liability: each partner has unlimited liability for debts or business.  Partners are liable to contribute their % share of the business towards the business debts. At least with partnerships the risks are shared

Organisational structure: ownership is shared between partners e.g. may be 50/50.  Can have employees.  Partners accountable to each other.  Acts of one partner binds all.

Accountability: similar to sole traders; not regulated by company law.  Must do tax returns.  General law & business law applies.

 

COMPANIES: common form of business structure used to carry on business.  Apply to Company Registrations Office (CRO) to incorporate a company.  Get Certificate of Incorporation.

Capital: initially provided by the first shareholders who put in money in return for shares.

Liability: most common form of company is limited liability company = shareholders have limited liability for the debts of the company.  If company goes bust, then, it owes the money to the creditors not its shareholders.

Shareholder is liable only to pay up for their shares e.g. A buys €1 share in X Ltd; X Ltd goes bust; A had paid his €1 then that’s all A loses; BUT if A had only paid 80 cent, then A would have to pay up 20 cent.

This company known as COPMANY LIMITED BY SHARES -versus- COMPANY LIMITED BY GUARANTEE = each shareholder guarantees to pay a certain figure on winding up -versus- UNLIMITED COMPANY e.g. guarantees companies = charities & voluntary groups.

So the owners of companies can have their liability kept limited by forming companies limited by shares.  Least risky compared to Sole Transfers & Partnerships.

Advantages: attracts entrepreneurs to take risks; personal wealth not affected; separate entity; tax advantages.

Disadvantages: creditors bear all the financial risk.

Organisational structure: owners hold shares in the company, which is separate entity managed and run by a board of directors appointed at an A.G.M. by the shareholders (shareholders = owners = members).

The shareholders and directors could be the same people but this is not the case with big public companies.

Accountability: companies have considerable regulation.

*Company law 1963 – onwards –                                               *CRO

*Stock exchange rules for public listed companies                *General law & business law.

 

Company Limited by Shares – can be public or private

Public company (limited by shares) involves the public at large whereas Private company (limited by shares) does not.

Most common form = private

NB see the list of common characteristics and comparisons between public and private

 

NB Company is a separate legal entity to its owners

  • Limited liability (ii) separate corporate status v sole traders & partnerships

-Law sees a company as a person in its own right i.e. has legal personality – “artificial person” → (can enter contracts: own assets) (sue or be sued: commit crime)

-Owners own shares in the company and company owns assets.  They are separate.

So if company goes bust then owners (shareholders) don’t put up their own personal assets.  If owner dies the companies doesn’t e.g. shareholder in Bank of Ireland dies, B.O.I. does not.

-We can be confused by this, as most companies are owned and run etc. by the one/same person.  In addition, the owners may have given guarantees to banks over company loans so when we see company going bust, the assets of the owner may go but for different reasons.

-OWNER ↔ SHARES→ COPMANY ↔ assets/liabilities

-Corporate personality or veil of incorporation

NB Salomon v Salomon & Co Ltd

-•Where do proceeds of asset sale go → to bank a/c?

  • Someone slips in Bank of Ireland – who do they sue?

 

COMPANY LEGISLATION CONSOLIDATED IN 2014

The Companies Bill was passed on Wednesday, 10 December 2014. The new Companies Act is planned to come into force on 1 June 2015.It’s called Companies Act, 2014.With about 1,500 sections, this is the largest piece of legislation ever enacted by the Oireachtas. Essentially, it consolidates all Company Acts from 1963 to 2013 into one Act.

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Property transactions in Ireland making steps to go fully online – a legal news bulletin from Kilkenny Solicitors Holland Condon

The biggest revolution of the conveyancing system in Ireland since the creation of the State has begun with the start of the implementation phase of the Irish Law Society’s “eConveyancing project”.

eConveyancing will make all interactions between solicitors, lenders and the Property Registration Authority (PRA) entirely electronic for the first time and will greatly reduce transaction times and costs while increasing security and transparency.

Home-buyers will see transaction times reduced to as little as five working days once the system is up and running.

eConveyancing will operate via a secure central hub that will see solicitors, lenders and the PRA share information in real time. Once the solicitors for both a buyer and a seller are ready to complete a transaction, the closing of the property will happen instantly. The current large time lag between completion and the registration of ownership will be removed and all funds will move via electronic funds transfer.

Irish Law Society Director General Ken Murphy said, “We want to enable a person who agrees to buy a property on a Monday morning to be the registered owner by the following Friday. The costs of the conveyancing process should also reduce while opportunities for fraud or errors are virtually eliminated.”

“We have been active supporters of this project since it was first proposed by the Law Reform Commission in 2006. In May 2014 the Government made eConveyancing a key measure of Construction 2020.”

He went on to say that “The Law Society is now focused on building the team to make eConveyancing a reality. We are working with a number of stakeholders including the Banking and Payments Federation Ireland (BPFI) and the PRA. The current paper-based system simply cannot deal with the demands of the modern property market. Currently the conveyancing system is almost entirely paper-based – it is slow, inefficient and costly. Irish home-buyers have changed. They are mobile. They demand transparency.”

 

– Holland Condon Solicitors Kilkenny

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New Companies Act – news on law matters from Holland Condon

The Companies Bill was passed on Wednesday, 10 December 2014. The new Companies Act is planned to come into force on 1 June 2015.It’s called Companies Act, 2014.

With about 1,500 sections, this is the largest piece of legislation ever enacted by the Oireachtas.

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Law of Tort – negligence – law notes for accounting and law students from Holland Condon solicitors Kilkenny

Law of Tort  (Negligence)

Civil Law side; mainly Common Law; some Statute & EU

Tort – French = Wrong

– TORT = defined as the Law of civil wrongs.  It’s about preventing one individual from hurting another individual’s Property (e.g. trespass, nuisance) // Wellbeing (e.g. negligence, civil assault) // Reputation (e.g. defamation).

– arises where no contract between parties as if there was, you would sue in contract e.g. accident involving passenger in car = passenger sues driver in negligence –v- passenger in taxi = sues driver in contract and/or negligence.

 

– NEGLIGENCE is defined as

Unintentional breach by one party of a legal duty to take care that causes loss or damage to the injured party.

Plaintiff must prove on the balance of probability*to succeed in their case Four Elements as seen in the definition :-

  1.  Duty = Defendant owed Plaintiff duty of care;
  2. Breach = Defendant breached that duty;
  3. Causes = causation – breach causes plaintiffs loss;
  4. Damage/Loss = the damaged suffered should have been reasonably foreseen by Defendant i.e. damage not too remote

*  compare this with criminal law

 

1. Duty

Question that needs to be answered in the affirmative = Did the defendant owe the Plaintiff a duty of care?

We have a duty of care to our neighbour à “the neighbour principle”

NB      Donoghue v Stevenson (1932) UK case – opaque bottle.  Plaintiff became seriously ill.  Defendant argued no duty or care owed to Plaintiff as Plaintiff had not bought the bottle, so no contractual duty owed to plaintiff.

HELD: – Defendant owed duty to people he could reasonably foresee would consume the product.

Quote Lord Atkins.

 

Very broad definition of who a neighbour was so most defendants were being caught, some would say unfairly. Courts, therefore, refined the definition and created a modern day test in Caparo Industries plc v Dickman (1990); 3 more questions added =

  1. Was it reasonably foreseeable that the defendant’s action would cause harm?
  2. Is there sufficient proximity between the parties?
  3. Is it fair, just and reasonable to impose a duty on the defendant?

 

  1. Breach of that duty

In order to determine a breach the Court must establish the level of care owed to the Plaintiff, known as “standard of care”; and then, examine did the defendant meet that level.

Generally what a “reasonable man” would do.  Irish Courts have said “reasonably careful man”.  Factors taken into account are: –

  • Probability of causing damage – the greater the chance that damage or loss will occur then the higher the standard O’Gorman v Ritz (Clonmel) Ltd;
  • Seriousness of the likely damage – the more serious the damage your action could cause, then the higher the level of care expected Paris v Stepney;
  • Issues of costs and practicalities – Latimer v AEC Ltd;
  • Social value of Defendants actions – e.g. rescuers WATT v Hertforshire Co Co.

 

  1. Defendants act or omission caused the Plaintiff’s loss/damage [causation]. Test used = the Plaintiff would not have suffered this loss/injury “but for” Defendant’s breach.

If multiple factors involved in causation, then, ask which one materially contributed.

“But for” test see Barnett v Chelsea Hospital.

 

  1. Damage reasonably foreseen = reasonably expected -v-     The Wagon Mound case.  Turner v Irish Rail

 

 

 Defences to Negligence Claim

*Volenti non fit injuria – voluntary assumption of risk; Regan v Irish Auto Club; consent of the Plaintiff e.g. in sport;

* Illegality – Cummings v Granger

* Statute of Limitations Act, 1957: – The Plaintiffs claim is statute barred after a certain period of time e.g. 2 years for personal injuries. In other torts it’s between 4-6years to make claim.

* Inevitable Accident – Stanley v Powell.  Defendant’s bullet ricocheted off a tree and injured Plaintiff.  Defendant not liable.

* Necessity – a negligent act is done to avoid a more serious one.

* Novus Actus Interveniens – intervening act of a third party really caused the accident e.g. Conole v Redbank Oyster Comp.  The Defendants had a ship built that was unseaworthy.  Captain was aware of this at the launch and despite this brought 50 children out to sea; capsized and a number drowned.  The ship builders could not be blamed for negligently building unseaworthy boat.  Sole cause = Captains recklessness.

* Good Samaritans – Part 3 of the Civil Law ( Miscellaneous Provisions) Act, 2011 provides that good samaritans will be protected from personal liability in negligence when providing assistance in an emergency. Volunteers in organisations set up to assist can also avail of this protection.

* Contributory Negligence: – Plaintiff contributed to his loss. So it’s a partial defence ( i.e. not a full defence).  Sinnott v Quinnsworth – Plaintiff award down 15% as no seat belt worn.                        Jones v Livox Quarries

 

 Remedies

Objective = To compensate victim not to punish the wrongdoer;  Return Plaintiff to position they were in had the negligence not occurred;

 

Categories: –

DAMAGES -

  1. Special Damages e.g. car repair bill; gp bills = actual expenses
  2. General;
  3. Aggravated;
  4. Exemplary or Punitive;
  5. Nominal;
  6. Restitution – based on damages – if Defendant has profited from his wrong, then Court will prevent unjust enrichment to the Defendant by awarding profit to Plaintiff.

 

INJUNCTIONS-

  1. Used in areas like nuisance, defamation

 

Negligence can be divided into various categories e.g.

  • Product Liability;
  • Occupiers Liability;
  • Employers Liability;
  • Public Liability
  • Professional Liability.

 

Professional Negligence

 

A professional person, such as a doctor, dentist or solicitor, owes a duty of care to his/her client. One cannot use the standard of care of a “reasonably careful man”. The standard is that which would be exercised by a reasonable professional holding similar qualifications.

The distinctive feature of professional negligence is the account which the Courts take of customary practice.  If a member of the profession can show that he or she has adhered to customary practice of his/her profession, generally no breach of duty will be found.  However, if it can be shown that the customary practice is itself inherently defective, so much so that it should not have been blindly followed, the person may be found guilty of professional negligence.

 

Solicitors

Solicitors owe a duty of care to their clients but also to the other persons whom they can reasonably foresee would be affected by their negligence.

Wall v Hegarty (1980)

The Defendant was a Solicitor who had been instructed by a testator to draw up his will to include gifts to the Plaintiff, his sister-in-law.  The solicitor failed to advise his client that beneficiaries under the will could not witness the will and the question for the Court was first, whether this was negligent behaviour or second, whether the solicitor owed a duty of care, not just to his client, the testator, but the Plaintiff as beneficiary under the testators will.  In other words, the question was whether there was a sufficient degree of proximity between the solicitor and the beneficiary to impose a duty on the solicitor to take reasonable care to protect the interest of the beneficiary.

 

It was held by the High Court that the solicitor did owe such a duty to the beneficiary to draft the will with reasonable care and skill as the solicitor knew or ought to have known that if he failed in his professional duty to properly draft the will there was a risk that the beneficiary would suffer damage.

 

The test is often described as a test for whether an individual knew or ought to have known that carelessness on his party would be likely to cause damage to another person.  This is often seen in professional negligence cases where what is relied on is the skill of someone else.

 

Accountants

Accountants also owe a duty of care to any person whom they can reasonably foresee will be relying on their work or advice.

Golden Vale Co-Operative Creameries Ltd v Barrett (1987)

The Plaintiffs claimed damages for negligence and breach of contract against the Defendants, a firm of accountants, which had been investigated on the Plaintiff’s behalf the affairs of a poultry company.  They had provided information designed to assist the Plaintiffs in reaching a decision as to whether they should participate in a rescue operation to keep the poultry company in business.  The Plaintiffs claimed that they had been induced by the Defendants report to sink £1,000,000 in the poultry company, which they lost when it went into liquidation shortly afterwards.

 

The Court found that the fact that senior officials of the Plaintiffs organisation were eager to be told that they could push ahead with the takeover without too much risk placed an ever greater onus than usual on the Defendants “to exercise a restraining influence over their client and to couch their report in terms which could be justified objectively in every respect”.  The Court found that while the report contained all kinds of reservations, the overall impression created by certain extracts was “much more encouraging than was warranted” by the trading and financial state of the poultry company as known to the Defendants.

 

On the other hand, the auditors in the following case escaped liability on the basis that they could not foresee that the Plaintiffs would rely and act upon the figures prepared by the auditors.

Kelly and Others v Haughey Boland (1987)

The Plaintiffs were directors of Cavan Crystal Ltd, who entered into an agreement to purchase Royal Tara China Ltd.  Before they finalised the contract they were given the audited accounts for Royal China Tara Ltd., for 1973 to 1976, which accounts had been prepared by one of the partners of the Defendant firm as auditors.  The Plaintiffs, having completed the purchase of Royal Tara Ltd. became aware of certain production difficulties which the company was experiencing and brought an action against the accountants saying that the stock figure had been over-stated and that figures produced showed a misleading view of the trading position of Royal Tara Ltd., at the date of purchase.

 

It was held by the High Court that the auditors had not exercised reasonable care in the preparation of their figures.  However, at the time the figures were prepared the auditors could not reasonably have foreseen that the business of Royal Tara could be sold and so could not owe a duty to the Plaintiffs, as intending purchasers, or to intending purchasers in general.  The Court further held that the Plaintiffs had not been able to show a direct link between the carelessness of the Defendants and the loss which they claimed they had suffered in purchasing a company which was worth less than they had thought.

 

– Holland Condon solicitors based in Kilkenny

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A new regime for inheritances and gifts when availing of agricultural relief – a legal note from Kilkenny Solicitors Holland Condon

From yesterday, 1st January, 2015, the rules relating to agricultural relief have altered. Essentially, Revenue require real farming to be part of the process, if a beneficiary wants to avail of the relief.

 

Up to the end of 2014, in order to be classed as a “farmer”, the only test you had to pass, was a mathematical one, i.e.  greater than 80% of all your assets, including the value of the gift/inheritance, needed to be agricultural if you were to be a farmer for CAT purposes. It mattered not that you never had been even on a farm or that you couldn’t tell a heifer from a horse. It allowed for post death planning, where a beneficiary’s non-agricultural assets were transferred to ensure they passed the 80% rule.

 

Since 1st January, 2015,  the beneficiary will need to satisfy one of the following :-

  • Be a trained farmer and actively farm the land ;
  • Be an active farmer, spending at least 50% of your working time in farming activities;
  • Lease the agricultural property for at least 6 years to a person who satisfies either of the above criteria.

It is vital to examine all criteria for agricultural relief before embarking on a farm transfer.

 

– Holland Condon Solicitors Kilkenny

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Law of Agency – law notes for legal and accounting students from Holland Condon Solicitors Kilkenny

(this Contract Law too)

* Definition = an agent is a person (“agent”) who is “employed” by another (“principal”)  to bring that other person into contractual relations with a third party e.g. estate agent, travel agent. P (principal) enters a contract engaging A (agent) to negotiate contracts with T (third party); which creates a legal contract between P and T.

Law on agency governs relationship between agent and principal and the third party.

The authority given by principal to agent is the most important feature in an agency relationship. The extent of the authority will be a term in the contract between agent and principal. What the agent can and cannot do on behalf of the principal.

Remember, Agent has contract with principal.  Principal has contract with third party.

 

*Classification of an Agent

  • General Agent = can bind a principal in normal course of business e.g. bar manager buying drink, crisps;
  • Special Agent = for specific purpose or time e.g. auctioneer;
  • Universal Agent = bind principal in all/any contracts e.g. an agent appointed by Power of Attorney.

Solicitor as general agent e.g. doing clients legal work in all areas;

Solicitor as special agent e.g. specific area/job – debt collection .

 

*Creation of an Agency Relationship between principal + agent =

  • By Agreement i.e. both parties contract in normal contractual way.

The authority given by principal to agent is the most important feature in an agency relationship. The extent of the authority will be a term in the contract between agent and principal.  What the agent can and cannot do on behalf of the principal.

Express Authority v Implied Authority;   

Watteau v Fenwick; ALSO Hely Hutchinson

 

  • By Ractification – list 6 rules – ratification occurs after contract is entered into by the Agent with the third party;

 

  • By Estoppel – principal allows third party to believe agent has power/authority to act on its behalf. Agent has apparent (also called “ostensible”) authority. The principal is estopped (prevented) from denying that agent had not authority. A court will uphold a contract where there is apparent authority if  4 matters are present.

 

  • By Necessity – agency automatically created without consent of the parties where emergency arises provided 4 elements are there.

 

*Duties of an Agent

  • Perform the tasks required of him;
  • Act with due care and skill and if agent is an expert, then, apply appropriate standard that a reasonable person with that skill would do;
  • Don’t exceed authority;
  • Avoid conflicts of interests and make full disclosure of all material info;
  • Don’t make secret profit;
  • Don’t delegate;
  • Duty to account;
  • Duty of confidentiality;
  • Duty not to disclose/misuse info;

 

*Rights of an Agent

  • Be paid;
  • Be reimbursed expenses;
  • Indemnified by principal in respect of the contract and all losses/liabilities provided the agent acted within his authority;

 

 

*Liability of Agent to Third Parties

Agent is not personally liable for a contract, (the principal is), provided he acted within his authority.

NOTE: – may be liable to Third Party if Third Party was unaware of agency but agent would be entitled to be indemnified by principal.

If Agent acts > authority = personally liable.

 

*Termination of an Agency

 

By Action of Parties e.g. 

 

 

By Operation of Law e.g.

 

 

 

  • Performance;
  • Completion;
  • Mutual Agreement;
  • Revocation by principal;
  • Renunciation by agent;
  • On giving reasonable notice

 

 

  • Death, incapacity, bankruptcy;
  • Expiry of agency agreement;
  • Frustration;
  • Change in Law (illegality).

 

– a firm of lawyers based in Kilkenny, Ireland.

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Business Leases – Contracting out of business equity rights – a note on Irish legal matters

Landlords and Tenants alike must feel their prayers were answered with Section 47 of the Civil law (Miscellaneous Provisions) Act 2008 ( which we will call from now on the “2008 Act”).

Section 4 of the1994 Act was amended by Section 47 of the 2008 Act, which came into being on the 1st July, 2008. The 2008 Act allows all business tenants, regardless of user, who have a tenancy pursuant to Section 13(1) (a) of the 1980 Act, to contract out of their right to renew their tenancy, after five years occupation in the premises.

For this provision to apply the tenant must renounce his or her right to a new tenancy, in writing, and must receive independent legal advice in respect of the implications of the renunciation. There is no requirement that this renunciation should be executed prior to the commencement of the tenancy (as was required under Section 4 of the 1994 Act), which means a tenant can agree to renounce his or her rights during the currency of the lease.

 It is regarded as best practice to do the renunciation before the Tenant commences occupation, or as early in the Lease as possible.

Up to 2008, Landlords were very reluctant to grant any more than a Lease of under 5years as they feared the Tenant would, after the five year period, obtain an entitlement to a long lease of up to 35 years. Tenants who wanted a longer term were, thus, deprived of negotiating for terms in excess of five years.

Thus, Section 47 of the 2008 Act provides greater flexibility and freedom to both landlords and tenants when negotiating the term of the lease. It allows the landlord and tenant the chance to agree on a tenancy term which is in keeping with their requirements and commercial realities without the landlord being statutory obliged to renew the lease. The “contracting out” provisions as set out in the 2008 Act applies not only to a lease for office use but also includes retail, industrial and other business sections.

 – from Kilkenny based solicitors Holland Condon

 

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Employment Law – law notes for legal and accounting students from Holland Condon solicitors

  • Civil side (as opposed to criminal)
  • part of contract law

~ Governs relationship between employers and employees.  The parties have a contract of employment.  Law in this area comes from common law, and, mainly, from statute/ EU law.  Focus is on protecting and giving rights to employees.

~ Contract can be oral or written (statute asks for it in writing but oral still is valid contract).

~ Terms can be expressed or implied by custom; common law; statute and the Constitution.

 

~ 1st question to be asked – Have we an Employee?

 

Employee                   v                      Self-employed

 

    Independent contractor
     
  “Contract of Service” “Contract for Services”
     
  Employment Law applies Employment Law does NOT APPLY
     
  Definition = “an individual who has entered work under a contract of employment” Definition =  no statutory one. e.g. call out gardener v one @ Kilkenny Castle

 

 

~ Employers duties = *pay wages; * provide work; *safety; *holidays.

~ Employee duties = *available for work; *obey lawful orders; *use reasonable care.

 

~ Why is distinction between employee v independent contractor important?

  • Statutory protection is given only to employees;
  • Employer is legally responsible for actions of employee in the law of tort (=“vicarious liable”) and not for actions of self-employed;
  • Employer legally responsible for actions of employee in contract law (law of agency);
  • In liquidations, employees are preferential creditors and contractors are not;
  • Employees paid under PAYE basis and not obliged to account to tax man.

 

~      4 Tests to determine is she/he employee ====== 

1. Control Test = has the employer control over Employee ?

re/ Sunday Tribune

            Tierney v An Post

2. Integration Test= how integrated is employee into workplace ?

Re/ Sunday Tribune  compared to Kelly v Irish Press

 3. Enterprise Test = who bears the financial risk ?

Tierney v An Post

4. “Economic Reality” Test = hybrid of all tests & more

The courts have recognised that no one test can be decisive in determining employee status.  They apply an economic reality test, a hybrid test, which contains elements of all other tests.  In Market Investigations v Minister for Social Security (1969) (UK case) Justice Cooke outlined the factors that may be of some importance in determining the status of a worker: (1) the provision of own equipment or whether they supply their own transport; (2) the hiring of helpers; (3) the degree of financial risk; (4) the degree of responsibility for investment and management; (5) whether there is an opportunity of profiting from the sound management in the performance of his tasks; (6) whether they were paid by commission or salary; and (7) whether they identified themselves as self-employed for tax purposes.

Above UK case followed here in Henry Denny case.

There is no definitive test, however, and the determination in each case depends on the nature of the work itself and the relationship between the parties.  McAuliffe v Minister for Social Welfare (1994) Mr. McAuliffe, a wholesale distributor of newspapers, contracted with two persons to deliver newspapers on his behalf to retail shops and other outlets.  An issue arose as to whether these persons were employed pursuant to a contract of service or under contract for services.

The High Court in deciding that the contracts were for services was influenced by the following facts: –

  • The persons provided and maintained their own transport;
  • They were remunerated on the basis of a sum per run and were paid monthly against invoices submitted by them to Mr. McAuliffe;
  • They were free to carry goods for other persons except they could not carry newspapers for another supplier when engaged on delivery runs for Mr. McAuliffe;
  • They were responsible for any damage, destruction or loss of goods carried and for any loss occasioned by delay.

The Court went on to say that had the contracts been one of service then one would expect the employee to be paid a weekly wage and overtime and the vehicle to be provided by the employer and the employer to discharge all overheads relating to the vehicle, the employee to be prohibited from using the vehicle for carrying on a delivery business of his own.

There is no real single test that can be used as was reiterated in the very recent Irish case of Min. For Agric. V Barry.

 

****SEE  ———-  SUMMARY OF FACTORS TAKEN INTO ACCOUNT TO DETERMINE WHO IS EMPLOYEE

 

 PROTECTIVE LEGISLATION

Legislation has been enacted to protect the interests of both the employer and the employee, covering various aspects of employment.  Such legislation is contained in the following Acts: –

  •  The minimum Notice & Terms of Employment Acts, 1973 to 1994;
  • The Unfair Dismissals Acts, 1977-2007;
  • The Employment Equality Act, 1977;
  • The Anti-Discrimination (Pay) Act, 1974;
  • The Redundancy Payments Acts, 1967 to 2007;
  • The Protection of Young Persons (Employment) Act, 1977;
  • The Worker Protection (Regular Part-Time Employees) Act, 1991;
  • Payment of Wages Act, 1991;
  • The Safety Health & Welfare at Work Act, 1989;
  • Maternity Protection Act, 1994;
  • Protection of Employees (Temporary Agency Work) Act, 2012.

 

It is important to note that the above Acts only give protection to employees who work under a “contract of service”.  An independent contractor works under a “contract for services” and is not an employee.

 

AGENCY WORKERS = Consider the position of people who work as “agency workers” i.e. people employed by an employment agency who work for third parties. Do not confuse this with the separate area of AGENCY ( see anon). Discuss agency workers.

 

Termination of Employment Contract

(1) Effluxion of time;

(2) Performance of contract;

(3) By Agreement;

(4) Death or incapacity of parties;

(5) Breach of Terms of contract;

(6) Frustrating event e.g. permanent illness of employee (incapacity); Insolvency or bankruptcy of employer;

(8) By notice given to other party. Common law says notice must be reasonable. Statute has set out minimum notice periods for employers. Contract can have express terms dealing with notice but must be at least statutory minimum. Employer must give notice but notice alone can’t bring an employment contract to an end because of employee protection legislation. Thus, notice given to employer by employee is ok.

(9) By redundancy;

(10) By dismissal if employer has substantive grounds for the dismissal; uses fair procedures and gives notice of dismissal.In some cases, summary dismissal is justified.

 

*Dismissal without just cause = employee has claim either in common law – “wrongful dismissal” OR in statute law – “unfair dismissal”.

Breach by employer = that’s what we are dealing with.

 

UNFAIR DISMISSALS

  • NB aspect of employment law; Unfair Dismissals Act, 1977 – 2007   ( UDA )

 

  •  Criteria for making a claim =

Pre-conditions =

(1) Employee = contract of service;

(2) Greater than or equal to 1 years service to employer;

(3) Not excluded by Act e.g. Garda;Army;Public Servants.

(4) Dismissal generally must occur within 6 months of making a claim.Can be extended to 12 in rare cases eg claimant had depression.

 

Step One = Employee must have been dismissed

  • Dismissal defined as (a) termination of contract by employer or (b) termination by employee because of employer’s actions to the employee (constructive dismissal); or (c) end of a fixed term contract without renewal.

** Not always easy to say dismissal e.g. f*** off”.

Once employee shows dismissal then it is presumed to be unfair and the onus is on employer to show it was fair.

 

Step Two = What is the reason for the Dismissal ? UDA sets out 2 categories of reasons for dismissal –  one where reasons are automatically unfair and cannot be made fair; and the second, is where the reasons might be deemed fair.

  • Automatically unfair reasons = membership of trade union, race, colour, sexual orientation, political opinion, age, pregnancy of employee, suing employer for other reason.
  • Possibly fair reasons = potentially fair reasons for the dismissal i.e.

**Capability (employee becomes mentally or physically incapable of doing work e.g. Showerings case); OR Competence (employee intellectually not up to the mark; need for help/training and supervision with review of performance & warnings if the dismissal is to be fair) OR Qualifications of employee (employee does not have the necessary qualifications e.g. Doctor P v Mid West Health Board);

**Conduct of employee inside workplace and outside; can lead to reason for dismissal where it amounts to “gross misconduct” e.g. serious conviction, fraud, assault at work, fraud at work. In conduct cases, the process of investigation of the conduct and the method/process of dismissal must both be fair. Fair procedures and natural justice must be applied no matter how bad the conduct of the employee is eg. robbing employer but dismiss procedure unfair = unfair dismissal. also see Noone v Dunnes and Preston v Standard Piping Ltd; repeated bad conduct can result in dismissal being fair – Seale -v- Foreman Cameras

**Redundancy provided employer follows fair redundancy procedure. A dismissal dressed up as a Redundancy will be an unfair dismissal case.

**Statutory illegality e.g. Brennan v Blue Gas.

 

Procedure Step = over-riding principle in dismissal cases even if the reason for dismissal is deemed fair and reasonable, is that the procedure leading to dismissal must also be fair i.e.

  • Properly investigate conduct/problem
  • tell employee allegations and give copy evidence to them;
  • allow them to respond and be represented;
  • allow them time to prepare and put forward representation to an adjudicating body (by themselves or by a rep.);
  • natural justice applied in the hearing of the representations;
  • upon conclusion give written reasons for dismissal.

 

Third Step = Tribunal assesses whether the reason is fair by asking whether a reasonable employer would have terminated the contract for the reason provided by the employer. Remember this does not apply in “automatically unfair dismissals”.

 

Constructive Dismissal

~ Actions of employer drive employee to terminate or resign;

~ The conduct of employer must be serious enough e.g. Byrne v RHM Foods;

~ Onus on employee to show constructive dismissal

~ Examples of employer actions that could lead to constructive dismissal. List them please.

~ Relief and remedies for employee = same as unfair dismissal as contructive dismissal is unfair dismissal

 

Remedies for Unfair Dismissal

  • 6 (maybe 12 if grave reason) months to make a claim
  • Go to Rights Commissioner first or go to
  • Employment Appeals Tribunal;
  • Appeal within 42 days to Circuit Court
  1.  Re-instatement; same employer same contract OR
  2. Re-engagement; same employer different contract (eg.job)
  3. Compensation = 104 weeks max.

SO remedy could be either  1, or 2, or 3, or 1+3, or 2+3.

 

Unfair and Wrongful Dismissal

  • Employee unfairly dismissed has 2 legal remedy routes
  • Must choose only one i.e. Unfair Dismissal Act, claim to rights commr./E.A.T

OR

  • Common Law action in the Courts for “wrongful dismissal” and employee must prove dismissal (a) without notice and (b) loss suffered. Damages awarded are limited to what the employee would have earned had they worked the notice. Generally used where the employee has a mixed bag of employment contract eg director and chief executive role and where Statutory notice doesnt apply.

Why bring claim in the Courts?

  • Pre-conditions don’t apply e.g. 1 years service;
  • No limit on amount of damages;
  • Claim can be made for up to 6 years after dismissal;
  • Generally used where large salary or large financial losses involved.

 

You should track down a comparison Table between

Unfair  /  Constructive  /  Wrongful dismissals

 

 

REDUNDANCY

*Definition = job ceases to exist because of financial position of the firm; not enough work; firm closing down; re-organisation of work practices or work structure.

*Who has a Right to Redundancy ? if you are working greater than or equal to 2 years and over 16 years and not family and not live with employer;

*Right to Notice before your job terminates (before redundancy)= minimum of 2 weeks notice of redundancy or more if employee has long service (e.g. 15 years = 8 weeks notice under Minimum Notice Acts) or pay in lieu.

*Right to time off to seek new work

*Statutory Redundancy Payment =>  employee has a right to be paid this minimum sum (can pay more than minimum) =  [(2 weeks gross wage to max of €1,200) x no. of years in work] + 1 week gross wage;

*Selection Procedure = in selecting various or one employee for redundancy, the employer must be fair and objective in its selection; see Williams v Compair and list what needs to be done. Selection criteria that will be used are = you should list some.

*Duty to Consult = employees body/trade union where greater than 10% workforce involved in redundancy and to notify the Minister in advance of the redundancies.

 

If redundancy not genuine or unfair selection or one of automatic unfair reasons can be shown to be used in the redundancy selection process, then it’s an Unfair Dismissal case. Employers can’t use “redundancy” as a mask for unfair dismissal.

– from a firm of Solicitors based in Kilkenny

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The impact of the Irish Legal Profession on Ireland and its economy – a note on law related matters from Kilkenny Solicitor firm

The Irish Law Society, recently commissioned an independent survey by leading Irish economic consultancy firm Fitzpatrick Associates, analysing both the impact of the downturn on the solicitors’ profession and the sector’s contribution to the wider Irish economy.

The report details the profession’s immensely valuable contribution to the wider economy, showing the enormous and very positive impact we make. Among the key findings:

  • The legal services sector, of which solicitors make up around 70% of professional practitioners, had 18,000 persons engaged in 2014 and is expected to contribute €1.46bn in gross value added (GVA) to the Irish economy this year.
  • The sector is second only to telecommunications in terms of overall direct contribution to economic output among key service sectors examined.
  • More people are engaged in legal services than the engineering or telecommunications sectors.

As for the legal profession itself, the figures are stark:

  • Gross incomes for self-employed solicitors fell by 43% over the period 2007 to 2012. The greatest declines were outside Dublin; the Border, Midlands and Western region saw incomes fall by as much as 53%.
  • Between 2008 and 2012 employee numbers engaged in the legal sector fell by 21%.
  • Personnel costs, wages and salaries fell by 20% between 2008 and 2012.
  • There was a five-fold increase in the number of legal professionals receiving unemployment benefit or assistance between 2006 and 2009, while the 2014 numbers remain three times higher than they were in 2006.

– Holland Condon solicitors from Kilkenny Ireland

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