Pre-Incorporation Contracts: an Examination of the Conceptual Confusion

11281 words 46 pages
UNIVERSITY OF BENIN, BENIN-CITY SCHOOL OF POST-GRADUATE STUDIES FACULTY OF LAW DEPARTMENT OF BUSINESS LAW

MODULE: COMPANY LAW, MANAGEMENT AND FINANCE (BUL701)

TOPIC; PRE-INCORPORATION CONTRACTS: THE EXAMINATION OF THE CONCEPTUAL CONFUSION

By

Esther Adilli Ikenye

Being a seminar paper presented at the Fourth Edition of the Company Law, Management and
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Secondly, this paper attempts to determine the effectiveness of the present legislation and case law on the regulation of pre-incorporation contracts in Nigeria as well as the present position in some other jurisdictions.

1.0 INTRODUCTION It is usual in certain circumstances for contracts to be entered into on behalf of a company prior to its formation and incorporation. Such contracts made in advance are intended to be implemented by the company upon incorporation. For decades, there has been a confusion of the concept of pre-incorporation contracts. This confusion is due to the fact that the concept of pre-incorporation contracts in company law at first glance, may appear disarmingly simple, but after an examination of the common law, legal treatises and legislative attempts to find an equitable solution to a seemingly insoluble legal problem, is very complex. As a result of the confusion, how pre-incorporation contract operates in different jurisdictions depends on their operating legal regime. Basically, the strict position maintained at Common Law has been modified in Statutes of different jurisdictions. In carrying out a comparative assessment of the statutory interventions, this paper shall consider the historical context and development surrounding common law rules governing pre-incorporation contract and the interplay and influence of the rules of the common law of agency. It

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