Law Dissertations - Examples - Creditors Interests - Free Essay Example

Sample details Pages: 6 Words: 1670 Downloads: 6 Date added: 2017/06/26 Category Statistics Essay Did you like this example? Example law dissertations for you to study. If you need expert help with your law dissertation, then our professional dissertation writing service is something you should be looking into. Don’t waste time! Our writers will create an original "Law Dissertations Examples Creditors Interests" essay for you Create order We have access to a first class pool of professional law dissertation writers. They have already helped hundreds of students with their law dissertations and now they can help you too! All our law dissertations are custom written to order by a qualified law dissertation writer. Your dissertation will be written by a proven, expert law writer and will be a 100% unique piece of research. Learn more about our fantastic dissertation writing services, we can help with any chapter of your dissertation and offer chapter by chapter delivery on orders over 6,000 words Below is an example law dissertation from our collection of law dissertations. 1 Introduction It is firmly established that directors owe duties to their companies as a whole but not to any individual members or other persons, such as creditors. However, in certain circumstances it has become established in English law, that directors in discharging their duties to their companies must take into account the interests of creditors, on the basis that the interests of their companies encompass the interests of the companies creditors. This duty was first established by the obiter dicta of Mason J. of the Australian High Court in delivering the leading judgment in Walker v. Wimborne where his Honour said: In this respect it should be emphasised that the directors of a company in discharging their duty to the company must take into account of the interests of its shareholders and its creditors. Any failure by the directors to take into account the interests of creditors will have adverse consequences for the company as well as for them. This statement was subsequently taken up by courts in the U.K. with the result that at certain points in the life of a company, its directors may be forced to give consideration to the interests of the creditors. Thus in Lonrho Ltd v. Shell Petroleum Co. Ltd where his Lord Diplock said that it is the duty of the board to do what would be in the best interests of the company and that [t]hese are not exclusively those of its shareholders but may include those of its creditors. In this essay, we investigate whether rationale for this duty, its extent is and finally its limits and scope. 2 The nature and rationale for the duty There has been a considerable amount of discussion as to whether the duty owed by directors is a direct duty owed to the creditors, or whether it is an indirect duty in that the duty is owed not to creditors, but to the company to consider creditor interests. In this regard, it should be noted that while there has been support for the view that the directors owe a direct duty to creditors, the predominant opinion, both within academic discourse and in judgments is that this is not correct. Rather directors owe a duty to their companies to take into account the interests of creditors. While the former provides for a direct duty, the latter allows for an indirect duty, a duty which is mediated through the company. The rationale for this duty lies in the fact if a company is insolvent or doubtfully insolvent then the interests of the company are in reality the interests of existing creditors alone. At this time, because the company is effectively trading with the creditors money, the creditors become the major stakeholders in the company and are, in effect, the real owners of the company; the ownership rights of the shareholders having been expunged as there is nothing over which they have a claim. The creditors, therefore, warrant some form of fiduciary protection. The directors become accountable principally to the creditors as they are the ones to lose out if the company collapses. Consequently, if a company is insolvent, the directors will be held to have acted improperly if they employ funds that are payable to creditors in order to continue the activities of the company. Thus, in situations of insolvency, whilst the doctrine of limited liability shifts the risk of failure from the shareho lders to the creditors, the duty to take account of creditors interests seeks to mitigate the shift. 4 The extent of the duty to protect creditors interests When a company has a significant amount of assets and the debts owed to creditors are relatively minimal then the interests of creditors should not count for a lot because the company will be able to satisfy them. However, where there is some element of insolvency or possibility of it, the situation is significantly different. In this regard, the courts have taken widely differing views. Some have taken the view that the duty of directors only arises when the company is insolvent whilst others courts have taken a broader view and held that the duty arises where the director has knowledge of a real risk of the companys insolvency. While accepting that the duty arises when a company is insolvent, Street C.J. in the frequently cited case of Kinsela v. Russell Kinsela Pty Ltd (in liq) was reluctant to state when the duty arises, save to acknowledge the fact that key factor wasfinancial instability. He held: I hesitate to attempt to formulate a general test of the degree of financial instability which would impose upon directors an obligation to consider the interests of creditors. In my view, it seems that deciding whether the duty to protect creditors interests had arisen will depend on the facts of each particular case. Clearly the courts have held that directors must take into account creditors interests when insolvency exists, but there is significant authority to suggest that this same duty is triggered when a companys solvency is doubtful or even when a company is suffering financial instability, and possibly when directors are contemplating any action which if unsuccessful would prejudice creditors. 3 The purposes and limits of the directors duty to protect creditors interests Actions for breach of duty have been and can, continue to be used to enable liquidators to enlarge the assets available to creditors on an insolvent liquidation. They may also be used to thwart directors from proving in the winding up. Further to that, the duty to take into account creditors interests circumscribes the power of the shareholders to ratify a breach of duty on the part of the directors since whenever the duty arises the law is clear that shareholders are unable to ratify directors actions. Finally, the existence of the duty to consider the interests of creditors means that there is the possibility, because of potential personal liability, that it will act as a deterrent as far as unscrupulous and reckless directors are concerned so that they do not take actions which may well affect creditors rights. Undoubtedly, there are some disadvantages in pursuing a claim for a breach of duty. One of these is that a court is able where the claim is for breach of duty to grant relief to the respondent director under section 727 of the Companies Act 1985. This provision permits a court to, wholly or in part, relieve officers from liability in relation to proceedings for negligence, default, breach of duty, or breach of trust. The court may exercise its jurisdiction under section 727 only if it is satisfied that the person who sought relief had acted honestly, and reasonably, and that, having regard to all the circumstances of the case, he or she ought fairly to be excused. Thus, although the creditor may establish the existence of the duty and its breach by the director, the court may still exonerate him under section 727. Further to that, even if a liquidator obtains an order from the court based on a breach of duty, the problem facing the liquidator is that the order has to be enforced against the directors who may be impecunious, rendering the proceedings useless. Thus, the existence of the duty may turn out valueless invoked as is usually the case when the company has become insolvent. This point stems from the fact that is that there is no plain statement in the case law on directors duties as to when the duty to creditors is triggered. However, the biggest drawback with pursuing a claim for breach of duty probably is the fact that the fruits of a successful claim will be available to any secured creditor who has a floating charge over all present and future company property. 5 Conclusion There is a lot of public policy support for maintaining the existence of the directors duty to protect creditors interests, especially when the companys financial basis is not secure. The protection provided by this duty should help bolster that afforded by other statutory devices such as wrongful trading (section 214 Insolvency Act 1986), adjustment provisions (Part IV Insolvency Act 1986), fraudulent trading (section 213 Insolvency Act 1986) and misfeasance (section 212 Insolvency Act 1986). You can get help with your dissertation right now. Find out more Bibliography Statutes Companies Act 1985 Insolvency Act 1986 Cases Brady v. Brady (1988) 3 B.C.C. 535. Kinsela v. Russell Kinsela Pty Ltd (1986) 4 A.C.L.C. 215. Liquidator of West Mercia Safetywear v. Dodd (1988) 4 B.C.C. 30. Lonrho Ltd v. Shell Petroleum Co. Ltd [1980] 1 W.L.R. 627. Percival v. Wright [1902] 2 Ch. 421. Re Horsley Weight Ltd [1982] 3 All E.R. 1045. Walker v. Wimborne (1976) C.L.R. 1. Winkworth v. Edward Baron Development Ltd [1986] 1 W.L.R. 1512, 1516. Articles Prentice, Creditors Interests and Directors Duties (1990) 10 O.J.L.S. 265. Prentice, Directors, Creditors and Shareholders in E. McKendrick (ed.), Commercial Aspects of Trusts and Fiduciary Obligations (Oxford University Press, Oxford, 1992), 79. Ross, M Directors Liability on Corporate Restructuring in C. Rickett (ed.), Essays on Corporate Restructuring and Insolvency (Brookers, Wellington, 1996), 177. Van der Weide, Against Fiduciary Duties to Corporate Stakeholders (1996) 21 Delaware Journal of Corporate Law 27.

Inclusion Of Students With Disabilities - 2882 Words

One of the most current trends of education, in the American Public School, is the move toward full inclusion of students with disabilities. There has been a rapid rise in the number of students with disabilities who are spending their school day in a general education classroom under the guise of full inclusion. The practice of inclusion came about as a â€Å"natural outgrowth of the Mainstreaming movement,† during the 1960 s (Fruchter). Inclusion is based on the â€Å"rights of the students and the social benefits† that they receive from being in a general education classroom (Fruchter). There are many who see this as a solution to the problem of how to best educate children with disabilities. On the other hand, there are those who believe that†¦show more content†¦How best to do this? To fully understand the issue of inclusion, in the American Public School, one must examine the history of inclusion; the laws regarding the education of students with disabilities; and what some of the experts in education have to say about it. After a full examination of the facts can one decide which is most beneficial and appropriate in the education of students with disabilities today: to fully include students with disabilities in the general education classroom or not. Due to the society-viewing students with disabilities as burdens, advocates have been pushing for separate funding for their special education services. There are movements, which have gone ahead to block the grants on these programs. They argue that the â€Å"students with disabilities should not be treated† (Collins). This has raised concerns as to whether they are going to continue having full access to the special attention they need in these institutions. Students with disabilities, according to IDEA, are â€Å"entitled to the special education program† (Winzer). Public schools practice mainstreaming due to the lack of enough resources and therefore students here lack the necessary â€Å"exposure to achieve their maximum potential† (Srivastava). Many researchers have advocated for the separation of the two categories of students. However, many argue that educational inclusion (i.e. educating the children with disabilities

Essay about Juveniles Should Not Be Charged Differently

Many people think different when it comes to treating teenagers once they commit a crime. Folks think that their brain is not fully developed, but they sure do know what they are doing. If teenagers have the capability to commit a crime, there must be something between that made them act the way they did. Many blame parents for their child’s actions because they think that the kids learn from parents. For example, bad behavior, drug abuse, rape, murder, etc., but teenagers should learn from their parents mistakes. Teenagers should not be charged differently, if they are in juvenile hall or jail because at the end they still committed a crime. Many people blame the parents when their child’s commit a crime. â€Å"Moral are inherent from†¦show more content†¦Hall did not want to choose what parent to live with, which he decided to kill his father. In the other hand, Joseph Hall did not have the right to kill his father or any other person. Even if Jeffery Hall, was not the best parent, by taking his life away was not the best way to get rid of his insane teachings. Every family is not perfect, even though the Hall Family was not perfect, it is better to talk things out instead of committing such an insane crime. Researchers do not believe that divorce always causes pain in children, it can have both positive and negative results. In the article â€Å"The effect of divorce of Children: What makes a Difference,† states that, some researchers have found that preteen children (about ages 10 to 12) are the most upset about divorce (Karuppaswamy 1). Joseph Hall was pretty much upset about his parents divorce and decided to take his fathers life away. Divorce may affect you in your social life, emotional, etc. but it should not take you to the step where you commit such thing as a crime or any other violent step. Nithyakala Karuppaswamy claims that, â€Å"Slightly older children can become aggressive in their play, games, and fantasies. For example, they may imagine or pretend to hit one of their parents.† This is exactly what happened to Hall but in his case he did not imagined or pretended to damage his father, he actually committed the crime. Over all, no criminal should be charged differently whenShow MoreRelatedJuveniles Should Never Be Charged As Adults894 Words   |  4 PagesJuveniles should NEVER be charged as Adults The criminal court system is the system of law enforcement that is directly involved in apprehending, prosecuting, defending, sentencing, and punishing those who are suspected or convicted of criminal offenses. While the juvenile court system, is used to address and deal with youth, who are caught and/or convicted of crimes. 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Indian persecutions Essay Example For Students

Indian persecutions Essay The text we have studied relates to the integration problem between teh white and Indian population of United States : Indians are called Native-Americans because they have lived there for centuries. White Europeans arrived in the 17th century on their land during the conquest of the new territories. The confrontation of two cultures led to many problems we will discuss later but, basically, we had the Indian culture related to nature, natural living in direct confrontation with the white industrial and urban culture. By 1950, unemployment was high among native-Americans and the Bureau of Indian Affairs believed the solution was to relocate these populations in urban areas. Indians could see brochures pushing them to leave the country for better conditions in the cities. Many left but half of them came back to their reservation !Hydroelectric power needs (les besoins en ) led ( ont conduit) to many conflicts, especially for the building of dams (barrages) as it would flood reservations. Using legal protest and open protest, the Indians succeeded in some cases but other projects flooded most of Dakota s arable land for example. Another sensitive issue is about Fishing rights. Indians have always fished for a living (pour vivre) and thus they have been granted special tribal fishing rights. These rights are now challenged by environmental groups. A movie to illustrate the story of Indians : Little Big Man , starring Dustin Hoffman is a 1971 Hollywood movie which broke all stereotypes people had about Indians : westerns : cow boys, indians. Indians have often been treated unequally and many protests were held during the 1960s and 1970s. The most surprising protest was certainly the Indian occupation of the Bureau of Indian Affairs in 1972. All Indian tribes were marching on Wasington with written demands. When they found that the accomodation they had reserved were taken, they took over the building for 7 days. This was a great moral victory for them, as most of their demands were passed. Bibliography:

King Lear Essays (1352 words) - King Lear, Fool, Cordelia, Goneril

King Lear King Lear King Lear is a play written by William Shakespeare that focuses on the relationships of many characters, some good, some evil. This is a great tragedy that is full of injustice at the beginning and the restoring of justice towards the end. The good are misjudged as evil and the evil are accepted as good. It is not until the end of the play that the righteous people are recognized as such. There is great treachery and deceit involved in the hierarchy of English rule. The great mistake in this play was made by Lear when he decided to divide up his kingdom to his three daughters. In order to determine which share each should get, he had each of his daughters give testimonies of love for him. Cordelia, the youngest, refused to go overboard with her statement. When asked for her testimony, she simply replied, "Unhappy that I am, I cannot heave my heart into my mouth. I love your Majesty according to my bond, no more no less."(I,i, ln 91-93) Lear becomes enraged and casts her off saying, "Here I disclaim all my paternal care, propinquity and property of blood, and as a stranger to my heart and me hold this from thee for ever."(I,i, ln 113-116). Some think that Cordelia was prideful, or even a fool in her response, but I believe she was simply being honest and true. Another mistake that was made in the course of the play was by the Earl of Gloucester. After being tricked by his bastard son, Edmund, into believing that his other son, Edgar, was plotting to kill him, he put all his faith in Edmund, which would eventually lead to his demise. Besides believing that Cordelia was being true and honest to her father, I think that Lear and the Earl of Gloucester were fools, regarding the banishments of their righteous children. After reading this play, I found it hard to believe that Cordelia was being anything but true in her simple proclamation of love for her father. I can't believe that Shakespeare was trying to portray her as a spoiled, prideful child. I do not believe she was foolish in her decision to restrain from trying to persuade him into giving her a larger portion of his kingdom. I think it was apparent early that Cordelia was struggling with what she was going to say to her father. In her asides she says, "What shall Cordelia speak? Love, and be silent"(I,i, ln 62), and after Regan spoke, "Then poor Cordelia; And yet not so, since I am sure my love's more ponderous than my tongue."(I,i, ln 76-78). It is obvious that she loves her father, but she can't express it the way in which Lear wants her to. Because of this, she is disowned and sent away to France. The King even refers to her as, "Unfriended, new adopted to our hate, dow'red with our curse, and strangered with our oath."(I,i, ln 203-204). Cordelia's love for her father was shown further when she received the letters concerning Lear's mental state after being mistreated by his two other daughters. It was said that, "now and then an ample tear trilled down her delicate cheek."(IV,iii, ln 12-13). Cordelia then orders for some of the French soldiers to bring Lear to her so that she can look after him before the war between Britain and the French soldiers begins. Her love was further displayed when she says, "But love, dear love, and our aged father's right. Soon may I hear and see him!"(IV,iv, ln 28-29). Because of all of this, I firmly believe that Cordelia truly loved her father and was only being honest when she refused to profess her love for him in order to rule a portion of Britain. Besides believing that Cordelia was true in her response, I also think that Lear was acting as a fool when he disowned his only loving daughter. He made a monumental mistake when he handed over British rule to his two evil daughters, Regan and Goneril. This is what eventually led to his mental breakdown and the deaths of many of the heads of Britain. If he had only chose to keep control over his kingdom or to give up control to someone trustworthy, no one would have had to suffer as they did. Some people knew he was committing a terrible folly, especially the Earl of Kent. This is apparent when he says, "Think'st thou that duty shall have dread to speak when power to flattery bows? To

Free Essays on Brave New Family

Summary and Reader Response: Kimberly Mistysyn, â€Å"Brave New Family,† A story from Writing in the Disciplines (New Jersey: Kennedy, Kennedy, and Smith, 2004). All American Families Couples are becoming families every day. When I say couples, the automatic picture you get in your head is most likely that of a male and a female. The male proposes to his girlfriend and if she says yes, a new family is started. However; if women A and women B fall in love and their relationship is going well, women A might decide to propose to women B. With the consideration that woman B says yes, another new family is started. The two women will want to start a family just the same as a male/ female family would. Families are changing throughout time and society needs to make changes to accommodate these new families. Families, weather the traditional male and female families, or those of the new age families consisting of two males or two females, are working hard for equal rights and opportunities for children. Kimberly Mistysyn’s â€Å"Brave New Family† gives a brief understanding of living in a family with a unique set of parents. She helps us to understand how times have changed from the typical family which includes a father, mother, and usually two children to current times where traditional families still exist, but so do new age families. New age families may include two mothers, two fathers, a set of mothers with a sperm donor father, or a set of fathers with a surrogate mother. This family could include any number of children. Last year, my English teacher wanted to start a family. She never told my class of her sexual preference until it became difficult for her to start that family. She and her girlfriend were having a hard time finding a father to donate sperm. To give some past information, she and her girlfriend went to California to get married. They have been married for two years and wanted to start a family... Free Essays on Brave New Family Free Essays on Brave New Family Summary and Reader Response: Kimberly Mistysyn, â€Å"Brave New Family,† A story from Writing in the Disciplines (New Jersey: Kennedy, Kennedy, and Smith, 2004). All American Families Couples are becoming families every day. When I say couples, the automatic picture you get in your head is most likely that of a male and a female. The male proposes to his girlfriend and if she says yes, a new family is started. However; if women A and women B fall in love and their relationship is going well, women A might decide to propose to women B. With the consideration that woman B says yes, another new family is started. The two women will want to start a family just the same as a male/ female family would. Families are changing throughout time and society needs to make changes to accommodate these new families. Families, weather the traditional male and female families, or those of the new age families consisting of two males or two females, are working hard for equal rights and opportunities for children. Kimberly Mistysyn’s â€Å"Brave New Family† gives a brief understanding of living in a family with a unique set of parents. She helps us to understand how times have changed from the typical family which includes a father, mother, and usually two children to current times where traditional families still exist, but so do new age families. New age families may include two mothers, two fathers, a set of mothers with a sperm donor father, or a set of fathers with a surrogate mother. This family could include any number of children. Last year, my English teacher wanted to start a family. She never told my class of her sexual preference until it became difficult for her to start that family. She and her girlfriend were having a hard time finding a father to donate sperm. To give some past information, she and her girlfriend went to California to get married. They have been married for two years and wanted to start a family...

Love Poems of the English Renaissance

Love Poems of the English Renaissance The love poems of the Renaissance are considered to be some of the most romantic of all time. Many of the most famous poets are more well-known as playwrights Christopher Marlowe, Ben Jonson and the most renowned of all, William Shakespeare. Throughout the medieval period, which preceded the Renaissance, poetry changed dramatically throughout England and Western Europe. Slowly, and with influence from movements like  courtly love, the epic ballads of battles and monsters like Beowulf were transformed into romantic adventures like the  Arthurian legends. These romantic legends were the precursor to the Renaissance, and as it unfolded, literature and poetry evolved still further and took on a decidedly romantic aura. A more personal style developed, and poems clearly became a way for a  poet to reveal his feelings to the one he loved. In the mid-to-late 16th  century, there  was a virtual flowering of poetic talent in England, influenced by the art and literature of the Italian Renaissance a century before. Here are some prominent examples of English poetry from the crest of the English Renaissance of letters. CHRISTOPHER MARLOWE (1564-1593) Christopher Marlowe was educated at Cambridge and known for his wit and charm. After he graduated from  Cambridge he went to London and joined the Admirals Men, a group of players. He soon began writing plays, and those included Tamburlaine the Great, Dr. Faustus and The Jew of Malta. When he wasnt writing plays he often could be found gambling, and during a game of backgammon one fateful night with three other men he got into a quarrel, and one of them stabbed him to death, ending this most talented writers life at the age of 29. Besides plays, he wrote poems. Heres an example: Who Ever Loved That Loved Not at First Sight?   It lies not in our power to love or hate,For will in us is overruled by fate.When two are stripped, long ere the course begin,We wish that one should love, the other win;And one especially do we affectOf two gold ingots, like in each respect:The reason no man knows; let it sufficeWhat we behold is censured by our eyes.Where both deliberate, the love is slight:Who ever loved, that loved not at first sight?   SIR WALTER RALEIGH (1554-1618) Sir Walter Raleigh was a true Renaissance man: He was a courtier in the court of Queen Elizabeth I, an explorer, an adventurer, a warrior, a poet. He is famous for putting down his cloak over a puddle for Queen Elizabeth in an act of stereotypical chivalry. So its no surprise that he would be a writer of romantic poetry. After Queen Elizabeth died, he was accused of plotting against King James I and was sentenced to death and was beheaded in 1618. The Silent Lover,  Part 1 Passions are likend best to floods and streams:The shallow murmur, but the deep are dumb;So, when affection yields discourse, it seemsThe bottom is but shallow whence they come.They that are rich in words, in words discoverThat they are poor in that which makes a lover. BEN JONSON (1572-1637) After an unlikely beginning as an adult that included being arrested for acting in a seditious play, killing a fellow actor and spending time in jail, Ben Jonsons first play was put on at the Globe Theatre, complete with William Shakespeare in the cast. It was called Every Man in His Humour, and it was Jonsons breakthrough moment. He got in trouble with the law again over Sejanus, His Fall and Eastward Ho. accused of popery and treason. Despite these legal troubles and antagonism with fellow playwrights, he became poet laureate of Britain in 1616 and is buried in Westminster Abbey. Come, My Celia Come, my Celia, let us proveWhile we may, the sports of love;Time will not be ours forever;He at length our good will sever.Spend not then his gifts in vain.Suns that set may rise again;But if once we lose this light,Tis with us perpetual night.Why should we defer our joys?Fame and rumor are but toysCannot we delude the eyesOf a few poor household spies,Or his easier ears beguile,So removed by our wile?Tis no sin loves fruit to stealBut the sweet theft to reveal.To be taken, to be seen,These have crimes accounted been. WILLIAM SHAKESPEARE (1564-1616) William Shakespeare, the greatest poet and writer in the English language, is shrouded in mystery. Only the barest facts of his life are known: He was born in Stratford-Upon-Avon to a glover and leather merchant who was a prominent leader of the town for a time. He had no college education. He turned up in London in 1592 and by 1594 was acting and writing with the play group the Lord Chamberlains Men. The group soon opened the now-legendary Globe Theatre, where many of Shakespeares plays were performed. He was one of the most, if not the most, successful playwright of his time, and in 1611 he returned to Stratford and bought a substantial house. He died in 1616 and was buried in Stratford. In 1623 two of his colleagues published the First Folio edition of his Collected Works. As much as a playwright, he was a poet, and none of his sonnets is more famous than this one. Sonnet 18: Shall I Compare Thee to a Summers Day?   Shall I compare thee to a summers day?Thou art more lovely and more temperate.Rough winds do shake the darling buds of May,And summers lease hath all too short a date.Sometime too hot the eye of heaven shines,And often is his gold complexion dimmed;And every fair from fair sometime declines,By chance, or natures changing course untrimmed.But thy eternal summer shall not fadeNor lose possession of that fair thou owst;Nor shall death brag thou wandrest in his shade,When in eternal lines to time thou growst,So long as men can breathe or eyes can see,So long lives this, and this gives life to thee.