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2013年12月ACCA考试F4真题及解析

来源：高顿网校 2015-09-06

　　问题：Chu, a suitably qualified person, was appointed as the company secretary of Do plc. Since his appointment, Chu has entered into the following contracts in the name of Do plc:

　　(a) an extremely expensive, long-term contract with Ex plc for the maintenance of Do plc’s photocopiers;

　　(b) an agreement to hire a car from Far plc which Chu used for his own, non-business related purposes;

　　The directors of Do plc have only recently become aware of these contracts.

　　Required:

　　In the context of company law, with specific regard to the authority of company secretaries, advise the directors of Do plc whether the above agreements are binding on the company. (10 marks)

　　解析：This question requires candidates to explain the implied authority of a company secretary.

　　Implied authority is the authority which derives from a person’s position. It arises from the relationship which exists between the principal and the agent and from which it is assumed that the principal has given authority to the other person to act as their agent. Thus, it is implied from the particular position held by individuals that they have the authority to enter into contractual relations on behalf of their principal and third parties are entitled to assume that agents holding a particular position have all the powers which are usually provided to such an agent. Without actual knowledge to the contrary, they may safely assume that the agent has the usual authority which goes with their position.

　　In Watteau v Fenwick (1893), the new owners of a hotel continued to employ the previous owner as its manager. They expressly forbade him to buy certain articles, including cigars. The manager, however, bought cigars from a third party, who later sued the owners for payment as the manager’s principal. It was held that the purchase of cigars was within the usual authority of a manager of such an establishment and that for a limitation on such usual authority to be effective, it must be communicated to any third party.

　　In relation to companies, there are many layers of implied authority. For example, a person appointed as managing director usually is entitled to exercise all the powers of the company. Consequently, a managing director can bind the company in any contract within its capacity, even if their actual authority has been curtailed in some way. Equally, other agents of the company have different authority, thus shop assistants are able to bind their employers to contracts within the limited area of their authority.

　　This also applies in relation to company secretaries, just as much as managing directors; the only question is the extent of the secretary’s implied authority. Although the old authorities such as Houghton & Co v Northard Lowe & Wills (1928) treated company secretaries as having very little authority to bind their companies, later cases have recognised the important role of the modern company secretary. Thus in Panorama Developments Ltd v Fidelis Furnishing Fabrics Ltd (1971), the Court of Appeal held that a company secretary was entitled to ‘sign contracts connected with the administrative side of a company’s affairs’.

　　Applying the ratio in Panorama Developments Ltd it is likely that the following results would ensue:

　　(a) The contract for the maintenance of the photocopiers may be excessively long and expensive, but there is no doubt that such a contract is within the ambit of a company secretary’s implied authority and consequently the company, Do plc, will be required to honour the contract.

　　(b) This contract is clearly in breach of Chu’s authority, but the actual contract is within a company secretary’s implied powers and, as long as Ex plc are unaware of his breach of duty, Do plc will be liable on this contract as well.

　　(c) In this case, Chu has not only clearly exceeded his actual authority, but has equally gone beyond his implied authority. In this situation Do plc will not be liable for the contract.

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