Constitution

In the early nineteenth century the United States began to split, but as mid-century came around, people became more polarized in their views and the union started to separate drastically. During the period of 1850, until 1861 when the Confederate States of America was formed, the union was clearly divided between the North and South.

Although the Constitution was not the only factor leading to sectional tension in America, there are many strong points in the North and South favoring the statement, “By the 1850’s the Constitution, originally framed as an instrument of national unity, had become a source of sectional discord and tension and ultimately contributed to the failure of the union it had created. ” Northerners, during mid-century America believed in the preservation of the undissolvable Union.

When the Constitution was framed in 1787, the founding fathers were concerned about leaving Britain and becoming a Union, as opposed to the issue of slavery that would later prevail. Henry Clay created the Compromise of 1850, which helped solve the problem of slavery in the territories (Document A). This was not included in the Constitut . . . When the Missouri Compromise was ruled unconstitutional under the Dred Scott decision, the due process clause, for the first time, was interpreted to state that people could not be denied their property, displaying that Calhoun was right all along.

It is evident that although the Constitution is the supreme law of the land, many Northerners depicted its flaws. An anonymous Georgian, although somewhat contradictory, explained, “Two Constitutional provisions are necessary to secure Southern rights upon this important question,–the recognition of slavery where the people choose it and the remedy for fugitive slave” (Document B). Sectional difficulties that lead to the break up of the Union can be traced to flaws in the Constitution, although there are other factors as well.

In events such as John Brown’s Raid, the North solemnly respected Brown, holding commemoration services in his memorial. This shows that the founding fathers thought well ahead of their time and created a Constitution that included answers to many questions, although, in general, this document eventually contributed to the collapse of the Union. President Jefferson Davis of the Confederate States of America, believing that states were sovereign over the Union, stated, The separate and independent sovereignty of each State was merged into one common government and nation” (Document H). The Constitution includes the three-fifths clause, along with and end to the African slave trade. After the fugitive slave law was enacted, many personal liberty laws were created in the North and colored people were notified, “You are hereby respectfully CAUTIONED and advised, to avoid conversing with Watchmen and Police Officers of Boston” (Document C). Just as Northerners saw flaws in the Constitution, Southerners viewed it not to be perfect as well.

President James Buchanan, a northern man with southern sympathies clarified, “As sovereign states, they and they alone, are responsible before God and the world for the slavery existing among them” (Document G). Regarding the Fugitive Slave Law, a Bostonian Transcendentalist, Ralph Waldo Emerson stated, “As soon as the Constitution ordains an immoral law, it ordains disunion…The Union is at an end as soon as an immoral law is enacted” (Document D). The constitutionality of the protective tariff was questioned during the panic of 1857, which Northerners blamed on the South.

Yet another Bostonian, William Lloyd Garrison, an abolitionist reformer exclaimed, “The Constitution which subjects them [slaves] to hopeless bondage is one that we cannot swear to support” (Document E). Although the Constitution is clearly flawed because extremist on both sides had problems with it, this document, which is the supreme law of the land, does have positive aspects. ————————————————- By the 1850’s the Constitution, originally framed as an instrument of national unity, had become a source of sectional discord and tension and ultimately contributed to the failure of the union it has created.

This was shown by ambivalent interpretations of the constitution and other important documents when assorted together. It is known that the union did not last, for there was the Civil War. If everyone could agree on what the constitution implied, then there probably would not have been a civil war. From several of the documents, there are arguments about what the constitution states. (Document E), “To the Argument, that the word ‘slaves’ and ‘slavery’ are not to be found in The Constitution, and therefore it was never intended to give any protection or countenance to the slave system, it s sufficient to reply, that no such words are continued in the instrument, other words were used, intelligently and specifically, to meet the necessities of slavery. ” This indicates that the constitution CAN be interpreted differently, and when used with other pertinent documents, can be incongruous. Those views that differentiated were of those in the North and South. The Constitution can be interpreted in many different ways, which leads to sectional discord and tension. For many reasons, the South evidently did not like what the constitution said.

There were many conflictions with the compromise of 1850, map shown in (Document A) and the fugitive slave act. Certain northerners were so against slavery and the fugitive slave act that they even posted warnings for the slaves. (Document C), [shows how kidnappers were being sent after the slaves, and how Northern abolitionists were revolting against the South’s rules and regulations. ] This fugitive slave act also helped drive the tension deeper into the Un-United States. With drama now rumbling in the American underbellies, the small weight of anything slightly bad could set off a secession bomb.

A freesoiler does not want to spread slavery, but he is okay with keeping it in a state it is already in. When the idea of popular sovereignty came about with the compromise of 1850, map shown in (Document A), those freesoilers in office were pushed harder into complex decisions over the popular sovereignty issue. (Document F) “FORCING SLAVERY DOWN THE THROAT OF A FREESOILER,” illustrates this in a very blatant text and disturbing political cartoon. All of the tension gathering, even authors were predestining the Civil War.

Ralph Waldo Emerson believed that the Constitution, (when assorted with others like the fugitive slave law or the compromise of 1850) were contradictory, and that they aid to the now inevitable seeming end of the union. (Document D) “What kind of legislation is this? What kind of constitution which covers? … I suppose the union can be left to take care of itself…. But one thing appears certain to me, that , as soon as the constitution ordains an immoral law, it ordains disunion. The law is suicidal, and cannot be obeyed.

The union is at an end as soon as an immoral law is enacted. And he who writes a crime into the statute-book digs under the foundations of the capitol to plant there a powder-magazine, and lays a train” This proves that By the 1850’s the Constitution, originally framed as an instrument of national unity, had become a source of sectional discord and tension and ultimately contributed to the failure of the union it has created. This was shown by ambivalent interpretations of the constitution and other important documents when assorted together

The Articles of Confederation did manage to successfully handle the new west erne lands which were acquired by America after the war. Following the war America gag Ned new lands and the government needed a system to divide and govern these new lands. Many of the larger colonies claimed to own these western lands due to their original charters.

B t, in order for the Articles of Confederation to be ratified and to pay off the debt from the war, t he states needed to give up their land to the national government, so that it could be sold in order to pay off the country’s debt. The large states did give up their lands to the central govern .NET (Document E). In order to govern these new lands the government needed to make new law s. One of the laws passed was the land ordinance of 1785. This new law divided up the land in the e new western territories into sections which could be sold to individual citizens.

The money received from the people who bought this land helped to pay off the debt. The land ordinance al so promoted republican ideals by providing a school for each of the new territories that we re created. Providing a school in each town allowed all people to be educated which pro meted equality. The northwest ordinance of 1 787 was passed to set up government in these n ewe territories. The Northwest Ordinance stated the requirements for any of the new territories t o become a state. In order for one of the new territories to become a state they were required to r each a given population and create their own constitution.

The Northwest Ordinance man aged to abolish slavery in the new states as well. Although the Articles of Confederation were e effective when it came to creating new states, they were not very effective at anything else. The Articles of Confederation were highly ineffective when handling commerce e. Under the Articles of Confederation it was difficult for the national government to cool elect taxes from states. When the central government attempted to place a tax on Rhode island d, they refused to pay the tax and claimed the national government did not have the right to tax them (Document A).

It was reported that the national government was only able to collect one fourth of the taxes they requested from the states. The government only received very few taxes from the states because they could not force the states to pay the taxes, and states obviously did not Want to pay taxes that were not required. Not being able to collect taxes had many negate eve consequences for the government. The government was not able to pay soldiers who fought in t he revolutionary war because they didn’t receive enough tax money from the states (Document t C).

The government owed money to the soldiers who fought in the revolution but the could not afford to pay them. Financial problems also affected the farmers of Massachusetts. As a response to crop prices decreasing and the amount Of farm foreclosures increasing Daniel Shah yes led Shay’s rebellion. Shay’s rebellion was when the Massachusetts farmers refused to p ay taxes and resisted foreclosures. After America gained independence they were no longer trade Eng as much with Britain. (Document B) prior to the war Britain had been America’s most lucubrate vive trading market.

After the war America’s population increased but the value of their ex ports to Britain did not. Generally when the population off nation increases the value of their ex ports increases because they are able to produce more and their population gives them more military power. Under the Articles of Confederation collecting taxes and trading became much h more difficult for America. America was not respected by other nations and struggled with foreign affairs under the Articles of Confederation.

After the war America gained a large amount of Ian d in the west that Britain had previously restricted from them. However the Americans were not able to access all of their new land due to occupied British forts in the west (Document D). The Americans wrote a letter to Britain requesting that the forts be vacated but the British refused. The British refused because they didn’t think the Americans were strong enough to remove them Because the Articles of Confederation did not have the power to raise an army it was imp Seibel for America to force Britain out of their land.

America also wished to gain access to the M sipping river in order to trade more efficiently. Unfortunately Spain controlled the Mississippi river and did not allow the Americans to use the river at all. America requested that Spain grant t them access to he river but they refused because they did not believe America was strong en ugh to resist (Document F). Due to the weakness of the Articles of Confederation Spain did not respect America enough to give them access to the river.

America was unable to effect Tivoli deal with foreign affairs because their government was not respected other countries. The Articles of Confederation were unable to control the common people who o W ere given too much power. After the war America struggled to keep both wealthy elites and the common people loyal to the government. John Jay believed that the wealthy c redirectors of the action world begin to lose faith in the new government (document G). A cried tort is someone who lends money to someone else in order to be bayed back in full with inter est..

A debtor is someone who owes money to others. In this situation the creditors are the w lately elites who helped find the war, and the debtor is the US government, who cannot afford to pay back the creditors in full. America cannot pay back its creditors because the Articles of Confederation were unable to collect enough taxes. The wealthy creditors began to lose faith in the government because they did not believe they would ever be bayed back. Losing support f the wealthy was devastating for America because they were needed to fund the nation.

One A intermediaries claimed that the Articles of Confederation should be refused or fixed rather t Han replaced. An analogy was used which said if a building has a problem people do not tear d own the whole building, they fix the building (document H). He argued that the Articles of C infiltration had very few flaws and they could be fixed easily. However this was not the case. The Articles of Confederation had many small problems which weakened its effectiveness. T here was also one assistant problem which was the over Reliance on civic virtue.

The Articles of Confederation c could only be effective if the states and the people demonstrated civic virtue and paired their optional taxes. However human are naturally not virtuous, but more interest De in their own self interests. For this reason the Articles Of Confederation were ineffective at con trolling the people. The Articles of Confederation were unable to control the people because of the e over reliance on civic virtue and the creditors loss of faith in the government. The Articles of Confederation were a highly ineffective first attempt at go verging the new United States.

The constitution is the fundamental principles of law that the state’s law system is base on. Regardless of where it was created, New Hampshire or Texas, the constitution always went through different processes of drafting, revising, and amending several times over the courses of history to result in the modern constitution as people look at it today. At a glance, there is Texas, a state that is known for its notorious cowboy culture and rebellious history, to be compared to New Hampshire, a quiet little state that locates in the northeast corner of the US.

In omparison and contradiction, the two states’ constitution share many similarities in their bills of rights but maintain many differences in their legislature, especially in the meeting cycles. Whether or not Texas should change its constitution in order to ensure the effectiveness of legislative session in a given time frame is still in debate. One of the major and most obvious similarities that appears in almost every state’s constitution is the freedom of religion.

In Texas constitution, this category is worded as “freedom of worship”, section 6 of article 1 states, “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No human authority ought, in any case, whatever, to control or interfere with the rights of conscience in matters of religion… ” (Texas Constitution. Art. l, sec. 6. In a like manner, the New Hampshire Constitution states, “Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained, in his peers on, liberty, or estate, for worshipping God. ” The first two sentences from each section of the two states constitutions strongly proclaim that it is the natural right of the people to worshiping any kind of deity without getting punish or being force to worship a different deity against their wish.

This similarity of religious freedom from both constitutions illustrated the state founders’ strong desire for a society in which people are free to pursuit a faith of their own. However, within these similarities there are still some important differences. To be more specific, the second sentence of religious freedom on the New Hampshire constitution does mention that the right to worship can be achieved only if “… he doth not disturb the public peace or disturb others in their religious worship. (New Hampshire Constitution. Part l. Art. 5). This statement means to say that one individual cannot use their freedom of worship to disturb other individual’s life or his or her freedom of worship. Texas constitution did not state specifically the same idea but it took into account another important element- the equality of religions: “It shall be the duty of the Legislature to pass such laws as may be ecessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship. (Texas Constitution. Art. I, sec. 6). This is one very important element that the New Hampshire constitution does not mention. Texas, in the other hand, put down in text that the government is responsible to protect every religion the same as others by passing such law to Speaking of the government structure, both Texas and New Hampshire have the basic form of government in which the structure is similar to the United States federal government. Each has three branches: legislative, executive and Judicial.

The Texas legislature, however, has one substantive difference to the New Hampshire legislature, the meeting cycle. The Texas constitution requires the legislature to meet in regular session once every two years. “The legislature shall meet every two years at such time as may be provided by law and at other times when convened by the Governor. ” (Texas Constitution. Art. Ill, sec. 5). Normally, the session held on the second Tuesday in January of odd-numbered years and may last for 140 days.

The New Hampshire constitution requires the state legislature to meet more often. Article 3 of Part II of the New Hampshire constitution states that the state legislature is to meet in session for once a year in January (New Hampshire Constitution. Part II. Art. 3); a session usually last until June. In addition, the legislature has to meet again on December of the next even-numbered year for organization purposes, bringing the number of session to three times every two years.

The difference between each state legislature’s meeting cycles is particularly stood out because Texas is geographically huge state with large population, and the fact that its meeting cycle is too far away from each other is very uncommon among other large states. The difference between Texas and New Hampshire constitutions in regard to the frequency of legislative meeting can be explain by several reasons. According to Texas former senator Will Harnet, “Annual sessions are expensive and can chase off quality law-maker that are paid as little as $7,200 a year” (Schechter).

But in contrast, meeting annually has advantages that included dealing with complex problems, inishing works on time and reducing the number of special sessions (Schechter). For a state that is the second most populous in the nation, Texas is the only large state that has legislature meet every two years, the other states are Montana, Nevada and North Dakota, all with tiny populations (Schechter). Recently, this frequency of meeting has shown its disadvantage. The most obvious example is that during the summer of 2013, Texas Governor Rick Perry has called three back-to-back special sessions (Schechter).

This puts a question mark on the Texas constitution, why ouldn’t change the legislative meeting cycle to annual if Texas law-makers are not able to get their business done on time? New Hampshire has a much smaller population than Texas and still able to meet annually without any restrictions. The legislature meeting cycle is one big problem that Texas needs to amend into the constitution, not only to save the budget from all the extra special sessions but also giving law-makers a more flexible cycle to work on many complex problems.

In the end, both Texas and New Hampshire constitution serve one and only one urpose is to maintain their societies within the law of the state and also in respect to the United Stated constitution. A society in which every individual are born with natural and unalienable rights including the right to worship, and that no human authority can restricts people from doing so. On the other hand, the differences of population, geographic and political beliefs are reflected on the word of each state’s constitution, which in this case is the difference between the legislative meeting cycles.

The Texas legislature apparently had experience the flaws of their cycle, eing said, it is now the time for the Texas government to reconsider amending their constitution, in order to create a better legislative system that is capable of getting their business to finish on time.

Bristol is a substantial shareholder in Chester-Perry Industries Ltd. A business competitor, Gun and Fames Pity Ltd, is selling in great volume a cookbook similar to one in respect of which Chester-Perry Industries holds the copyright. Bristol believes his company has incurred a substantial loss and his own shares have been reduced In value by $150,000. HIS solicitors believe an Infringement of copyright has occurred. Cycles and Pollock are the directors of Chester-Perry Industries Ltd. They state that they have decided not to litigate because they believe hat to take legal action for infringement of copyright is too expensive and risky.

Bristol is unsure whether the directors of Chester-Perry Industries have any interest in Gun and Fames Pity Ltd. On the general principles laid down Salmon’s case, can Bristol sue Gun & Fames? Issue: Can Bristol sue Gun & Fames on behalf of Chester-Perry as a shareholder in Chester-Perry? Relevant law: Salomon. Application: The House of Lords in Salomon held that upon incorporation, a company beneficially becomes a separate legal entity even though its issued shares are owned by the same person Like In Salomon.

Similarly In this question, Chester-Perry Is a company that has been incorporated and therefore, is a separate legal entity from all its shareholders. In this case, according to Salomon, Bristol who is a shareholder of Chester- Perry cannot sue Gun & Fames on behalf of Chester-Perry as a company is separate from its shareholders. Conclusion: Bristol cannot sue Gun & Fames on behalf of Chester Perry due to the principle laid down in Salomon where upon incorporation Chester Perry is considered as a separate legal entity from all its shareholders, including Tutorial 2 Bristol.

The Constitution of Big Hopes Pity. Ltd. Includes the following provisions: Rule XSL: On any Increase In capital the new shares must be offered to members In proportion to their excellent shares. John (an existing shareholder) is distressed when an allotment of a new issue is Issue: of What action can John take against Big Hopes for failing to allot new issue shares to him according to Rule xi of the Constitution? Relevant law: CA 2001. Application: s. 140(1)(a) states that a constitution of a company is a contract between the company and its company and its shareholders.

In this essence, both the shareholders are bind by the constitution. Must Big In this instance, Rule xi of Big Hopes’ constitution states that new shares be offered to existing shareholders as per their existing shares. However, Hopes failed to allot new shares to John as according to his existing shares and have therefore breached its contractual obligation in the constitution under Conclusion: John can take an action against Big Hope under s. 140(1)(a) for breaching its to contractual obligation in its constitution for failing to allot the new shares John as per his existing shares.

Tutorial 3 Q.

John, Ring, George and Paul incorporate Big Hopes Pity Ltd for their property development business. Big Hopes Pity Ltd was empowered under a provision in its constitution to appoint a managing director. However, the company did not appoint managing director, executed a contract with Vincent for the purchase of a certain property. The market price for the property subsequently collapsed. The board of Big Hopes Pity Ltd, learning of the contract, expressed their disapproval to Paul and claimed that the company was not bound by the contract.

Vincent seeks your advice as to his legal position. Issue: Is the company bound by the contract with Vincent? Relevant law: Constructive notice, Turned, and s. 129(2)(a) and (b), s. 29(5) (6) CA 2001 , Actual authority and Apparent authority. Application: Under the old principle of constructive notice, the constitution of public companies are made available for public inspection and therefore, the public are deemed well aware of the limitations on the authority of the companies’ principle will not apply here as Big Hopes is a private officers. This old company.

Furthermore, under the common law Turnaround’s case, any outsiders with companies can assume that the persons with whom they are with have the authority to contract on behalf of the companies and all proceedings have been complied with. Dealing internal In this case, the constitution of Big Hopes states that a MD should be appointed but did not state that Paul has been properly appointed as the MD. Vincent can argue that he assume that Paul has been appointed as the as per the Turnaround’s case and therefore, has the authority to contract on behalf of the company.

He also has no actual knowledge or suspicion that Vincent has not been properly appointed (Note: In test/exam, if there are any circumstances that arouse suspicion, argue using the case of Nonresident Developments). The principle of constructive notice has also been abolished by s. 130(1) of CA 2001. In dealing with companies, outsiders are entitled to make certain assumptions contained in s. 129 of ACACIA as per s. 128(1) of ACACIA. In this instance, Vincent can argue that he has been empowered by s. 128(1) to make certain s. 129 assumptions when contracting with Paul from Big Hopes. Reticular, he can assume under and that Paul has been properly appointed as the MD of Big Hopes and can therefore exercise all the customary duties of a MD which include entering into contracts on behalf of Hopes. In this essence, Vincent can assume that Paul has actual implied authority to enter into contracts on behalf of Big Hopes. Note: In test/exam, if question requires arguing on apparent/ostensible authority, use the case of Freeman Locker to support your argument). Vincent can also argue either s. 129(5) or depending on whether Big Hopes execute contracts by way of seal or without seal.

Either way, Vincent can argue that Paul has complied with all the internal proceedings when executing the contract with/without seal (e. G. Proper meeting, quorum, fixation of seal, witnessing of fixation et cetera) under either of these two sections. The exceptions under s. 128(4) CA 2001 will not apply to Vincent as he has ever known or suspected that Paul has not been properly appointed and the contract has not been properly executed. Conclusion:Big Hopes is bound by the contract with Vincent under both common law (as per Turnaround’s case whereby entitled to make certain s. 29 assumptions again, there is no evidence suggesting any when dealing with Big Hopes and exceptions under s. 128(4) that will rebut the s. 129 assumptions made by Vincent.

Tutorial 4 Q.

Maria is keen to purchase shares in Action Ltd. , but is unable to raise sufficient funds to do so. It is suggested that the company lend Maria the sum of $50,000 to enable her to complete the purchase. The directors of Action Ltd. Seek your advice as to this proposal. Issue: Can Action Ltd lend Maria the sum of $50,000? Is this considered as financial assistance?

Relevant law: s. AAA(1) CA 2001, ASIA v Adler. Application: Under s. AAA(1), a company may only financially assist a person if it (a) does not materially prejudice the interests of its shareholders and affect its ability to pay its creditors, (b) must be approved by all shareholders, and (c) exempted by s. CHIC. Therefore, before Action Ltd lends the $50,000 to Maria, it must ensure that it has comply with all the requirements in s. AAA(1). Otherwise, Action Ltd will be breaching s. AAA(1) as per the case of ASIA v Adler. In ASIA v Adler, Mr. Adler the director in HI has utilized the money of HI to financially assist his personal company PEE to purchase the shares in HI when HI was already in financial difficulty and without the approval of the shareholders. The court deemed this to be a contravention of s. AAA(1). Requirements in s. AAA(1). Conclusion:Action Ltd can only financially assist Maria to purchase the shares of Action Ltd if it satisfied all the requirements in s. AAA(1). Otherwise, Action Ltd will be deemed to have contravened s. AAA(1) as per the case of ASIA v Adler.

Tutorial 5 Q.

An opportunity has arisen to purchase land for development at Christmas Hills. The shareholders of Central Developments Ltd. Passed a resolution that the company purchases the land. However, the directors have ignored the resolution and refuse to act on it. Are the directors bound to implement the shareholders’ resolution? Issue: Are the directors of Central Developments bound by the shareholders’ resolution to purchase the land at Christmas Hills? Relevant law: Separation of ownership and management powers, Automatic Self- Cleansing, John Shaw.

Application: Under the principle of separation of ownership and management powers, the management of the company is vested fully in the board of directors despite the shareholders owning the company. Therefore, the shareholders cannot pass resolutions instructing the directors on how to manage the company. According to the cases of Automatic Self-cleansing and John Shaw, the directors as long as acting within the management powers bequeathed on them by the company’s constitution have absolute power in managing the company and the shareholders have no rights to interfere in this as per the company’s constitution.

In this event, the directors of Central Developments can ignore the resolution of the shareholders to purchase the land at Christmas Hills because purchasing of land can be considered as a type of management power and only the Conclusion: The directors of Central Developments can ignore the resolution of the shareholders to purchase the land at Christmas Hills because the directors have absolute power to manage the company including whether to purchase the land as per the principle of separation of ownership and management powers and the cases of Automatic Self-cleansing and John Shaw.

Tutorial 6 IQ.

Seven Dwarves Ltd operates nursing homes. Its directors are Sleepy, Grumpy and Dopey. They hold 30% of the shares in the company. The directors allocate 1 million new shares to certain business associates. This has upset certain shareholders who claim that the placement was made with a view to preventing a future takeover offer being made. The directors claim that the allotment was made to raise cash required for the company’s future needs. Advise the shareholders.

Issue: Advise the shareholders whether the directors have breached any of their director’s duties by allocating 1 million new shares to certain business associates? Relevant law: s. 181 CA 2001 “proper purpose” (but for test), Whitehorse v Carlton, Howard Smith. Application: Under s. 181 CA 2001, directors must act in good faith, in the best interest of the shareholders and for a proper purpose. The shareholders in claimed that the directors have issued 1 million new shares to Seven Dwarves certain business associates to defeat a takeover and therefore, the issuing of these new shares is for an improper purpose.

To determine whether the issuing of new shares is for an improper purpose (I. E. To defeat a takeover), the but for test will be applied. But for to defeat a future takeover, will the directors issue the 1 million new shares? ” (Note: Students must reason and argue on this question to reach an answer, either Yes/No). If the but for test reveals that no, if not to defeat a takeover, the directors will not issue the new shares, then obviously the reason for issuing shares is to defeat a takeover. He to prevent the wife from having majority control over the business and in the case of Howard Smith, whereby new shares were issued to prevent future takeover, the court ruled that the issuing of new shares in these cases was for improper purpose. Therefore, the directors have breached s. 181 because their purpose in issuing the 1 million new shares to certain business associates is to defeat a future takeover which is considered as improper as per the two cases discussed above. Conclusion: The directors of Seven Dwarves have breached s. 81 because they have issued cases new shares for an improper purpose (I. E. To defeat a takeover) as per the of Whitehorse v Carlton and Howard Smith.

Tutorial 7

(This question is not taken out from the tutorial questions but you can still use it as a reference for answering questions from this tutorial)

Sam and Pete are the erectors in BBC Pity Ltd. They have decided to use the 1 million dollars in the company’s bank account to invest in the shares of DEAF Ltd after doing all the necessary research and making all the necessary inquiries by themselves from the Internet and financial Journals and magazines.

Six months after the investment, the World Financial Crisis occurs and DEAF Ltd goes into liquidation causing BBC Pity Ltd to lose its 1 million dollars investment. Do the shareholders of BBC Pity Ltd have a course of action against Sam and Pete? Issue: Do the shareholders of BBC have a course of action against Sam and Pete for asking an investment that caused the company to lose 1 million dollars? Relevant law: Old subjective common law standard, Re Cardiff Bank, Re City Equitable Fire Insurance, Daniels v Anderson (objective standard), s. 80(1) and s. 180(2) CA 2001. Application: Under the old common law, a subjective standard is applied to directors when exercising their duty of care towards their companies. In both the case of Re Cardiff Bank and Re City Equitable Fire Insurance, the subjective standard is applied whereby directors were only required to exercise duty of care as per their personal level f skill and experience. However, this approach has been overruled by the modern objective standard landmarks in the case of Daniels v Anderson.

In this case, all directors are expected to exercise a duty of care that any other reasonable directors will apply in the same position and circumstance and not according to their personal level of skill and experience. This standard is further illustrated in 180(1) CA 2001 which states that directors must exercise their power with degree of care that any reasonable directors would exercise in the same circumstances, position and responsibilities. In this event, if the shareholders of BBC are able to establish that any other Sam and Pete would be breaching their duty of care towards BBC under 180(1).

However, Sam and Pete will be able to raise the Business Judgment Rule Defense (BBC) in s. 180(2) CA 2001. In order for them to raise the BBC, they must satisfy four elements;

1. They have made the business Judgment in good faith and for a proper purpose – there is no evidence that Sam and Pete have ill intentions when making the investment,
2. They have no material personal interest in the business Judgment – again, there is no evidence that Sam and Pete have gained any benefits financial or non-financial wise from the investment,
3. They have informed themselves of the subject matter of the business Judgment – there is evidence that Sam and Pete have done all the necessary research including online and from Journals and magazines,
4. Any other reasonable person in the same position and circumstances would have made the same investment as they did after doing all the research – Sam and Pete must be able to prove so. If Sam and Pete are able to establish all the elements in s. 180(2), then they will be able to use the BBC to defend themselves from breaching s. 0(1).

Conclusion

The shareholders of BBC will have a course of action against Sam and Pete if they can prove that no reasonable director will invest the 1 million dollars in DEAF and therefore, in doing so, Sam and Pete have breached their duty of care to the company under s. 180(1). However, if Sam and Pete can establish all the elements under s. 180(2), then they will be able to use the BBC to defend themselves from breaching s. 180(1). Tutorial 8 (These questions are not taken out from the tutorial questions but you can a shareholder in EX. Pity Ltd.

More often than not, most Americans look upon the constitution as the guiding light of our country. Recent events occurring in our national election no doubt prove that. There are many important amendments to our Constitution regarding our rights as citizens and the delegation of powers to branches and states. However, I believe that the 14th amendment is the most important to our constitution. When the 14th Amendment was ratified in 1868, it put a whole new spin on our Constitution, far surpassing the importance of any amendment before it or sense.

There are several crucial unconditional rights that are granted to everyone in the preamble of the Constitution. They are the rights to life, liberty, and property. We are also guaranteed a fair and due process of the law as stated by the 5th amendment. This brings our nation more closer to total equality than ever. Even though there will always be discrimination, this amendment will allow us to be protected under the law, so that wherever we are in our country, we will be protected and have the same rules applied to us that will effect our constitutional rights.

These unconditional rights, reaffirmed by the 14th amendment, are the core structure behind our Constitution. The 14th Amendment also helps promote strong centralized government. By limiting the states power, this amendment gives more power to the federal branch of government. This in turn strengthens the power of congress as well. Strengthening America with a better range in which it can affect its citizens is priceless to our country. By treating all the states equally, this amendment helps bring the states of this nation together.

One of the great qualities about this amendment is that it grants many freedoms to the states and as the country as a whole. Without the 14th Amendment, none of us would be guaranteed the rights stated in the other Amendments. Section 1 of the 14th amendment states that No state shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. This ensures that any and all citizens are free from unconstitutional state or local actions. It is hard to appreciate how life would be if the states could take away freedoms and fundamental rights as they wished.

All of our rights stated in the Constitution would then become frivolous, because the states would then simply dictate or alter our so-called rights. The 14th Amendment recognizes and discusses the most important right amongst our people in this country: who has the right to be a citizen. Section 1 of the 14th Amendment grants all people born or naturalized in the United States citizenship. Although the Constitution states that all men are created equal, before this amendments passage, only white landowners were considered citizens.

Many minorities and people without a land title were not protected under the Constitution. The United States places the values of equality and equal protection high on the social ladder. The ratification of the 14th Amendment guaranteed equal protection under the law of all citizens. Although some argue that the 1st Amendment is more pivotal in providing privileges, without the 14th Amendment, many of the residents of the United States would not be granted the benefits of the 1st Amendment. Based on the evidence presented, the 14th Amendment is, without a doubt, the most important amendment to our Constitution.

Without this Amendment, all of the other amendments would most likely be corrupted by the states we live in. The 14th Amendment is a symbol of freedom that America has given us as citizens. It was given to us not only help protect ourselves, but also to help build and bring together all of our Constitutional rights, and without this amendment, those freedoms as we know today might not have existed. That is why I believe that the 14th amendment is the most important and vital amendment to our great Constitution.

In 1918, while the rest of Europe was still engaged in World War I, a newly formed communist government was developing in Russia. Much like 18th century Americans, they had just managed to overthrow what was viewed as a tyrannical government and hoped to form a new nation free of the injustices of the previous rule. Both countries wrote a new constitution as well as a declaration of rights to facilitate this, but their respective documents had vast differences. These disparities stemmed from differences in the ideologies of the new governments.

The primary objectives of the Russian Declaration of Rights of the Working and Exploited People and the later constitution were the “abolition of all exploitation of man by man, complete elimination of the division of society into classes, merciless suppression of the exploiters, socialist organization of society, and victory of socialism in all countries. ” Americans wanted equality of opportunity and personal freedom instead of the social equality desired by the Russians.

The American constitution and Bill of Rights were created to protect personal liberties and individual freedom while the Russians were more concerned with the welfare and equality of the population as a whole. This difference is partially due to the differences in the conditions leading to revolution in each country. The American Revolution was initiated by the wealthy in response to what they considered unfair treatment by a foreign ruler while the Russian revolution was instigated by the poor in reaction to centuries of oppression and exploitation by the wealthy within their own country.

In the years leading up to World War I, social unrest among the Russian people was spreading rapidly. There was a huge social gulf between the peasants who were former serfs and the landowners. The peasants regarded anyone who did not work as a parasite. They had always regarded as all land belonging to them. They regarded any land retained by the landowners at the time serfs were freed as stolen and only force could prevent them from taking it back. By the time Russia entered the war, one peasant rebellion had already been suppressed and several socialist revolutionary movements were developing.

In February of 1917 a group of female factory workers and led a revolt in which the Tsar was dethroned, only to be replaced by a provisionary government composed of the Russian elite. When this government did not live up to its promises of an end to Russian involvement in World War I, the Bolsheviks (“majority”), a revolutionary movement led by Vladimir Lenin, overthrew the provisionary government in what bacame known as the October revolution. Upon seizing control, they immediately withdrew from the war and began constructing the world”s first ever communist government.

One of the new government”s first acts was to write the Declaration of Rights of the Working and Exploited People. On July 10, 1918 the 5th Soviet Congress approved a constitution that, together with the Declaration of Rights, formed “the single fundamental law of the Russian Socialist Federative Soviet Republic”. Unlike the American Bill of Rights, the Declaration of Rights of the Working and Exploited People seems to have been meant to apply to all of mankind eventually, as is shown in Article 4:

Expressing firm determination to wrest mankind from the clutches of finance capital and imperialism, which have in this most criminal of wars drenched the world in blood, the Third Congress of Soviets unreservedly endorses Soviet policy of denouncing the secret treaties, organizing most extensive fraternization with the workers and peasants of the combatant armies and achieving at all costs by revolutionary means a democratic peace for the working people, without annexations of indemnities, on the basis of free self-determination of nations.

Their commitment to self-determination of nations was at least partially valid in that they gave Finland complete autonomy and withdrew their troops from Persia, but this may have resulted more from a lack of resources than altruism. Limited self-determination for the nations within the R. S. F. S. R. was also provided for in that the federal government was to be confined to “promulgating the fundamental principles of a federation of Soviet republics of Russia” while leaving the citizens of each region free to decide “whether they wish to participate in the federal government… nd on what terms. “

Several other liberties were provided for in the Russian constitution, many of which appear remarkably similar to freedoms provided for in the American Bill of Rights. Article 14 provided for freedom of expression, while Article 15 ensured “genuine freedom of assembly” and Article 13 guaranteed a separation of church and state as well as freedom of religious and anti-religious propaganda.

All of these seem similar to the First Amendment of the U. S. onstitution, but they even went farther. Article 14 not only provided for freedom of press, but even promised every citizen access to “all the technical and material requisites for the publication of newspapers, pamphlets, books and all other printed material” as well as promising “their unhindered circulation throughout the country. ” Article 15, besides guarantying freedom of assembly, promised to provide heated, lighted and furnished buildings for their gatherings.

All things come at a price however, and all of these gifts from the government came at the price of true freedom of expression and assembly, as illustrated by Article 23: “Guided by the interests of the working class as a whole, the Russian Socialist Federative Soviet Republic deprives individuals and groups of rights which they utilize to the detriment of the socialist revolution. ” In America, where distrust of the government is common, this passage would have been viewed as tyrannical and would not have been allowed in the constitution.

The legislative powers of both the United States and Russia were given to a congress of elected officials. In the United States this is further divided into two houses of more or less equal power. In Russia, the All-Russia Congress of Soviets met only twice a year except in emergencies. During the rest of the year a smaller group called the All-Russia Executive Committee took on the responsibilities of the All-Russia Congress of Soviets. This group was chosen from the congress and remained accountable to it for all its actions. For decisions of major political importance they were required to check with the Congress before taking action.

Unlike the United States congress however, both of the Russian bodies also had some degree of executive power, though most executive power was relegated to the Council of People”s Commissars. This council was created to exercise “general management of the affairs of the Russian Socialist Federative Soviet Republic. ” This branch is given slightly more power than its American equivalent.

In order to fulfill its responsibilities, the Council is given the freedom to take “what measures are necessary to ensure the proper course of life of the State. This may seem like limitless power, but they were also required to immediately notify the All-Russia Central Executive Committee of any orders or decisions it made. The Council of People”s Commissars was divided into 18 Commissariats: Foreign Affairs, Military Affairs, Maritime Affairs, Interior, Justice, Labor, Social Security, Public Education, Post and Telegraph, Nationalities Affairs, Finance, Transport, Agriculture, Trade and Industry, Food Supply, State Control, the Supreme Economic Council, and Public Health.

Each division consisted of the Commissar and a small number of advisors. The All-Russia Executive Committee appointed the Commissars who then appoint advisors to their board. The appointments then had to be approved by the Executive Committee. In this way a system of checks and balances somewhat similar to the American system was put into effect.

The First of Its Kind I still remember being in an eighth grade U. S. History class back in my Junior high years. One distinct memory of that course, perhaps the most memorable of all the projects we had, came in the first month of the school year, in the curriculum’s first unit: the founding of the United States as its own nation. As the textbook timeline approached 1787 we prepared ourselves for a daunting task: memorize and recite the Preamble.

We as students would wait anxiously as, one by ne, each of our peers would step up to the front of the classroom and begin to recite from memory. Few people could recite the Preamble smoothly, but for those who stumbled, we all seemed to remember perfectly the first and last chunks: “We the People of the United States, in order to form a more perfect union… ” and “… do ordain and establish this Constitution for the United States of America. To us back in eighth grade, that missing middle section was Just a group of words to be more-or-less forgotten the next day. To our forefathers, however, that middle section was vital in reating the basis for the supreme law of the United States. Much like my peers and I in the eighth grade, our forefathers who assembled 226 years ago were faced with a daunting task for the state that they were in. At this point in our history, America was a newborn in the world, only eleven years of age.

Now left without the common cause that the Revolutionary War provided for the prior two decades, the former colonies struggled to find any sense of unity, and the world watched like adults watching an infant not their own attempt to stand upright on two feet without any assistance. Or perhaps a better metaphor would be an infant attempting to stand on his hands; Americans not only had to erect a lasting government system, but create one unlike any other. But the United States was by no means hopeless.

Our founding fathers had already put forth one attempt with the Articles of Confederation, which ultimately resulted in a loose confederation of thirteen independent states. The Articles did provide a Congress, but the provision was a handicapped version created without any real command over the states. And this was purposely so – instead of taking a radical leap of faith into a new republic, he Articles laid a steppingstone towards the Constitution so as not to provoke the states, fresh from a revolution.

This steppingstone of compromise is what I believe to be the basis of the thought process behind the Constitution. Soon after the Articles of Confederation were adopted, a convention was summoned to meet in Philadelphia to revise the Articles in response to the recent problems, such as portrayed in Shays’ Rebellion. When the fifty-five delegates assembled, however, it became clear that the Articles had to be scrapped for a new Constitution. To effectively describe in one ord the discussion that happened behind the closed doors of the Pennsylvania State House during that long summer of 1787: compromise.

The delegates, most of whom had Just recently rebelled against their mother country, wouldn’t be shaken very easily in their ideas and proposals for how the government should conduct, and compromise became a necessity. So much so that one of the biggest achievements of the Constitutional Convention was called the “Great Compromise”, creating a middle ground to please botn the large and small states, whose ideas ot representation harply contrasted.

Many other compromises defined the convention: the Electoral College was a compromise between direct and indirect presidential election, and the Three-fifths Compromise effectively represented the nation’s view of slavery (and prevented an eventual collapse of the convention due to debate over the humanity of slavery). By September 17, 1787, the first draft of the Constitution was finalized, signed, and sent out to be ratified by the states. A major problem that echoed the notion of compromise soon arose as the first draft was sent out to the states.

American people began to side with either Federalists or Antifederalists, who lobbied against each other over whether this Constitution was worthy of ratification. The greatest weapon that the Antifederalists held was the lack of a bill of rights stating the rights and freedoms that an American citizen were to have. And thus another compromise was hammered out by the drafters of the Constitution: a promise to amend the Constitution to include what we now call our Bill of Rights. With this, many of the states ratified the Constitution and allowed its adoption by June 21, 1788.

And o, save a handful of amendments to occur later in history, the United States now had a formidable government created by a Constitution actually worthy of the new republic. In it, our forefathers structured a straightforward explanation of the three branches of our government, the powers granted and denied to each department, and the difference in powers granted to the states and the powers reserved to the federal government. The strict structure of the Constitution reveals a second facet of its drafters’ thought process (the first being compromise): the formation of a lasting egime.

Compared to the history of some other countries, the U. S. has enjoyed some fair consistency in its government in the aspect that our Constitution withstands without any complete overthrow of the government. This is established in that middle section of the Preamble; six main purposes of the Constitution were clearly stated: “in order to form a more perfect union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity’.

The longevity of the Constitution that had to be part of its drafters’ intent can be easily seen in ways that live past our forefathers. Along with our Declaration of Independence, the Constitution has been a source of inspiration for many events in history – both our history as a nation and events in world history. Countless events in the U. S. have been inspired by the words written in those documents: abolitionist movements and the Civil War; the Declaration of Sentiments and the women’s rights movements; other numerous civil rights movements; court cases such as Marbury v.

Madison; controversy over acts of Congress such as the Alien and Sedition Laws. Words quoted from the Declaration of Independence and Constitution have greatly influenced pop culture, especially through music, and the notions of equality, natural rights, and Justified government have inspired events throughout the world, notably the French Revolution and the Spanish American War. The idea of a written constitution, which the U. S. Constitution started, and the ideas of government structure and natural rights have inspired constitutions of other countries.

To conclude, the history of the drafting of the Constitution and the history of its impact on the world greatly reflect the thought process that our forefathers utilized in writing it. Two aspects ot the Constitution denne the purpose witn which its drafters based its words upon: the basis of compromise and the structure with which the Constitution would last for the past 226 years. Our forefathers might not have anticipated that the Constitution last for over two centuries, but they most certainly wrote it with the intent of a strong foundation for the nation we are proud to call our home – the United States of America.