In Newborne v Sensolid (Great Britain) Ltd [1954] 1 QB 45, a company

purported to sell goods at a time when it had not been incorporated. The
company’s name was appended to the contract as “Leopold Newborne (London)
Ltd” and underneath was the name of Leopold Newborne. When it was
discovered that the company had not been formed, Leopold Newborne
commenced proceedings for damages for breach of contract against the buyers
in his own name. The Court of Appeal held that the plaintiff had never purported
to contract to sell nor sold the goods either as principal or agent. The contract
purported to be made by the company and Leopold Newborne had merely added
his name to verify that the company was a party. In the circumstances, the
contract was a nullity. In so deciding, the Court of Appeal distinguished the
principle, applied in Schmaltz v Avery (1851) 16 QB 655 and other cases, that
where a person purported to contract as agent he could nevertheless disclose
himself as being in truth the principal and enforce the contract. The only person
who had any contract with the defendants was the company and Mr. Newborne’s
signature merely confirmed that of the company. At first instance, Parker J
expressed the view that if the principle had applied the defendants could have
escaped liability if they could have shown that they would not have contracted
with the agent. The contract would have been voidable and the defendants could
have claimed rescission (page 48/49). In the circumstances, however, it was not
necessary for either Parker J or the Court of Appeal to determine the
circumstances in which an agent could claim to be the principal and thus enforce
a contract. 
Newborne v Sensolid was one of the decisions considered by the Jenkins
Committee in their report (referred to above). Their recommendation, however,
had two parts. Firstly, that the agent for a company in the course of incorporation
should be entitled to sue and liable to be sued on a pre-incorporation contract
and also that the company should be able unilaterally to adopt such a contract.
On such adoption, the liability of the agent would cease. However, before this
recommendation could be implemented, the United Kingdom became a member
of the European Community. Article 54(1)(g) of the Treaty of Rome (now article
44.2 (g) of the Treaty establishing the European Community) provides for co-
ordination of safeguards for the protection of members and others, such as
creditors, involved with companies. Before the United Kingdom became a
member of the European Community, the other members had adopted the
Directive and accordingly on the accession of the United Kingdom it was
necessary for the United Kingdom to implement this Directive. Section 9 of the
European Communities Act 1972 was designed to implement the Directive.