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CIMA BA4 Notes 2018 PDF
CIMA BA4 Notes 2018 PDF
18
Ex
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Free resources for accountancy students
BA4
Fundamentals of
Cert BA
Ethics, Corporate
Governance and
Business Law
To benefit from these notes you must watch the free lectures on the
OpenTuition website in which we explain and expand on the topics covered
You must obtain a current edition of a Revision / Exam Kit - the CIMA
approved publisher is Kaplan. It contains a great number of exam standard
questions (and answers) to practice on.
You should also use the free “Online Multiple Choice Tests” which you can find
on the OpenTuition website:
http://opentuition.com/cima/
2018 Examinations Watch free CIMA BA4 lectures 1
Contents
1. Ethics 3
3. Corporate governance 23
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8. Contract law 57
9. Employment law 69
Answers to Tests 87
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Chapter 1
ETHICS
1 Introduction
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2 Absolute v relative
There is a clear distinction between ethical theories based on absolute values and those
based on relative values
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3 Schools of ethics
Those who study ethics attempt to classify the ways in which ethics lead to decisions. The
classifications are known as “ethical schools”. Summaries of the main schools are:
Teleology/utilitarianism/consequentialism holds that any action must be viewed in terms
of the consequences that the action produces: do the consequences serve some intrinsic
good? Utilitarianism proposes that one should act in such a way to produce the greatest
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๏ You are a pharmaceutical company developing new drugs. How much testing should
be carried out before the drugs can be marketed? More testing might identify
unwanted side-effects, but more testing will delay treatment for people who are very ill.
๏ Your factory is old and inefficient and you are thinking of moving to new one with more
efficient use of energy, in another area of the country with better transport connections.
The factory’d carbon footprint will be reduced, but existing employees will lose their
jobs.
๏
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You run an airline. You transport passengers for business and leisure and to visit
overseas family members. However, airlines also cause noise and air pollution.
๏ House builders create accommodation for families, but they might build over attractive
land and displace wild-life.
๏ You are an accountant reporting to a lender on the prospects of a client. A poor report
will lead to business closure and redundancies but an optimistic report might lead to
the lender losing their investment.
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๏ IESBA: The International Ethical Standards Board for Accountants (part of IFAC)
develops ethical codes and guidance.
๏ FRC: The Financial Reporting Council is the UK regulatory body which promotes good
corporate governance and reporting. It is responsible for implementing IFAC financial
reporting and auditing standards in the UK.
๏ The Conduct Committee: (previously the Professional Oversight Board) is responsible
for overseeing the FRC’s Conduct Division in its work promoting high quality corporate
reporting. Its responsibilities include overseeing:
‣ Monitoring of Recognised Supervisory and Recognised Qualifying Bodies
[required if members of accountancy bodies are to be able to carry out audits]
‣ Audit Quality Reviews
‣ Corporate reporting reviews
‣ Professional discipline
‣ Oversight of the regulation of accountants and actuaries
๏ Auditing Practices Board: The Auditing Practices Board Limited, which is part of the
Financial Reporting Council, prepares for use within the United Kingdom and the
Republic of Ireland:
‣ standards and guidance for auditing;
‣ standards and guidance for the work of reporting accountants in connection with
investment circulars; and
‣ standards and guidance for auditors’ and reporting accountants’ integrity,
objectivity and independence, with the objective of enhancing public confidence
in the audit process and the quality and relevance of audit services in the public
interest
[Note CIMA members cannot audit unless they are also a member of another
appropriate body].
๏ CIMA: CIMA members must comply with local laws, local financial reporting and
auditing standards and with the CIMA Code of Ethics (based on the IESBA Code of
Ethics).
The CIMA Code of Ethics is covered in detail in Chapter 2
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8 Ethical codes
Many organisations and companies are developing their own ethical codes. Areas covered
can include:
๏ Equal opportunity/discrimination
๏ Bullying
๏
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Amazon.com's books, records, accounts and financial statements must be maintained in appropriate
detail..
X. Periodic Certification
The Legal Department will designate certain employees who, based on their level of responsibility or the
nature of their work, will be required to certify periodically that they have read, understand and
complied with the Code of Conduct.
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Rules based: The rules based, or compliance based, approach is based on specific checks and
punishments or sanctions. Controls are implemented by establishing checklists that
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employees are required to sign-off to provide evidence that they have complied with the
rules.
Framework based: The framework based, or integrity based, approach sets out guiding
principles, and creates a culture that promotes ethical sound behaviour. There are few if
checklists and compliance is based on trusting employees to ‘do the right thing’. Checklists
will be high-level and ask if the principles have been followed.
An analogy can be seen from driving a car. If a driver sees a speed camera (a control) then he
or she will slow down to ensure compliance with the speed limit and to avoid a fine. This is
the rules or compliance approach. The danger is that the driver then breaks the limit when
there are no speed cameras around.
The framework or integrity-based approach would have instilled into the driver that breaking
the speed limit is morally wrong and is dangerous. That driver will drive ethically even in the
absence of speed camera.
The rules-based approach allows organisations to design the checks it thinks are needed and
can provide evidence that employees have complied with the rules. However, it is unlikely
that the organisation can check compliance for every decision, both because of the enormous
bureaucracy that would be needed and because it is difficult to foresee every ethical
dilemma. The integrity-based approach is much more flexible but does require the
organisation to extend more trust to its employees that they have the moral discernment to
act ethically.
Organisational Personal
values values
However, unless there is some overlap there are going to be difficulties: the ethics and virtues
as perceived by employees will be at odds with what the organisation perceives and needs.
Successful organisations must get as much overlap as possible:
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Organisational Personal
values values
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The two sets of values can be brought towards each other by:
๏ Recruitment: try to ensure that new employees share at least some of the organisation’s
values.
๏ Training: for example courses, group discussions and role play that examine ethical
dilemmas.
๏ Ethical codes: these explain how employees should act and will also set out sanctions if
the code is breached.
๏ Corporate culture: a strong emphasis from the top on how things should be done in the
organisation
The virtues and values that organisations will, in general, like to see in their employees are:
๏ Reliability: employees should do what they say they will do, both in terms of quality and
in meeting deadlines.
๏ Responsibility: employees should be willing to be accountable for their actions and
decisions.
๏ Timeliness: meet deadlines. Do not have undue delays in carrying out tasks or
communicating with others.
๏ Courtesy: it is important to be courteous to others both inside and outside your
organisation. Discourtesy will generate neither friends, concessions nor more work.
๏ Respect: towards other people and their views – even if you think they are wrong.
10 Lifelong learning
This can be defined as:
“The provision or use of learning opportunities, both formal and informal, throughout people's
lives in order to promote continuous development and improvement of the knowledge and skills
needed for employment and personal fulfilment”
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Internet on most businesses. Unless employees and management keep up-to-date, their
organisations will probably fail.
Within the accountancy profession is important to keep up to date when preparing reports or
giving advice. For example, developments in costing, such as activity based costing, might be
more effective in producing information on which to base reliable decisions. Obviously it is
important to keep up-to-date with tax and accounting standards. In fact, it would be
unethical not to keep up to date.
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Note that is not only technical matters that change. Ethical matters also change and indeed
the changes in ethics might be backed up by changes in the law. For example, attitudes
towards bullying, discrimination, corporate social responsibility, bribery and corporate
governance have all changed markedly over the last 20 years or so. Not to keep up do date is
liable to lead towards expensive legal action.
You will see later in Chapter 2 that one of the specific ethical principles in the CIMA Code of
Ethics is that members must show professional competence and due care. That implies
keeping up to date and making use of life-long learning opportunities.
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Tests
Question 1
Which TWO of the following statements are correct?
A Teleology looks at the consequences of an actions to determine whether the action is
ethical
B Deontology looks at the motives for an action to determine whether the action is
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ethical
C Teleology looks at the motives for an action to determine whether the action is ethical
D Deontology looks at the consequences of an action to determine whether the action is
ethical
Question 2
Which of the following are likely long-term consequences of poor ethics in an
organisation? (Choose all that apply)
A Lower finance costs
B A better reputation
C Greater risk
D More customers
E Problems with regulators
F Fewer opportunities for collaboration
Question 3
A CIMA member finds that a local law requires accountants to report suspicious transactions
to the authorities. This means that the accountant has to divulge confidential information in
contravention to a general ethical duty of confidentiality.
Which duty takes precedence?
A The law takes precedence
B The accountant’s ethical code takes precedence
Question 4
What do the initials IFAC and IESBA stand for?
Question 5
What are the two approaches to establishing and administering ethical codes?
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Chapter 2
CIMA’S CODE OF ETHICS
1 Introduction
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The CIMA Code of Ethisc sets out certain fundamental principles about how its members
should behave.
It also recognizes how members could be subject to certain threats that would compromise
their behaviour and suggests ways in which members can be safeguarded against the
operation of those therats.
2 Fundamental principles
The CIMA fundamental principles are as follows:
๏ First, integrity, basically this means that members should be honest, straightforward. If
they see something is amiss, they should say so; they shouldn’t try to conceal it; they
shouldn’t ‘turn a blind eye’; they shouldn’t try to be ambiguous, they should state
things plainly. They should stand up for their beliefs.
๏ Secondly, objectivity, members should be influenced by the facts and the facts only.
They must avoid bias, conflict of interest and undue influence.
๏ Third, members should exercise professional competence and due care. They must
keep themselves up-to-date with legislation and recent developments. They shouldn’t
take on work which they are not qualified for or for which they have no skills. They must
be diligent, they must be careful. This is why it is essential that accountants, once
qualified, undertake Continued Professional Development and life-long learning.
๏ Fourth, confidentiality. Members have privileged accessed to information that is
highly confidential and which might be price sensitive. That information must be held
confidentially. For example, accounting staff will see profit figures before these are
released to investors. Members should not disclose confidential information unless they
have a legal or professional duty to do so. An example of a legal duty to disclose
information can arise if a member thinks that a client or the person they are working for
is involved in money laundering. Many countries now have very strong regulations that
require accountants to report suspicions of money laundering to the authorities.
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when they are trying to advertise their services they shouldn’t say that other members
are bad or poor. They should confine themselves to promoting what they are good at;
they shouldn’t rubbish other professionals.
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๏ Contingent fees are obviously dangerous. A contingent fee, for example, would be
where a consulltant is paid a small fee for an optimistic cash forecast, but a small fee for
a pessimistic one.
Care should be taken to ensure that you are not exposed to these threats.
Self review threats arise when you attempt top check your own work. It is very difficult to be
sufficiently sceptical about having made a mistake. Furthermore any error of principle is likely
to be repeated, so reviews should be carried out by an independent person.
Advocacy threats arise where a CIMA member or student promotes a point of view or
opinion to the extent that objectivity is compromised. An example would be where an
accountant promotes the shares in a listed company or supports the company in some sort of
dispute. CIMA members and students should take care no to overstate the case for any
decision of recommendation. You can give the facts but you mustn’t cross into giving
unwarranted support.
Familiarity threats arise because of the close relationship between the accountant and client
or employer. The close relationship can arise by friendship, family or through business
connections. There is no general definition of what’s meant by ‘close relationships’, but if you
were an auditor and your brother was the Finance Director of a client firm then there
probably is a close relationship! If however the finance director was a remote cousin of yours,
there might not be a close relationship. Note that there does not have to be any family or
legal relationship: friendship can threaten independence and integrity.
If there appears to be a close relationship that would put independence at risk (or be
suspected of introducing bias), the accountant should not carry out the work.
3.6 Intimidation
The final groups of threats are intimidation threats. These can deter an accontant from acting
properly. Examples could be threatened litigation, blackmail, or there might even be physical
intimidation, though it is to be hoped that that is rare. Blackmail could be more subtly applied
and might relate back, for example, to a period where the auditor was not acting in
accordance with the required ethical standards
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This means approaching your work with a questioning mind. It does not mean that you
expect that every piece of information you are supplied with has been deliberately falsified.
On the other hand it does not mean that you automatically believe everything you are told.
You must walk a tight-rope between belief and disbelief, being aware that we are all human
and can all be prone to:
๏ Unwarranted optimism or pessimism
๏ Making errors
๏ Misunderstanding
๏ Answering questions in a rush without really thinking about them
๏ Avoiding trouble for ourselves and colleagues
All of these frailties mean that accounting information and estimates will be, from time-to-
time, incorrect. Therefore, information needs to be checked. Certainly any information or
explanations which look odd or unfeasible needs to followed up.
Accountants should also be aware of another human frailty: dishonesty. Dishonesty also
exists and that sometimes you might be given information that deliberately misleads or
covers up problems.
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Once an ethical conflict is encountered, a member may be required to take steps to best
achieve compliance with the rules, fundamental principles and the law. In weighing
alternative courses of action, the member should consider factors such as the following:
๏ Relevant facts and circumstances, including applicable rules, laws, or regulations, must
be investigated.
๏ Determine the ethical issues involved.
๏ Investigate the established internal procedures.
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The member should also be prepared to justify any departures from internal procedures that
the member believes were appropriate in applying the relevant rules, fundamental principles
and law.
Before pursuing a course of action, the member should consider consulting with appropriate
persons within their employer.
If a conflict remains unresolved after pursuing the selected course of action, the member
should consider either consulting with other individuals for help in reaching a resolution or
obtaining advice from an appropriate professional body or legal counsel. The member also
should consider documenting the substance of the issue, the parties with whom the issue
was discussed, details of any discussions held, and any decisions made concerning the issue.
If the ethical conflict remains unresolved, the member will in all likelihood be in violation of
one or more rules or fundamental principles if he or she remains associated with the matter
creating the conflict. Accordingly, the member should consider his or her continuing
relationship with the specific assignment or employer.
CIMA has produced an ethical checklist that can help you to navigate through these
difficulties.
http://www.cimaglobal.com/Professionalism/Ethics/Responsible-business/Ethics-checklist/
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CHECK ALL
POSSIBLE COURSE
YOUR FACTS
OF ACTION
and documents
– internal and
where possible
external escalation
SEEK
professional or
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legal advice
IS IT ETHICAL
– have you IDENTIFY
considered the the affected
ethical issues parties
involved?
IDENTIFY REFUSE
which to remain
fundamental associated with
principles are the conflict
IS IT LEGAL?
affected
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(e) Have you referred to your internal Code of Ethics/Conduct and other internal policies?
5.3. Is it legal?
(a) Is the issue in question regulated by the law – national and international?
(b) does it comply with rules, policies, standards and contracts imposed by relevant
regulators/bodies and by your employer?
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(a) Integrity
(b) Objectivity
(c) Professional competence and due care
(d) Confidentiality
(e) Professional behaviour
(a) Who are the individuals, organisations and key stakeholders affected?
(b) In what way are they affected?
(c) Are there conflicts between different stakeholders?
(d) Understand the effects of non-action to the organisation, to yourself and to society.
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(a) If resolution seems unlikely, disassociate yourself from the issue – in writing if necessary.
(b) Legal advice may be needed if this affects your employment status or if you are
implicated in any way with the issue.
As a very last resort, there is external whistle-blowing (see chapter 9)
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Tests
Question 1
Which of the following is/are not one of the five fundamental ethical principles of
CIMA?
(Choose all that apply.)
A Honesty
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B Objectivity
C Professional behaviour
D Prudence
E Confidentiality
F Professional scepticism
Question 2
Which of the following are attributes of ‘professional scepticism’?
(Choose all that apply)
A Assume everyone is trying to deceive you.
B Assume everyone tells the truth.
C Be aware that incorrect information might be given inadvertently.
D Follow up inconsistencies in information.
Question 3
CIMA has published a checklist, or pathway to guide members if they are faced with ethical
conflicts.
Place the following (incomplete) steps in the correct order.
(a) Is it ethical?
(b) Seek professional or legal advice
(c) Check your facts
(d) Identify the affected parties
Question 4
What is the ultimate step that a professional accountant should take if they cannot
resolve an ethical conflict?
Question 5
A CIMA member has been asked to prepare and check a cash-flow forecast for his/her
employer. The forecast will be sent to the company’s bank as the basis for extending the
company’s overdraft.
What ethical threats might be created here?
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Chapter 3
CORPORATE GOVERNANCE
Corporate governance is the system by which companies are directed and controlled.
The problem is that although the shareholders own companies and are known as the
‘principals’, the day-to-day management and direction of companies is given to the Board of
Directors. The directors are the ‘agents’ of the shareholders and should act in the best
interests of the shareholders. In large companies many shareholders are relatively passive and
the Board of Directors is given more or less free rein to make whatever decisions they wish.
Auditing was instituted so that at least once a year, when the financial statements were
presented to the members of the company, the auditors would examine the financial
statements and give their opinion to the members of the company as to whether the financial
statements were true and fair. Without that assurance the members of the company really
would have a little idea as to whether or not the financial statements were worth relying on.
The auditors therefore examine the financial statements and this adds credibility to those
statements so that the shareholders have a much better idea of the performance of the
directors and the company.
Appoint independent
Auditor
Measure
performance Adds credibility
Financial Statements
Prepare FS
Appoint
Shareholders Directors
Own Manage
Company
Note that shareholders appoint the independent auditors, they also appoint the directors.
The problem is, however, that once directors were appointed, shareholders often didn’t take
much further interest in what the directors were doing. Scandals such as Enron, Worldcom in
the early 2000’s, and perhaps banking problems in 2008, showed that this hands-off
approach was entirely inadequate and therefore additional safeguards have been instituted
to try to ensure that directors act in the best interests of the members of the company.
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based approach and some a principles- or framework-based approach (these concepts were
discussed in the previous chapter). Some countries have enshrined corporate governance in
their laws whilst other rely on their stock exchange enforcing the rules. For example:
๏ USA: The Sarbanes-Oxley Act is part of US law. A rules-based approach with the risk of
crininal prosecution if not complied with.
๏ UK: The UK Corporate Governance Code. This is not law but is a code that companies
listed on the London Stock Exchange are expected to follow. If there are serious
departures from the code, the Stock Exchange can suspend a company’s listing (ie their
shares cannot be bought or sold on the stock exchange). The stock exchange requires a
‘comply or explain’ approach: companies have to comply with the corporate
governance code or explain why they haven’t. Explanations might not always be
accepted as reasonable or acceptable.
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๏ The corporate the corporate governance framework should ensure the strategic
guidance of the entity, effective monitoring of management by the board and the
board’s accountability to the entity and their shareholders. [This covers requirements
relating to the appointment of board members, ethical behaviour by board members
and the application of care and due diligence]
IFAC has published an International Good Practice Guidance (IGPG) Evaluating and Improving
Governance in Organizations (IFAC, 2009) (https://www.ifac.org/publications-resources/
integrating-governance-sustainable-success). The report analyses, with the use of illustrative
case studies, how professional accountants in business support their organisations in
integrating governance into the key drivers of organisational success.
It identifies eight drivers of sustainable organisational success:
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(b) evaluating strategic options that align with the organisation’s risk management strategy
and policies on internal control and recommending optimal strategies. It also requires
setting the right tone at the top in the organisation.
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through robust career development—both for the finance function and the wider
organisation. This enables the organisation to continuously meet its changing needs
The chairman’s view on what good governance means to him [or her] and his [or her]
company.
๏ How the chairman has met the challenge of leading the board and ensuring its
effectiveness.
๏ The culture of the board and whether it is open and welcoming to effective debate and
contribution from all members, including non-executive directors.
๏ Whether the governance culture is aligned with the company’s policies and procedures,
and reinforced by a measurement and incentive system.
๏ A quick reference guide to governance activities during the year and where more
information may be found.
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The company’s story needs to be told consistently to a broad audience. It must meet the
needs of:
• Fund managers, who need to understand the business model and its shorter term
returns.
• Ultimate owners such as pension funds and insurance companies, who need
confidence in management, and a longer term perspective.
• Those responsible for voting, in-house or outsourced, who need compliance data.
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Tests
Question 1
What is the name of the main act which deals with corporate governance in the USA?
Question 2
What are the five elements of CIMA’s proposals for the better reporting of corporate
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governance?
Question 3
Which of the following statements are correct? (Choose all that apply.)
Question 4
Fill in the two blanks in the sentence below:
The OECD principles of corporate governance mentions that ”… the equitable treatment of
all shareholders, including _________________ and _________________ shareholders.”
Question 5
Which organisation published an International Good Practice Guidance (IGPG) called
‘Evaluating and Improving Governance in Organisations’?
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Chapter 4
CORPORATE GOVERNANCE –
DIRECTORS AND THE BOARD
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1 Introduction
You should remember from the last chapter that corporate governance is the system by
which companies are directed and controlled. Once a company grows, and certainly for listed
companies, it is the directors who are in day-to-day control. Therefore, it should not be
surprising that corporate governance codes pay great attention to the composition and
activities of a company’s board of directors.
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Unitary boards
There is only one board and it appoints a mix of executive and non-executive directors. The
executive directors look after the day-to-day management of the company (like the
management board in the two-tier system); the non-executive directors warn and advise (like
the supervisory board in the two-tier system). However, all votes are taken by the single
board with each executive and non-executive director having a vote.
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Governance-Code.aspx
Main principles
๏ Leadership
๏ Effectiveness
๏ Accountability
๏ Remuneration
๏ Relations with shareholders
Comply or explain
The code has no force in law and is enforced on listed companies through the Stock
Exchange. Listed companies are expected ‘‘comply or explain’’ and this approach is the
trademark of corporate governance in the UK. Listed companies have to state that they have
complied with the code or else explain to shareholders why they haven’t. This allows some
flexibility and non-compliance might be acceptable in some circumstances.
Leadership
๏ Every company should be headed by an effective board which is collectively
responsible for the long- term success of the company.
๏ There should be a clear division … between the running of the board and the executive
responsi- bility for the running of the company’s business. No one individual should
have unfettered powers of decision. This means that the roles of CEO and Chairman
should not be performed by one person as that concentrates too much power in that
person.
๏ The chairman is responsible for leadership of the board
๏ Non-executive directors (NEDs) must be appointed to the board and they should
constructively challenge and help develop proposals on strategy. NEDs sit in at board
meeting and have full voting rights but do not have day-to day executive or managerial
responsibility. Their function is to monitor, advise and warn the executive directors.
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Effectiveness
๏ The board should have an appropriate balance of skills, experience, independence and
knowledge. In large companies NEDs should be at least 50% of the board; in small
companies there should be at least 2 NEDs.
๏ New directors should be appointed by a Nomination Committee to ensure a formal,
rigorous and transparent procedure for their appointment. The Nomination Committee
consists of NEDs. This provision is to prevent directors appointing their friends and
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colleagues to the board and ensures that the best people for the job are considered and
appointed.
๏ All directors should be able to allocate sufficient time to company business.
๏ There should be induction on joining the board and a programme to update and
refresh directors’ skills and knowledge.
๏ The board should be supplied in a timely manner with necessary information.
๏ The board should undertake a formal and rigorous annual evaluation of its own
performance and that of its committees and individual directors.
๏ All directors should be submitted for re-election at regular intervals
Accountability
๏ The board should present a balanced and understandable assessment of the company’s
position and prospects.
๏ The board is responsible for determining the … significant risks …and should maintain
sound risk management and internal control systems.
๏ The board should establish formal and transparent arrangements for applying the
corporate reporting, risk management and internal control principles, and for
maintaining an appropriate relationship with the company’s auditor. This means that an
Audit Committee (NEDs again) should be established to liaise with both internal and
external auditors. Before audit committees, the finance director liaised with auditors,
but this was not satisfactory because the finance director was often the person respon-
sible for accounting problems. Therefore auditors were often reporting problems to the
person who caused them. The directors are responsible for establishing an internal
control system and must review the need for internal audit.
Remuneration
๏ Levels of remuneration should be sufficient to attract, retain and motivate directors of
sufficient quality… but avoid paying more than is necessary.
๏ A significant proportion of executive directors’remuneration should be structured so as
to link rewards to corporate and individual performance. In other words, profit related
pay is encouraged. Directors should not receive high pay irrespective of company
performance.
๏ There should be a formal and transparent procedure for developing policy on executive
remuneration and for fixing the remuneration packages of individual directors. No
director should be involved in deciding his or her own remuneration. This means that a
Remuneration Committee (NEDs) should be formed to fix directors’ remuneration.
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objectives. The board as a whole has responsibility for ensuring that a satisfactory
dialogue with shareholders takes place.
๏ The board should use the AGM to communicate with investors and to encourage their
participation.
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Tests
Question 1
What are the two approaches to board structure that can be used and how does each
approach corporate governance?
Question 2
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The UK Corporate Governance Code specifies three committees, mostly consisting of non-
executive directors.
What are the three committees?
Question 3
What are the five principles/sections of the UK Corporate Governance Code?
Question 4
Is the following statement true or false in relation to corporate governance?
The Chairman of the Board and the Chief Executive Officer should be different people.
Question 5
Is the following statement true or false in relation to directors?
Non-executive directors attend board meetings but are not entitled to vote.
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Chapter 5
INTERNAL AND EXTERNAL AUDIT
1 Introduction
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As was mentioned in an earlier chapter, shareholders are the legal owners of companies. In
very small businesses, such as family businesses, the shareholders will also take part in the
day to day management of the company. However, once businesses grow, shareholders
appoint directors and managers to run their company.
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Shareholders (also known as members) are the principals and directors are the agents of the
shareholders. Agents should act in the best interests of the principals so therefore, directors
should act in the best interest of shareholders. However, this can introduce conflicts of
interest between the two parties. Shareholders want large profits but the directors might
want large salaries, generous pensions and bonuses, first class travel and expensive cars.
Companies are required to produce annual financial statements (accounts) for presentation
to their shareholders. These should show how their company has got on during the year. The
directors are responsible for producing the financial accounts and there is obviously a
temptation for them not to report results accurately or fairly. For example, directors might try
to overstate profits so as to keep their jobs or to qualify for bonuses.
Therefore, independent, external auditors are appointed by the members of the company to
scrutinise objectively the financial statements and to report to the members on whether no
the financial statements show a ‘true and fair’ view of the company’s affairs and its results.
Auditors’ conclusions are published as part of the financial statements in the audit report. The
auditors are therefore carrying out an assurance engagement.
In addition to the terms ‘agent’ and ‘principal’, ‘stewardship’ is sometimes used to describe
the duty that directors have to look after the interests of the shareholders.
The auditors are required to produce an audit report on a company’s financial statements.
These will have been produced from the financial records. Financial statements consist of:
๏ A statement of financial position
๏ A statement of profit or loss
๏ A statement of cash flows
๏ Notes to the financial statements
๏ A statement of movement in reserves
The audit report covers only the financial statements, not the other documents that might be
included. For example, companies also produce directors’ reports, chairman’s statements and
often graphs, forecasts and public relations material and combine these with the financial
statements and audit report into their annual report. For large companies this is often a
glossy booklet designed to impress shareholders and potential investors.
However, the audit report covers only the financial statements, not the other documents that
might be included.
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The prime purpose of the audit report is to state whether or not the financial statements give
a true and fair view of the financial position of the company at its year end and of its
performance during the year. Sometimes a phrase such as ‘present fairly’ is used instead of
‘true and fair’
True: implies that the financial statements are factually correct, have been prepared
according to an applicable reporting framework (such as the International Financial
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Reporting Standards) and that they do not contain any material misstatements that may
mislead the users. Misstatements may result from material errors or omissions in the financial
statements. True also implies that the financial statements are materially accurate.
Fair: implies that the financial statements present the information faithfully without any
element of bias and they reflect the economic substance of transactions rather than just their
legal form. Presentation is an important element of fairness.
For example:
The statement of financial position should show current assets and current liabilities
separately and in detail. Thus, the current assets and current liabilities figures might show:
Current assets
Inventory 10,000
Receivables 4,000
Cash 2,000
16,000
Current liabilities
Trade payables 12,000
This shows that the liquidity of the company is poor as suppliers expect $12,000 within the
next few weeks but, although inventory is high, there is not much coming from customers or
in cash with which to pay suppliers. Inventory can take a long time to be sold and to turn into
cash.
If the presentation were as follows:
Current assets 16,000
Current liabilities 12,000
Then users might have a very wrong impression about liquidity. The current ratio is 16/12 =
1.3 and usually anything >1 is regarded as probably satisfactory. The amounts are true
(correct), but concealing the large amount of inventory that contributes to the current assets
is likely to mislead ie not a fair presentation.
If the auditors cannot say that the financial statements show a true and fair view, then they
will issue a modified audit opinion explaining what the problem is.
Problems with the financial statements can arise for two reasons:
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๏ There is a material misstatement in the financial statements. This means that a figure is
materially wrong or has been incorrectly presented or disclosed.
๏ The auditors have been unable to obtain sufficient appropriate audit evidence to
support a conclusion that the financial statements show a true and fair view.
These problems give rise to three types of modified opinion:
๏ Qualified: where the misstatement or lack of evidence is material, but can be isolated.
These reports usually include the phrase ‘except for [...details of the problem...] the
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5.2 Disadvantages
๏ Cost: auditors charge for their work
๏ Time and disruption. Auditors have to ask employees questions and have to find
documents. This distracts employees form their day-to-day tasks.
๏ A feeling of not being trusted. Auditors are always looking for independent evidence
and are reluctant to take employees’ word for anything. This can make staff feel that
they are not trusted.
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6 Internal audit
6.1 Definition
other controls; a management tool which analyses the effectiveness of all parts of an entity’s
operations and management.’
(CIMA’s Management Accounting Official Terminology)
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๏ Social and environmental audits: A social and environmental audit looks at factors such
as a company's record of charitable giving, volunteer activity, energy use, recycling
waste, diversity in recruitment, non-discrimination in appointments, the standard of the
work environment, workers’ remuneration to evaluate the social and environmental
impact the company is having.
๏ Special assignments such as investigating a case of fraud
๏ Assisting the external auditors.
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Tests
Question 1
Which of the following are NOT part of a company’s financial statements that are
audited? (Select at that are relevant)
A Statement of financial position
B Director’s report
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Question 2
What phrase is used in the audit report to describe the financial statements if the
auditors find they are ‘OK’?
Question 3
What are the three types of modified audit opinion?
Question 4
Complete the following table by choosing whether the description related to external
or internal auditors
Reports to shareholders
Appointed by management
Question 5
Which of the following statement are true in relation to external audits and external
auditors? (Choose all that all apply).
A An unmodified audit opinion means that the company is a safe investment
B Auditors should find all errors and frauds
C Auditors check transactions on a test basis
D Prepare the financial statements
E The auditors often rely on testing the internal control system
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Chapter 6
ERROR AND FRAUD
1 Introduction
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All organisations keep financial records for both control, planning and performance
measurement.
If errors occur in recording, using or presenting information, the organisation is likely to be
harmed and it is therefore important to try to prevent, detect and correct errors.
Fraud implies the deliberate theft of assets, under-statement of liabilities or over-statement of
results. It can cause harm to the organisation and can mislead shareholders and other
stakeholders
2 Errors
Errors can be categorised as follows:
Errors of original 1. A receipt of $341 from a customer is both debited to cash and
entry credited to the customer as $431.
[Right accounts, wrong amounts.]
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Compensating 1. The rent account is added up as $1,000 too much and the wages
errors account is added up as $1,000 too little.
[Two errors cancel each other out.]
Some errors will not cause the trial balance not to balance. For example, errors 1, 3, 4, 5, 6, 8,
9, 10 and 11 will NOT cause a trial balance to be out because the double entry is complete
even if wrong.
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3 Fraud
Fraud can be defined as:
an intentional act involving deception to gain unjust or illegal advantage.
Fraud can happen at two levels:
๏ Fraudulent financial reporting. For example, deliberate incorrect accounting by
management to boost profits. This might be done to raise the value of the company,
perhaps with the aim of getting a high buy-out offer. Or it might be that directors’
bonuses are linked to profits and they report fraudulently high profits to obtain higher
bonuses.
๏ Misappropriation of assets. For example, the theft of cash, inventory or non-current
assets.
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We have probably all been under financial pressure and have had the opportunity to steal
goods or money from our employer. But most of us don’t because we do not possess the final
condition necessary to go through with it because we are not dishonest.
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๏ Control procedures/activities: Detailed controls that are put in place (see later).
๏ Information and communication: Keeping an eye on results and reports to spot when
something looks wrong.
๏ Monitoring: Is the system still effective? Are people operating it as they should?
The internal control system will be fully documented so that employees know how to handle
transactions, receive authorisation, safeguard assets etc. New employees should be trained in
areas of the internal control system that are relevant to them.
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Internal control systems as set out above should go a long way towards the prevention and
detection of fraud. Internal audit also has an important part to pay as much of their time is
spent evaluating and testing the operation of internal control, carrying out spot checks and
so on.
However, there is a third weapon that is available: the response of the company to fraud
when it is discovered.
The response will include establishing:
๏ How much has the fraud amounted to?
๏ Over what period was it perpetrated?
๏ How was it perpetrated?
๏ Who were the perpetrators?
๏ Who suffered losses?
๏ How can it be prevented in the future?
In addition, the company has to decide what do to with the perpetrators. Presumably they
will be dismissed. But often companies will not report the fraud to the police because this can
bring unwelcome publicity and is an admission of failings in the company’s systems.
However, a declaration that all incidents of fraud will initiate a criminal investigation by the
police can be a powerful method of preventing fraud. If potential fraudsters know that they
might face a jail sentence they will be substantially deterred from committing the fraud in the
first place.
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Tests
Question 1
What are the two levels at which fraud can occur?
Question 2
What are the three requisites for fraud?
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Question 3
What are the three approaches to fraud management?
Question 4
Complete the following table by choosing the category that best describes the error
and indicate if the error will cause the trial balance not to balance:
An invoice from a
customer gets lost in
the post
An invoice from a
customer for $541 is
entered into the
bookkeeping system
as $451
A purchase of $240 is
entered as:
Dr Purchases 240
Dr VAT 40
CR Supplier 240
Question 5
What are the seven categories of internal control procedure that were described?
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Chapter 7
CORPORATE SOCIAL RESPONSIBILITY
1 Introduction
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The function of businesses is to yield adequate returns to owners and providers of capital by
identifying and investing in promising projects. In addition to rewarding the suppliers of
capital, the projects will provide jobs and produce goods (or deliver services) that customers
want. Successful businesses will therefore cause economic prosperity – itself a virtue.
When carrying out their activities businesses, of course, must comply with the law (eg the
laws to restrict and manage pollution, or laws relating to health and safety in factories) but
corporate social responsibility (CSR) refers to going beyond what is required by the law.
Increasingly, society expects companies to assess and take responsibility for the company’s
effect on the environment and society, even if not defined by law and regulation.
CSR involves acting as a good corporate citizen, satisfying the needs of many stakeholders,
and reducing adverse effects caused by the organisation’s activities.
One definition of CSR is
‘the continuing commitment by business to behave ethically and contribute to economic
development while improving the quality of life of the workforce and their families as well as
of the local community and society at large’.
Some companies might perceive CSR as an ethical virtue; others might see it as simply being
good for business.
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7. Develop and apply effective self-regulatory practices and management systems that
foster a relationship of confidence and mutual trust between enterprises and the
societies in which they operate.
8. Promote awareness of and compliance by workers employed by multinational
enterprises with respect to company policies …
9 Refrain from discriminatory or disciplinary action against workers who make bona fide
reports to management or, as appropriate, to the competent public authorities, on
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practices that contravene the law, the Guidelines or the enterprise’s policies.
10. Carry out risk-based due diligence…to identify, prevent and mitigate actual and
potential adverse impacts …
11. Avoid causing or contributing to adverse impacts …and address such impacts when
they occur.
12. Seek to prevent or mitigate an adverse impact where they have not contributed to that
impact, when the impact is nevertheless directly linked to their operations, products or
services by a business relationship.
13. Encourage, where practicable, business partners, including suppliers and sub-
contractors, to apply principles of responsible business conduct…
14. Engage with relevant stakeholders in order to provide meaningful opportunities for
their views to be taken into account in relation to planning and decision making for
projects or other activities that may significantly impact local communities.
15. Abstain from any improper involvement in local political activities.
๏ Human rights
๏ Employment and industrial relations
๏ Environment
๏ Combating bribery, bribe solicitation and extortion
๏ Consumer interests
๏ Science and technology
๏ Competition
๏ Taxation
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Human rights in the supply chain, includes issues, such as: slavery, bonded, labour, child
labour, freedom of association, working conditions and wages, exploitation and non-
discrimination.
๏ Sustainability
Sustainability in a supply chain means operating now in ways that will not put at risk the
well-being of future generations. A good example can be seen in the manufacture of
wooden furniture where it is often stated that the wood has been obtained from
sustainable sources Suppliers are not simply chopping down hardwood trees in the
jungle. Trees are replaced and the supply of wood is (allegedly) managed so as not to
cause irreparable damage to ecosystems.
๏ Diversity
Supplier diversity actually refers to initiatives that aim to increase the number of
suppliers under diverse control (eg. ethnic-minority owned or women-owned). By
increasing the diversity of suppliers, buyers obtain access to a wide range of people
with talent which enables them to create valued products and services.
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https://www.globalreporting.org/information/about-gri/Pages/default.aspx
GRI is an international independent organisation that helps businesses, governments and
other organisations understand and communicate the impact of business on critical
sustainability issues such as climate change, human rights, corruption and many others.
GRI issues reporting standards grouped like the triple bottom line approach, into
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Tests
Question 1
Is the following statement true or false?
If a company buys from an independent supplier, then the company has no responsibility for
how the supplier operates.
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Question 2
What are the three elements of the ‘triple bottom line’?
Question 3
What does the global reporting initiative attempt to do?
Question 4
Is the following statement true or false?
“CSR simply means being a good corporate citizen by obeying the laws with respect to the
environment, consumers, and employees.”
Question 5
Is the following statement true or false?
“Directors have a legal duty to support CSR”
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Chapter 8
CONTRACT LAW
1 What is a contract?
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Definition:
A contract is an agreement, supported by consideration, made with intention to create legal
relations.
The essential elements within this definition are:
๏ Agreement. This requires:
‣ An offer
‣ Acceptance of the offer
๏ Consideration (something of value exchanged or promised)
๏ Intention to create legal relations (not just an informal arrangement)
Capacity is also needed, meaning that the parties to the contract must have the mental
capacity to enter into a legal agreement. This means that the parties must be:
๏ Over 18 (in the UK), unless the contract is for necessities.
๏ Of sound mind (including not being under the influence of alcohol or drugs).
2 Offers
2.1 What is an offer?
An offer is made by the offeror, who will be bound by that offer if it accepted by the offeree.
Offers can be:
๏ Expressed, such as if you said to someone “I will sell you this car for $6,000.”
or
๏ Implied, such as bidding at an auction, or taking an item to a shop check-out and
allowing it to be scanned and charged to your account.
Note: English law, which is used as the basis for law in this paper, is often based on legal cases
which form precedents ie legal examples that are followed by judges in subsequent cases. We
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illustrate the cases here to give examples of the rules, and to add some interest, but you do not
have to remember the details of the cases.
The company advertised a flu remedy, the Carbolic Smoke Ball, and said that they would give
compensation if any customer caught flu despite using it.
Miss Carlill bought the product, caught flu and claimed her compensation. The manufacturers
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claimed that there was no contract because the offer had been made to the world.
Held: there was an offer that Miss Carlill had accepted by using the ball. The compensation
was payable.
An offer must be distinguished from an invitation to treat. This is where one party makes it
known that they are ready to receive an offer. For example, products on supermarket shelves
with prices attached do not constitute offers: these are invitations to you to offer to buy the
articles by placing them in your basket and proceeding to the checkout. Similarly, sales
adverts in catalogues, newspapers and on the Internet are not offers: they are invitations to
treat.
Case: Partridge v Crittenden (1968)
Partridge advertised the sale of wild birds. He was charged with offering birds for sale
contrary to a law protecting certain species.
Held: It was held that he was not offering birds for sale but had made an invitation to treat:
buyers would offer to buy them. He was not guilty of the alleged offence.
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Hyde offered to sell his farm for £1,000. Wrench made a counter offer for £950, which Hyde
refused. Wrench then said that he would accept the £1,000 offer after all, but Hyde then
refused to sell.
Held: Hyde was entitled to refuse to sell because his offer had been terminated by the
counter-offer.
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On 1 October Van Tienhoven & Co posted a letter to Byrne & Co offering to sell a product.
Byrne and Co got the letter on 11 October and telegraphed acceptance immediately.
However, on 8 October Van Tienhoven & Co had sent another letter withdrawing their offer,
and so they refused to go through with the sale.
Held: It was held that the withdrawal of an offer is not effective until it had been successfully
communicated to the offeree. Acceptance by the offeree before they receive notice of the
revocation will be considered a valid acceptance
Note that is can be difficult to revoke an offer if it had been made to the whole world. Such
contracts are called unilateral contracts. The difficulty is in ensuring that everyone who saw
the offer also sees the revocation and also that they have not begun to carry out what was
required – which would imply acceptance of the offer. For example, someone offers a reward
for finding a lost pet, but a week later decides to withdraw that offer. In the meantime,
someone has begun looking for the pet and finds it (after the attempted withdrawal) then
claims the reward. The offer of the reward cannot be revoked with respect to the person who
finds the pet.
3 Acceptance
3.1 What is acceptance?
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or telephone message recorded outside business hours then acceptance would not be
effective until the business opened.
๏ Emails: Probably still developing, but it seems that acceptance is communicated when
received by the offeror’s email system
Grant applied for shares and the letter accepting his application was posted. However, the
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letter was lost in the post. Later Grant was required to pay for the shares.
Held: It was held that the contract to buy shares was formed when the acceptance letter had
been posted.
A man offered to buy a horse, saying to the seller that if he heard nothing by the weekend he
would consider the horse his. The horse was, however, sold instead at an auction and the
auctioneer was accused of selling a horse that had been already sold to someone else.
Held: There was no contract as the contract had not been accepted. Silence is not
acceptance.
4 Consideration
4.1 What is consideration?
Offer and acceptance are not enough to form a contract: consideration is also needed. This
means that both sides of the contract must give or do something for the other side (or
promise to do so). The exchange of considerations could be:
๏ Money for goods
๏ Goods for goods
๏ Money for a service
๏ Money to escape an obligation etc
If the consideration is given at the time the contract is made (eg buying goods in a shop) it is
known as executed consideration. If the consideration is the promise to do something in the
future (eg agreeing to work for someone for a salary, starting in a month) it is known
executory consideration. For consideration to be valid it has to comply with a number of rules
set out below.
Past consideration refers to value that was promised before the contract was negotiated. So,
if you tidy an elderly neighbour’s garden and she then promises that she will then pay you
$20, the payment cannot be enforced because tidying the garden was not dependent on
receiving $20. The tidying is on the past.
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A man moved into his deceased father’s house temporarily and repairs costing £488 were
carried out. The man and his brothers and sisters were to inherit the house equally, so the
brothers and sisters signed a document promising to reimburse £488 when the house was
sold. However, no payment was made.
Held: The repairs had been done before any agreement to share costs so there was no
enforceable contract.
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An action to enforce a contract or to claim damages can only be enforced by someone who
has given consideration.
A couple were getting married. The two fathers each pay the couple a sum of money. Both
fathers died and the bride’s father had not paid the amount promised. The groom claimed
against the estate of the bride’s father.
Held: The claim failed because the groom was not party to the agreement and had given no
consideration: the agreement had been between the two fathers.
This means that the consideration given must have some value (sufficient) but does not need
to match or be even close to the value being received (does no need to be adequate).
Case: Chappell and Co Ltd v Nestle and Co Ltd (1859)
Nestle ran a promotion in which customers could send in three chocolate bar wrappers and a
small amount of money and receive a vinyl record in exchange. For complicated copyright
reasons it had to be decided whether or not the wrappers formed part of the consideration –
even though thrown away by Nestle.
Held: It was held by the court that the wrappers were part of the consideration The wrappers
had some value to Nestle because insisting that customers enclosed them would mean that
sales would be boosted.
Collins was required by law to appear in court as an expert witness in a case involving
Godefroy who promised to pay Collins a sum of money for his time.
Held: Collins had no claim. He had a legal duty to attend court so had done nothing else for
the payment promised.
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Foster agreed to smuggle whisky into the USA during prohibition. Payment was not made.
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Held: Court the court would not enforce the contract because the consideration (ie arranging
to smuggle) was illegal.
Sometimes consideration is not needed in the formation of a valid contract. These contracts
are known as ‘speciality’ or ‘deed’ contracts, and they are made under seal. Promises under
seal are called ‘covenants’ and are enforceable even though consideration was not given.
For example, a grandparent could promise to fund a grandchild at university. This would be
unenforceable unless the promise is given in a deed, which is a formal document that
requires signatures and witnesses.
Three women lived in the same house and regularly entered a newspaper competition,
which required the listing of eight items in order of merit. Each woman made a list, and the
three entries were submitted on one form. There was no fixed arrangement about paying
the entry fee and posting the form but the form was submitted in the defendant’s name.
One of the lines won £750, which was paid to the defendant and the plaintiff sued to
recover a third share of this.
Held: The judge held that there was evidence of an agreement to share the winnings, and
that this was intended to be legally binding.
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A term is any provision that is part of a contract. Terms specify the details about what each
party has promised to do. Most terms are expressly agreed between the parties but there can
also be implied terms.
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A condition is vital to a contract and if breached will give the innocent party the right to
repudiate (terminate) the contract and to claim damages.
A warranty is less fundamental than a term. The breach of a warranty will not cause the
contract to end, but can give rise to damages.
The distinction can be a fine one as these two cases show (same year, both opera related!):
Case: Poussard v Spiers (1876)
Mme Poussard was an opera singer who contracted to perform for three months. Because
of illness she missed the opening night and the next three. Spiers replaced her with another
singer and claimed that the contract with Poussard had ended.
Held: Madame Poussard was in breach of condition because she missed the opening night
which was the most important performance because reviews of the production would be
based on this night. Spiers were entitled to end to contract.
Bettini was an opera singer who contracted to perform for three months. Because of illness
he missed a number of days of rehearsals and Gye replaced him.
Held: Missing several days of rehearsals was not vital to the contract so Bettini was in
breach of a warranty only. Gye was not entitled to end the contract.
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As mentioned above most terms will be expressly negotiated by the parties to the contract,
but some terms are implied by custom, fact or law.
๏ Custom. For example:
The claimant, a tenant farmer had planted seeds, but before the harvest the tenancy was
terminated. The tenant billed the landlord for the costs of seeds and the value of the labour.
The landlord refused to pay claiming that there were no terms in the contract that covered
this payment.
Held: The tenant was entitled to payment because that was the customary procedure in
tenancy terminations.
๏ Fact.
Terms implied as fact are based on the assumed intention of the parties and it is
assumed that these terms would have been included had the parties thought about it
at the time.
Case: The Moorcock (1889)
A ship was moored at the defendant's wharf. When the tide went out the ship became
damaged by rocks. The claimant claimed damages from the defendant but the defendant
argued that there was no term in the contract about the condition of the river bed.
Held: The court implied a term in fact, that the river bed would be safe for mooring: it made
no sense to have the contract without such a term.
๏ Law.
For example, the law gives protection to consumers against retailers and tenants
against landlords.
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7 Misrepresentation
7.1 What is a misrepresentation?
A misrepresentation is a false statement of fact or law which induces one party to enter into a
contract.
Note the requirements. The statement must be:
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๏ False.
๏ Relating to fact or law.
๏ Induces one party to enter a contract.
There are three types of misrepresentation:
๏ Innocent.
๏ Negligent.
๏ Fraudulent.
Contracts based on misrepresentations are voidable, if wished, by the innocent party –
meaning that the parties are returned to their original positions.
There has to be a false statement about a fact or law; a statement about future intentions is
no a misrepresentation unless there had been no intention of carrying out the action. A
statement of opinion will not be a misrepresentation unless the utterer knew the facts and
‘opinion’ was an attempt at cover-up. Silence will not generally amount to a
misrepresentation but smiles and gestures can do.
However, there are some contracts where there is a duty of ‘utmost good faith’ (“uberrimae
fidei”) or there is a duty of good faith (fiduciary duty) where all material facts have to be
disclosed. For example, if you were taking out life insurance you have to disclose all previous
health problems even if the insurance company does not specifically ask about them.
Half-truths can be misrepresentations. Also if a statement becomes false later the change in
circumstances must be disclosed.
A man buying land to use as a sheep farm asked the seller how many sheep the land would
hold. The seller had not kept sheep on the land but estimated that 2,000 sheep could be
supported. Based on this statement the land was purchased. However, the estimate turned
out to be too high and an action was brought for misrepresentation.
Held: The statement was a statement of opinion and not a statement of fact and therefore
not an actionable misrepresentation.
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A company issued shares stating in the prospectus that the capital raised was going to be
used to expand the company. In fact, the company had cash flow problems and the money
was going to be used to pay the company’s creditors.
Held: Although the prospectus contained a statement of future intent, because the
company had no intention of using the money in this way it had made a misrepresentation.
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After establishing that a false statement of fact or law has been made, it is then necessary to
show that the statement induced one party to enter the contract. There is no
misrepresentation if the statement had been ignored, disregarded or was unknown to the
party affected.
A preliminary agreement was made for the purchase of an estate that generated income.
The accounts supplied by the defendant were checked by the claimant’s own accountants,
who were satisfied they were accurate, and so the claimant completed the purchase. In fact,
the accounts had exaggerated the income generated by the estate and the claimant
brought an action for misrepresentations.
Held: The claimant was unsuccessful. By getting his own experts to check the reports he
had relied on his own judgement and the work of his own experts rather than on what was
said by the defendant.
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If a director exceeds his or her powers then that director can incur personal liability, but can
be relieved from this if the board subsequently ratifies (approves) his or her actions.
If a director’s conduct amounts to negligence, breach of duty or breach of trust, the
shareholders must ratify the director’s actions.
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Tests
Question 1
What are the four essential elements of a valid contract?
Question 2
Which two of the following statements are true?
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Question 3
Which of the following is the more fundamental and vital to a contract?
A Warranty
B Condition
Question 4
Are the following statements likely to be a misrepresentation?
A “The car has been regularly serviced and has never been in an accident.” [In fact the car
was rarely serviced and had been repaired after a serious accident]
B “I think this model was one of the best made by Ford.”
[In fact, most motoring journalists though this model was poor and unreliable]
In both cases the buyers of the cars decided to buy because they were looking for a reliable
vehicle.
Question 5
Is there an enforceable contract in the following situation?
1/3/2018: Offer communicated to the buyer by telephone
5/3/2018: Buyer posts acceptance
5/3/2018: Seller revokes the offer by post
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Chapter 9
EMPLOYMENT LAW
1 Employment
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2 Employment contracts
2.1 Terms
A written statement can be made up of more than one document but the principal statement
will include
๏ The employer’s name.
๏ The employee’s name, job title or a description of work and start date.
๏ How much and how often an employee will get paid.
๏ Hours of work (including weekend and shift work details).
๏ Holiday entitlement.
๏ Sick pay entitlements and arrangements.
๏ Where an employee will be working.
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There is now equal opportunity legislation in many European states aimed at anti-
discrimination with respect to employment, whether it’s engaging people, promoting them
or paying them.
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3.2 Diversity
Diversity of employment is ensuring that the composition of the workforce reflects the
population as a whole. There are sound reasons for diversity.
๏ You’re likely to attract a wider range of candidates if you are known as an employer who
embraces diversity. Diversity means more than diversity in race or sexual diversity; it can
also mean offering people part-time work or allowing them to work from home. If you
can offer part-time work or home working you may well get additional good candidates
worthy of consideration. So why reduce the field by putting unnecessary restrictions?
๏ A diverse workforce brings a variety of skills. If you employ people just like yourself,
you’ll probably get skills just like yours.
๏ The diverse workforce might better reflect customers and clients so your customers and
clients are likely to feel more comfortable.
๏ You may be able claim the moral high ground by having a diverse workforce and this of
itself may be attractive to customers, clients, and potential employees.
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3.4 Whistle-blowing
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๏ Reasonably believe you are making the disclosure to the right prescribed person.
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Organisations must ensure that they have policies in place governing employees’ use of
social media – not only because of the damage it can cause but because employees might
spend too long on various applications rather than getting on with their work.
4 Data protection
4.1 Introduction
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Huge amounts of data about employees, customers and suppliers can now be easily stored
on IT systems. This has the following implications:
๏ Is the data correct and up-to-date?
๏ Is it held safely?
๏ What damage could be caused if the system was ‘hacked’ so that others could access it?
๏ Is the data relevant to the decisions being made using it?
Data and IT are now recognised and major strategic resources, and like all major assets must
be protected and used properly.
All machines and the network should use anti-virus software and firewalls to prevent hacking
or loss or corruption of data. Employees should be trained about the dangers of downloading
material (particularly unsolicited material) from the Internet and using USB sticks that can
pass viruses from machine to machine.
Data should be regularly backed up and the copies kept securely at a separate location. If the
company is very IT dependent it should have a disaster recovery plan that will allow
processing to resume quickly even if their IT system has been destroyed, eg by flood, fire or
act of terrorism.
Many countries now have data protection legislation to safeguard the use of personal data. In
the UK, it is the Data Protection Act 1998 and this implements an EU directive and lays down
the following principles (shared in the legislation of many countries):
๏ Data shall be processed fairly and lawfully.
๏ It can be obtained for only one or more specified and lawful purposes.
๏ It mustn’t be excessive to what’s required.
๏ It must be accurate and kept up-to-date.
๏ It mustn’t be kept for longer than necessary.
๏ Personal data shall be processed only in accordance with the rights of data subjects. The
data subject is a person about whom the data is held and that person has certain rights.
For example, they have a right to see the data and they have a right to insist that it’s
corrected. The people holding the data have to register with a government body and
there they have to say what data is held, why it is held and to whom it might be
supplied.
๏ Appropriate measures shall be taken against unauthorised and unlawful processing and
also care has to be taken over the accidental loss or damage to personal data.
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๏ Personal data must not be transferred to a country or territory outside the European
Economic Area unless there is similar legislation giving similar protection in that area.
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Some companies establish and publish a health and safety policy. This will usually have the
following sections:
๏ First, a statement of the principles.
๏ There will then be a section on certain procedures, perhaps relating to fire safety
procedures.
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๏ They may emphasise how important it is to comply with the law, and in some cases
state what is necessary to comply with the law.
๏ There may be a section on the detailed instructions about operating machinery.
๏ A section dealing with the training requirements, and perhaps the qualifications
needed to ensure that health and safety policies are properly implemented.
These may be needed to address issues of both misconduct (such as poor time-keeping or
health and safety breaches) and poor performance. It is important for disciplinary procedures
to be handled properly because otherwise, if they lead to dismissal, it is likely that
employment tribunals will find the dismissal unfair.
Initially there will be an informal talk with the employee and that might be enough to correct
performance.
If that doesn’t product results, then there should be a verbal warning. This can be informal
(not entered on the employee’s record), or formal (entered on the employee’s record).
If improvements are still not made (and in some cases time must be given for this) then there
will be:
๏ First written warning
๏ Second (final) written warning
๏ Suspension/demotion/dismissal
Some acts, termed gross misconduct, are so serious that they may justify dismissal without
initial warnings. But a fair disciplinary process should always be followed, before dismissing
for gross misconduct. A fair disciplinary procedure will follow the following steps:
๏ Establish the facts. It is important to carry out investigations of potential disciplinary
matters promptly to establish the facts of the case. This might require an investigatory
meeting with the employee before proceeding to any disciplinary hearing. In others
cases the investigation stage will be the collection of evidence by the employer for use
at any disciplinary hearing.
๏ Inform the employee. If there is a disciplinary case to answer, the employee should be
notified of this in writing with enough information about the alleged misconduct or
poor performance allow the employee to prepare a response at a disciplinary meeting.
The notification should also give details of the time and venue for the meeting and
advise the employee of their right to be accompanied at the meeting.
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๏ Hold the disciplinary meeting. This should be held without unreasonable delay whilst
allowing the employee reasonable time to prepare their case. The employer should
explain the problem and go through the evidence that has been gathered. The
employee should be allowed to answer any allegations that have been made and to ask
questions, present evidence and call relevant witnesses.
Workers have a statutory right to be accompanied by a companion where the disciplinary
meeting could result in:
๏
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The law increasingly gives employees protection. Health and safety was one aspect of that, as
are the laws governing equal opportunities. Here we deal with the termination of
employment.
Employment can be ended in three ways:
๏ Retirement
๏ Resignation
๏ Dismissal.
There are three forms of dismissal:
๏ Termination by the employer (sacking)
๏ Ending a fixed term contract without renewal
๏ Constructive dismissal. This is where the employer’s behaviour entitles the employee to
presume he or she has been dismissed.
Wrongful dismissal is when the dismissal breaches the contract of employment, for
example, not giving the employee the agreed amount of notice. A more serious problem is
unfair dismissal, a part of the law that gives the employee some protection as it is assumed
that dismissal is unfair unless the employer can prove it to have been fair.
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๏ Other substantial reasons: for example, the sales director is married to the sales director
of a rival.
Dismissal is automatically unfair if it is because of:
๏ Pregnancy.
๏ Membership of a trade union.
๏ Carrying out health and safety procedures.
๏ Insisting on employment contracts and payslips.
Disputes about dismissal can be heard by an employment tribunal (effectively a court). If the
tribunal finds for the employee, then there are three possible remedies:
Reinstatement. The employer gives the employee the old job back. However, you’ll
understand that usually the old job won’t be available anymore because it will have been
given to somebody else.
Re-engagement. The employee is given a job comparable to the old one. Of course, there
might not be a suitable job and again you’ll realise by this stage of events the employee and
the employer probably aren’t on best terms anyhow.
Compensation. This is by far the most common remedy and sometimes the compensation
can be very high if it’s found that the employer has acted very badly.
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Tests
Question 1
Which one of the following is true?
A Employment means a contract for service
B Employment means a contract for services
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Question 2
What does the implied term ‘fidelity’ mean?
Question 3
What are the three types of illegal behaviour identified in anti-discrimination
legislation?
Question 4
What is the distinction between ‘bribes’ and ‘facilitation’ payments?
Question 5
What are the three ways in which employment can end?
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Chapter 10
BUSINESS ORGANISATIONS
1.1 Introduction
Most businesses start life with a sole trader structure. This means that a person simply begins
to trade with very little formality. There is no legal distinction between what the business
owns or owes and what its owner owns or owes. This means that the owner has unlimited
liability for the debts of the business. If the business fails, people owed money by it can
pursue the owner’s personal assets.
The owner puts capital into the business, the business trades and the owner can take out
profits as drawings. The owner pays income tax on the profits made by the business.
The business assets, including goodwill can be sold to a new owner but, strictly, this means
that the original business has ceased and a new on starts with the new owner. A sole trader
business automatically comes to an end if the sole trader dies. The business may still have a
value – stock, buildings, equipment and goodwill, but the business itself will legally cease.
The business assets will form part of the sole trader’s estate and pass on to beneficiaries
under the terms of the will.
1.3 Partnerships
If two or more people trade together with a view to profit, then a partnership is formed. Each
partner will contribute agreed amounts of capital and profits are shared according to
whatever agreement has been made between them. Each partner has unlimited liability for
the debts of the business.
As with sole traders, tax on partnership profits is paid by the business owners through their
income tax.
Unless provision is made in the partnership agreement, the partnership will cease on the
death of a partner and the deceased partner’s estate becomes entitled to their share of the
business. The remaining partners will have to pay the deceased partner’s estate the value of
the deceased’s share.
Many countries now allow the formation of limited liability partnerships which operate like
partnerships, but which also offer the partners limited liability for the business’s debts.
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Limited companies require more formality to establish. They have to be registered with the
relevant government organisations (in the UK, The Registrar of Companies). The most
common type of company is one limited by shares. This means that shareholders’ liability is
limited to the value of their shares. Note that the liability of a limited company for its debts is
unlimited: it is the liability of the shareholders that is limited.
Limited companies (or incorporated bodies) are known as ‘legal persons’ (or ‘persona at law’).
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They have a legal existence that is separate from their owners. In particular they can:
๏ Own property in their own name
๏ Be liable for their own debts
๏ Sue and be sued
๏ Face criminal charges (eg if an employee were injured)
๏ Pay their own tax (corporation tax).
Many large limited companies are listed (or quoted) on stock exchanges where their shares
can be freely bought and sold by investors. A listed companies’ shares have a share price that
depends on supply and demand for those shares. Typically, these prices vary frequently and
the latest prices can be seen in the financial press or on the internet. This lets investors see
immediately what their shares are worth.
Shareholders can receive a share of the company’s profits if the company directors decide
that the company should pay a dividend. Dividends are defined as a payment per share
owned. The shareholders will also benefit if the value of their shares increase so that they
make a profit when the shares are sold.
Usually limited companies are profit-seeking, but don’t have to be. For example, a charity or
school could use this legal structure.
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๏ Raising finance: if a limited company does well it can be listed on a stock exchange
and it then has potential access to a huge amount of funding from a wide range of
investors.
Any person or corporate body that adds their name to the memorandum during the
company formation process will immediately become a member (shareholder) of that
company. Details of all members are registered with Companies House and displayed on the
central public register, which is available to everyone online.
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Most companies adopt model articles (ie standard articles) but the articles can vary from
company to company. The Articles are primarily to do with the internal matters of the
company: rights and duties of shareholders and directors.
The contents of the model articles include the following matters:
๏ Directors’ powers, responsibilities, decision making (eg how many have to be present at
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Salomon formed a limited company to take over his business. He was the majority
shareholder but also lent money to the company as a secured creditor. The company failed.
Salomon’s debt was safe because it was secured on company assets but there was nothing
left for the unsecured creditors who then attempted to claim their money from Salomon,
asserting that Salomon and the company were one.
Held: Salomon and his company were separate. The unsecured creditors could claim from the
company but not from Salomon personally.
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Macaura owned a forestry company. He insured the timber against fire, but in his own name.
The forest was destroyed by fire and the insurance company refused to pay out.
Held: To insure an asset you must have an insurable interest in the asset (eg ownership).
Macaura owned shares in the forestry company; the forestry company owned the trees.
Macaura therefore did not have an insurable interest in the trees because he did not own
them, so the insurance company did not have to pay out.
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The distinction between the company and its owners is sometimes called the ‘veil of
incorporation’. However, the veil of incorporation can be lifted (or pierced) in some situations.
This means disregarding the separate personality of a company and occurs when the court
applies an exception to the rule in Salomon v. Salomon.
For example:
Horne was an employee who, in his employment contract, had agreed not to compete with
his employer, Gilford Motor Co. Horne left and formed a company and caused his company to
compete. He claimed that he had not broken his agreement because it was the company (a
separate legal entity) not him who was competing.
Held: An injunction to stop the competition was granted because incorporation should not
be used to evade legal responsibilities.
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Tests
Question 1
Which TWO of the following are true in respect of a limited liability company?
A The company has unlimited liability for its debts
B The company has limited liability for its debts
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Question 2
What are the two documents that make up a company’s constitution?
Question 3
What is mean by the ‘veil of incorporation’ and in what circumstances can it be ‘lifted’?
Question 4
When a company makes profits, who is taxed on those profits: the company or the
shareholders?
Question 5
Which of a sole traders or a limited company’s affairs are more public?
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ANSWERS TO TESTS
Chapter 1
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1 A, B
2 C, E, F
3 A
4 IFAC = International Federation of Accountants;
IESBA = International Ethics Standards Board for Accountants
5 (1) Rules/compliance/procedural based codes.
(2) Framework/integrity/principles based codes
Chapter 2
1 A: the principle is Integrity, not honesty
D: important but not an ethical principle
F: important but not an ethical principle
2 C, D
3 Check your facts – is it ethical – identify the affected parties – seek professional or legal
advice
4 Withdraw from the conflict.
5 Self-interest (the company might fail and the accountant’s job disappear if the forecast
is not optimistic).
Self-review – the accountant has to check his/her own work.
Possible intimidation depending on the pressure from management
Possibly familiarity as the accountant will be relying on estimates produced by
colleagues such as the sales team.
Chapter 3
1 The Sarbanes-Oxley Act
2 Tone from the top, how the board works as a team, key actions of the board and its
committees, board effectiveness, communication with shareholders.
3 C, E
4 Minority, foreign
5 IFAC
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Chapter 4
1 Two-tier; unitary. Twe-tier has a supervisory and management board; unitary has non-
executive direstors on the single board.
2 Nomination committee, audit committee, remuneration committee.
3 Leadership, effectiveness, accountability, remuneration, relations with shareholders
4 True
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5 False
Chapter 5
1 B, E
2 True and fair (or fairly present)
3 Qualified, adverse and disclaimer
4
Appointed by management X
5 C, E
Chapter 6
1 Financial statement fraud; misapporpriation of assets
2 Motive/incentive, opportunity, attitude/dishonesty
3 Prevention, detection, response
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An invoice from a X
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An invoice from a X
customer for $541 is
entered into the
bookkeeping system as
$451
A purchase of $240 is X X
entered as:
• Dr Purchases 240
• Dr VAT 40
• CR Supplier $240
5
๏ Segregation of duties
๏ Physical
๏ Authorisation and approval
๏ Management and supervision
๏ Organisation
๏ Arithmetic and accounting
๏ Personnel
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Chapter 7
1 False. There might be no legal responsibility but the behaviour of suppliers can taint
companys buying from them and buyers can therefore bring pressure to bear on their
suppliers to behave better,
2 Profit, people, planet or profit, social, environmental.
3 GRI is an international independent organisation that helps businesses, governments
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Chapter 8
1 Offer, acceptance, consideration, intention to create legal relations. (You could also
mention ‘capacity’)
2 A, C
3 B
4 A – Probably a misrepresentation because the statement is one of fact and is untrue.
B– Because the statement was an opinion of the seller it is probably not a
misrepresentation provided it was honestly held.
5 Yes. The offer has been communicated instantly by phone. Acceptance is on 5/3/2018
(date of posting). Revocation is not effective until received (presumed after 5/3/2018).
Chapter 9
1 A
2 Fidelity requires the employee to serve the employer faithfully. It is implied into all
employment contracts and means that an employee may not act against the interests
of the employer. It becomes particularly relevant if the employee is thinking about
leaving and working for a competitor, or setting up a competing business.
3 Direct discrimination, indirect discrimination and victimisation.
4 Bribery: payments to induce someone to do something they shouldn’t do.
Facilitation payments: payments to induce someone to do something they should be
doing anyhow.
5 Retirement, resignation and dismissal
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2018 Examinations Watch free CIMA BA4 lectures 91
Chapter 10
1 A, D
2 The Memorandum of Association; The Articles of Association.
3 The veil of incorporation is the distinction between the company and its owners. The
veil of incorporation is to be lifted only in circumstances where incorporation is being
used to give protection from improper behaviour so that the company is being used as
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a front.
4 The company is taxed on its profits through corporation tax.
5 Limited companies have to file their financial statements and other information with
the Registrar of Companies where the information can be inspected by the public. Sole
trader’s financial affairs can be kept much more private.
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2018 Examinations Watch free CIMA BA4 lectures 92
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