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S1192 of the Company Act 2006 - Permitted Additions

Re: S1192 of the Company Act 2006 - Permitted Additions

Postby Denning » Fri Dec 09, 2016 3:13 pm

atticus wrote:If you are correctly reporting what that person has said, he is wrong. Why do you seek to prove him right?

I was trying to find justification for the action of the judge as I find the decision terribly wrong. If I was the judge I would have ordered a rectification of the contract given that a legal representative of a "fictitious company" is the de facto person and legitimate party to that agreement as no other person lay claim to "Sarah Lewis Company".
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Re: S1192 of the Company Act 2006 - Permitted Additions

Postby atticus » Fri Dec 09, 2016 3:41 pm

Did I miss the earlier reference to a judgment?

Ding, look at the pleadings. Look at the evidence. Look at the judgment if a note is available. These will help you understand the issues in the case and will point you to the answer to the question why the judge made the decision that he did.
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Re: S1192 of the Company Act 2006 - Permitted Additions

Postby Denning » Fri Dec 09, 2016 4:02 pm

atticus wrote:Did I miss the earlier reference to a judgment?

Ding, look at the pleadings. Look at the evidence. Look at the judgment if a note is available. These will help you understand the issues in the case and will point you to the answer to the question why the judge made the decision that he did.

I wanted us to discuss the issue rather than to mention the decision hence the way the issue was presented.
It was the company who pleaded s1192 to support their case.
Lets look beyond the decision and possibly to help future people who stumbled across this thread.
How can a trading name be deemed a person?
Or is there another way the case could have been remedied for Miss Lewis?
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Re: S1192 of the Company Act 2006 - Permitted Additions

Postby Denning » Fri Dec 09, 2016 4:36 pm

This is a case where Henderson J gave consideration in the rectification of the party to the agreement. It is a very long judgment but extracted some of the relevant passages below.

Derek Hodd Ltd v Climate Change Capital Ltd [2013] EWHC 1665
48. I would accept that, if it is impossible to identify a party to a contract as a matter of construction, the contract must fail for uncertainty unless it can be rectified. I would not, however, accept that any special rules apply to cases of alleged misnomer, at any rate where the issue is one of construction of a contract...

50. In my view, sounder guidance is to be found in Nittan v Solent Steel, where Brightman LJ said at 639:

"In my opinion, in construing a document, the Court is at liberty, as a matter of construction, to correct a misnomer. A misnomer is not, in my view, necessarily a mistake which requires the equitable remedy of rectification. The misnomer may be a mere clerical error. A simple example would be the use in a conveyance of the expression "the vendor" where clearly "the purchaser" was intended. It is not necessary to rectify the conveyance to enable it to be read and take effect as the parties plainly intended."

The present case is admittedly not one of mere clerical error, but once the court has decided, as a matter of construction, that the parties intended the contracting party to be CCC, I can see no good reason why the error should not be corrected as a matter of construction.
...

52. Applying these principles, I would if necessary hold that, viewed objectively, the common intention of the parties on 13 November 2006 was that CCC should be the contracting party; that the agreement on 13 November to enter into a contract on the terms of the Letter of Engagement satisfied the requirement of an outward expression of accord; that the common intention continued at the time of signing the letter; and that, by mistake, the letter failed to reflect their common intention.
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Re: S1192 of the Company Act 2006 - Permitted Additions

Postby atticus » Fri Dec 09, 2016 4:47 pm

This thread has been a monumental waste of time, dingaling. Next time you want to discuss a reported case, discuss the case.

Reading the facts of the case, your example comes nowhere near. The judge allowed rectification of a contract to correct the name of a party. No part of the discussion which includes the passages you quote mention s1192.

The end.
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Re: S1192 of the Company Act 2006 - Permitted Additions

Postby atticus » Fri Dec 09, 2016 4:59 pm

I will lock this thread unless someone can give a good reason not to. Any text in red will automatically be regarded as a very bad reason.
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Re: S1192 of the Company Act 2006 - Permitted Additions

Postby Smouldering Stoat » Fri Dec 09, 2016 5:50 pm

This is about as convoluted as the Hapsburg family tree. Are there two cases here? The case nnng is trying to persuade us was wrongly decided, and the case he has cited above, which he believes is a precedent which ought to have been followed.
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Re: S1192 of the Company Act 2006 - Permitted Additions

Postby Denning » Fri Dec 09, 2016 8:43 pm

This thread was opened to have some clarity as to whether it is an offence to put a name in front of a sole trader natural names (Sarah Lewis) when the sole trader is trading and if so construed to be an offence (or no offence) in contractual matter whether such is irremediable?

My understanding from the various contributions appeared to state overwhelmingly that it is not an offence for a sole trader to put a name in front of the sole trader natural names (in this case Sarah Lewis Company) and as such s1192 does not apply provided the name(s) to be added to the sole trader natural names were not part of the restricted names. dls then went further to answer the other part that it is a good practice to have a readily identifiable person or legal person in contractual matters but even if the trading names have been used as a party to the contract that such error is not fatal but redeemable.

I then decided to state that in Miss Lewis' case the judge took a different approach and decided it was fatal for her to create a false impression by her signature to a fictitious name which is neither a natural person nor a legal person and as a result rejected her claim.

As Smouldering Stoat rightly stated I decided to provide a case law which showed that errors such as in Miss Lewis' case given that her trading name was used as a party to a contractual agreement rather than her natural name can be corrected.

The question still open in the thread is whether a trading name such as "Sarah Lewis Company" can be considered "a person" (either natural or legal) in law?
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Re: S1192 of the Company Act 2006 - Permitted Additions

Postby dls » Sat Dec 10, 2016 6:46 am

The case deals with a situation whee it is not possible to identify who is the intended party to a contract. Read that as 'misnamed and not possible to identify'. In the vast majority of situations other means will be available to identify the party.
The court was pointing indeed to the lack of need for the full equitable remedy of rectification. He was saying that a simple error can be just deemed corrected.

You are managing to find here an intention to mislead. That can certainly happen, and may indeed be a source of criticism from the judge, but such an intention cannot generally be drawn from the addition of a name to create a trading name.
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Re: S1192 of the Company Act 2006 - Permitted Additions

Postby dls » Sat Dec 10, 2016 6:50 am

The question still open in the thread is whether a trading name such as "Sarah Lewis Company" can be considered "a person" (either natural or legal) in law?


Your question betrays a fundamental mistake. The name is not a person. A name is a label attached to a person as an identifier. It is an error of logic used by the 'freemen on the land-ers' to sow confusion. It conflates two questions. Is this object a legal person, and does this name successfully attach itself to that object.
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