THE DEBATE BETWEEN BERLE AND DODD

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CHAPTER 2 THE HISTORY OF THE COMPANY

INTRODUCTION

It is not possible to understand company law without a historical analysis.1 The company concept is the product of a process of continuous evolution, rooted in the past but changing along with the fortunes of men and nations. The place of the company in our lives depends on our own continuing changing moral, legal, philosophical, political and economic perceptions. The company was shaped by trial and error. Over the years a variety of social or economic organisations were developed, tried and tested and the successful forms were retained and replicated.2 This evolutionary nature of the company also means that it changes and adapts with time. As the company changed over time, so did its conceptualisation. This, in turn, impacted on the ways in which the company was regulated.3 Tracing the history of the company therefore deepens our insight into the evolution of the company. It helps us to understand what the underlying values, objectives and socio-economic and political circumstances are that shaped it. It also reminds us of the important lessons that we learned from the past. Without a historical analysis no fair comprehension of the present system can be obtained.4
The word “corporation” or “company” refers to an association of persons bound together in a corpus, a body sharing a common purpose in a common name.5 In the past that purpose was often communal or religious. Today the purpose is usually commercial in nature.6 Social or organisational structures formed for a common purpose evolved all through our history – from the family, to tribes, to agricultural settlements, to ecclesiastical organisations, to boroughs, to nation states, to partnerships, to craft and merchant organisations, to trade unions, to trade and business associations and to the modern company.7 These structures were created for various purposes, for example to protect and defend, to conquer and occupy, to rule, for ecclesiastical purposes, for commercial purposes, and so on. The commercial structures served as a solution for various multi-dimensional problems which entrepreneurs and investors encountered in different historical periods.8 Carter postulates that any study about the nature of the company “would begin with the interests that first impel individuals to effect an organization, and would include a survey of the characteristics of the group in operation.”9 It is therefore necessary to take note of the origin of the company and to understand its development in relation to changing economic, social and political conditions.10
Cooke states that the concept of the corporation falls into place in the range of social concepts of how persons may or may not act together, but with the one particularity of its own namely, “that the persons who compose it are not regarded as persons acting together, but as persons acting as an entity, a source of action independent of themselves.”11 He concludes further that the corporation is a social form clothed by the law with dress suitable to its time and occasion. But although it appeared in society through legal recognition, it is not an institution created by the law. He compares it with a child who is not created by law, but is clothed with a personality which the law recognizes at birth. So social groups appear first and are recognized by the law after their creation.12 The concept of a company and the consequences that the law ascribes to incorporation is a function of the underlying socio-economic world in which it operates.13

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1 INTRODUCTION
2 A SYNOPSIS OF THE EVOLUTION OF THE COMPANY
3 THE HISTORY OF ENGLISH COMPANY LAW
4 THE HISTORY OF CANADIAN COMPANY LAW
5 THE HISTORY OF INDIAN COMPANY LAW

6 THE HISTORY OF SOUTH AFRICAN COMPANY LAW
7 CONCLUSION
CHAPTER 3: THE NATURE OF THE COMPANY
1 INTRODUCTION 1
2 DEFINITION AND ATTRIBUTES OF THE COMPANY
3 TYPES OF COMPANIES
4 CONTRACTARIAN THEORIES
5 COMMUNITARIAN OR PROGRESSIVE THEORIES
6 THE CONCESSION THEORY
7 ORGANISATIONAL THEORIES
8 BERLE AND MEANS
9 CONTRACTARIAN AND DIVISION OF POWER COMPANIES
10 APPLICATION OF THE THEORIES IN THE UNITED KINGDOM, CANADA AND INDIA

11 APPLICATION OF THE THEORIES IN SOUTH AFRICA
12 CONCLUSION
CHAPTER 4: THE CORPORATE PERSONHOOD OF THE COMPANY 
1 INTRODUCTION
2 THE FICTION OR ARTIFICIAL ENTITY THEORY
3 THE AGGREGATE THEORY
4 THE REAL ENTITY THEORY
5 THE JURIDICAL REALITY THEORY
6 APPLICATION OF THE CORPORATE PERSONHOOD THEORIES IN THE UNITED KINGDOM, CANADA AND INDIA

7 APPLICATION OF THE CORPORATE PERSONHOOD THEORIES IN SOUTH AFRICA
8 CONCLUSION
CHAPTER 5: THE CORPORATE OBJECTIVE 
1 INTRODUCTION
2 THE DEBATE BETWEEN BERLE AND DODD
3 BERLE AND MEANS
4 THE SHAREHOLDER PRIMACY MODEL
5 THE STAKEHOLDER MODEL

6 THE ENLIGHTENED SHAREHOLDER VALUE MODEL
7 THE ENTITY MAXIMISATION AND SUSTAINABILITY MODEL
8 THE CORPORATE OBJECTIVE IN THE UNITED KINGDOM, CANADA AND INDIA.
9 THE CORPORATE OBJECTIVE IN SOUTH AFRICA
10 CONCLUSION
CHAPTER 6: THE CONSTITUTIONAL IMPERATIVE 
1 INTRODUCTION
2 THE CONSTITUTION.
3 THE BILL OF RIGHTS

4 THE CONSTITUTIONAL VALUES
5 THE CONSTITUTIONAL ORDERS IN THE UNITED KINGDOM, CANADA AND INDIA
6 THE COMPANIES ACT OF 2008
7 CONCLUSION
CHAPTER 7: CONCLUSION 
1 REVIEW OF RESEARCH

2 THE PROTECTION OF CREDITORS AND EMPLOYEES 
3 CONCLUDING REMARKS
APPENDICES
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