Summer 2012 Corp

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미국 로스쿨 기업법 시험 답안 예시

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(1) Transaction
Although it is not explicitly shown which state governs the case, formation of corporation requires one or more entity (New York requires it to be person) and filing Articles to state authority with payment of fee. If the article includes required elements and filing is successful and substantial comply with state, filing itself becomes conclusive establishment of valid formation called de jure corp. Some trivial mistakes such as fee not paid or insufficient capital can be cured thereafter and thus corporation cannot be denied.
(2) Theory
By Estoppel theory, those who reasonably rely on representation are estopped from denying their corporation while others can. Irrespective of whether they pretend to be partnership, corporation or any other entity, they are liable as the entity they represent themselves. (Don Swann v echols) Instead, burden of prove as to the representation as the entity, reasonable reliance and consequential loss is to plaintiff.
(3) Analysis
In the instant case, i) the mistake such as none signed fees is trivial comparative to the reliance of the third parties, ii) their representation as corporation was clearly viewed to A, B, and C. The first argument might be arguably problematic in some jurisdictions as it may brings another statutory issues as to whether clerical error and rejected Article can be sufficiently cured where further business transactions are also very trivial. However, the latter argument would win over any contradiction as prongs for promissory estoppel are proved as this case shows. Even if it is not accepted as corporation, S still has unlimited liability as partnership since partnership can be created by sole corporation except for New York and does not require any filing.

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