The Making of the Modern Company: (Contemporary Studies in Corporate Law)

This book adopts a historical perspective to highlight, and bring back into focus, the key features of the modern company. A central argument in the book is that legal personhood attaching to an entity containing a corporate fund seeded by shareholders is a direct and inevitable consequence of limited liability and the company’s status as a separate legal entity from its shareholders. Management by a board subject to legal duties to the company as an entity that can exist in perpetuity facilitates a long term perspective by the board that can accommodate both shareholder and stakeholder interests. These defining characteristics differentiate the modern company from other business forms. The Making of the Modern Company applies a 21st-century lens to the corporation through its history to identify turning points in its development. It sets out how key features emerged in the course of two separate developmental cycles in English corporate law: first with the English East India Company in the 17th century, and then with general incorporation statutes in the 2nd half of the 19th century. The book's historical perspective highlights that the key features are part of the 'secret sauce' of modern companies. Each cycle coincided with unparalleled periods of economic success associated with corporate activity This book will be of interest to corporate law and governance academics, theorists and practitioners, those who study the company from related disciplines, and anyone who questions why uncertainty still exists about the structure of a legal form that has been described as 'amongst mankind’s greatest inventions'.

Table of Contents:
1. Introduction I. Introduction II. Key Features III. Property versus Social Entity IV. The Agency Problem V. The Making of the Modern Company PART ONE DEVELOPMENT OF THE MODERN COMPANY 2. Persona Ficta and Joint Stock I. Two Kinds of Legal Organisation II. Early Corporate Enterprises III. Early Funds IV. Contractual Joint Stock Companies V. Business Corporations VI. Separate Legal Entity VII. Persona Ficta VIII. Conclusion 3. The Transition to Permanent Capital in the English East India Company I. Introduction II. The First Twenty Years III. The Second Twenty Years IV. The Third Twenty Years V. The 1657 Charter 4. Corporate Governance in the English East India Company I. Introduction II. Development of Governance Structures in Early Business Corporations III. Shareholder Activism in the English East India Company IV. Maurice Thomson and the Emergence of Directors’ Duties 5. The Rise and Fall of the English East India Company I. The English East India Company with Permanent Capital II. The Impact of the Legal Structure III. Private Trade in the English East India Company IV. The Fall of the English East India Company V. Conclusion – The English East India Company in Context 6. The Early Emergence of Directors’ Duties I. Introduction II. Emerging Obligations of the Governing Body of the English East India Company III. Role of the Oath in the Obligations of Governing Bodies IV. Charitable Corporation v Sutton V. Development of Duties Around Conflict of Interest 7. Liability of Shareholders of Business Corporations I. Introduction II. Liability of Shareholders to Third-Party Creditors III. Could Shareholders be Compelled to Contribute Capital to the Company? IV. Shift in Focus to the Contractual Joint Stock Company 8. The Significance of the Deed of Settlement Company I. Introduction II. The Bubble Act III. The Deed of Settlement Company IV. The Efficacy of the Deed of Settlement Company V. The Business Corporation in the Eighteenth Century VI. The Relative Adoption of the Two Corporate Forms VII. Corporate Governance in Deed of Settlement Companies VIII. Conclusion 9. General Incorporation Statutes I. Introduction II. The Joint Stock Companies Act 1844 III. The Joint Stock Companies Act 1856 IV. Limited Liability V. Was the Modern Company a Partnership or a Corporation? VI. Salomon v Salomon & Co Ltd 10. Key Milestones in the Development of the Modern Company I. Introduction II. Double-Entry Bookkeeping III. The Floating Charge IV. Company Law V. The Significance of Salomon VI. Conclusion PART TWO CONSEQUENCES OF THE MODERN COMPANY 11. England Compared with Other Jurisdictions I. Introduction II. United States and Germany Compared with England III. ‘Quaker’ Companies IV. The Early US Corporation V. Germany VI. Conclusion 12. The Transition to the Modern Company in England I. Introduction II. Slow Adoption of the Corporate Form III. Financing Structure IV. Financing after the General Incorporation Statutes V. Contemporaneous Commentary on English Financing of Companies VI. The Private Company VII. Founders and Families Retaining Control VIII. Delays in Management Power Shifting from Shareholders to the Board IX. Conclusion 13. Conceptions of the Components and Characteristics of the Company I. The Corporate Fund and Entity Shielding II. The Corporate Fund in History III. The Corporate Fund and Creditors IV. The Corporate Fund as a Concept V. Understanding the Corporate Fund through the Floating Charge VI. Property Rights in the Company VII. Conceptions of the Company VIII. The Nature of Legal Personhood IX. The Modern Company as a Legal Fiction X. The Persona Ficta Modified XI. The Significance of the Persona Ficta XII. Separate Legal Entity and Legal Personhood XIII. Conclusion 14. The Modern Company as an Entity I. Introduction II. The Role of Real Entity Theory III. The Contribution of Real Entity Theory to the Understanding of the Modern Company IV. The Modern Company as a Real Entity V. The Persona of the Corporate Entity VI. The Modern Company as a Firm VII. The Modern Company as an Organisation VIII. The Modern Company as an Entity IX. The Accounting Entity 15. Corporate Governance I. Introduction II. Are Directors the Legal Agents of Shareholders? III. Are Directors the Economic Agents of Shareholders? IV. Berle and Means V. Entity Primacy VI. Should Companies Maximise Wealth for Shareholders? VII. Obligations of Directors VIII. Operationalising Entity Primacy IX. Conclusion 16. The Modern Company: Perils and Potential I. Corporate Morality II. Sustainability Realised III. Personal Capitalism IV. The Modern Company

About the Author :
Susan Watson is Dean of the Business School and holds joint chairs in the Faculty of Law and Faculty of Business and Economics, at the University of Auckland, New Zealand.

Review :
Goes a long way to resolving historical and ongoing theoretical debates as to the nature of the company, and connects them to corporate reality. As such, it will be a major text for those engaging with this theoretical debate. ... a must-read book.