Question Five

　　This question，split into three separate parts，required candidates to consider how companies may raise loan capital and how they secure such loans against their assets. Marks will be allocated as indicated in the paper.

　　Answers to part a）were mixed. Some candidates thought that debentures were actually shares and or a share of profit granted by the company. The majority of answers were of a high standard，recognising that a debenture was a written acknowledgement of indebtedness，that the debenture holder was a creditor and that there were no voting rights attached， just an entitlement to interest. Full marks were quite often awarded.

　　In part （b）candidates again could either readily describe the features of both fixed and floating charges，or made the mistake of assume that a fixed charge merely meant that a fixed rate of interest would be charged on the loan and that a floating charge related to a variable rate of interest. Unfortunately this is always a common mistake by candidates.

　　Question six

　　This question required candidates to consider the company secretary in the context of the idea of corporate governance.

　　This was not answered particularly well. Whilst most candidates stated that a company secretary was an administrative officer of a company，there was then a tendency to describe directors’ duties. The better-prepared candidates recognised the qualifications needed，to be appointed as a company secretary and duties described tended to be in relation to maintenance and submission of records and registers and were comfortable describing the ostensible authority in pursuance of administrative contracts on behalf of the company. A small number of candidates actually took the context of the question seriously in explaining corporate governance and considering the role of the company secretary in that context as required.

　　Given that many candidates were able to cite the high level of qualifications required for a company secretary，it was somewhat contradictory that their duties tended to be explained in the most mundane list of tasks. Some of the less well-prepared candidates even suggested that the role of the company secretary was equivalent to that of a PA to the managing director，although alternatively some suggested that they were superior to the directors.

　　Question Seven

　　This question required candidates to explain the common law rules used to distinguish contracts of service from contracts for services.

　　Again，there was a stark contrast in answers to this question. Some answers described in detail，with examples and the reference to the relevant case law，the tests which are applied in determining the employment status of an individual. Some were extremely thorough and even went on to consider the particular position of part-time workers. However，as has the case in past sittings，candidates often overlooked the key tests and instead described the various taxation implications of being employed as against being self employed，including reference to sole trader as against limited company liability，Class 1 as against Class 2 NICs and due dates for payment of income tax. Clearly answers to these sorts of questions need to be more tailored to law rather than accounting/tax to gain good marks.

　　Even where candidates were able to cite the three tests there tended to be some confusion about the integration test in particular，with a number of candidates confusing the actual outcome and relevance of Cassidy v Ministry of Health.

　　Question Eight

　　This was the first of the three analysis/application questions and it has to be said that it was not done as well as the previous knowledge questions.

　　It required an understanding of，and an ability to apply，the rules relating to consideration and it prompted a variety of answers，which varied greatly in standard. Candidates often described the various elements needed to form a contract and interpreted the scenario as one similar to Hyde v Wrench，where a counter offer was involved. Given that offer and counter-offer were specifically examined in question 2 it would have been extremely unusual for those topics to have been examined again in the same paper. There was also discussion at length，of the various remedies for breach of contract，which did not warrant a lot of marks. In addition，candidates often misinterpreted the question as one， which related to promissory estoppel and privity. Reference was also made to Sale of Goods， exclusion clauses and fraud. While the question did revolve round the issue of consideration，and in particular the question of whether the fulfilment of an existing contractual duty can amount to sufficient consideration，some candidates saw that as an opportunity to write everything they knew about consideration，including much about past consideration.

　　However some candidates did interpret the question correctly and described potential anticipatory breach，the difference between sufficient and adequate consideration and drew similarities between the scenario and the facts in Stilk v Myrick，Hartley v Ponsonby and Williams v Roffey Brothers. This was extremely refreshing to see，especially the awareness of Roffey Bros. Answers were also well structured and it was refreshing to see that candidates had adopted a sensible approach in stating the relevant law，applying it to the scenario and then drawing reasonable conclusions，linked to their interpretation and analysis. As will be seen in relation to question 9 below that link was not always made.

　　Question Nine

　　This question required candidates to analyse a given scenario and accurately apply the law of partnership to it. The question specifically raised the issues of partners’ liability，both generally and on specific contracts and their authority to enter into such contacts in the first place. Whilst there were many sound answers，it has to be said that on the whole it was not done as well as might have been expected. There was a lot of repetition of the facts from the scenario. Whilst this is sometimes relevant to demonstrate application skills，there was not often a link between the scenario and the law identified. Most candidates were good at dealing with the general law of partnership and，as in question eight，they set it out，sometimes in great detail before going on to apply it to the three parties in the scenario. However，it was in the application that a significant number of candidates let themselves down by not applying the law they had actually stated and in many instances actually contradicting what they had written previously.

　　This was particularly the case with the first character Fi. Whilst some candidates had explained that ordinary partners did not enjoy the benefit of limited liability，and that such benefit could only be achieved through specific registered partnership forms，they nonetheless concluded that the partnership was a limited one and that Fi had limited liability.

　　Nor were the situations of the other two characters particularly well dealt with，again， by and large，in contradiction of the previous accurate explanation of the general law set out in the first part of answers.

　　However，all that being said，many candidates performed well in this question.

　　Question Ten

　　This question essentially was divided into two distinct parts，one requiring candidates to consider the issue of directors’ duties with an element raising the issue of share allotment. It has to be stated at the outset that it was by far and away the worst done question on the paper. A surprising number of candidates simply did not recognise the issues raised in the problem scenario and attempted to apply various aspects of company law such insider dealing， money laundering，fraudulent trading and wrongful trading，and some sometimes all of these together.

　　A number of explanations may be put forward for this failure to deal adequately with the question. Time pressure may have been an issue，as it did appear that candidates might have rushed this question，often leaving it until last and not really understanding the main principles in the scenario. Such time pressure，however，would appear to be the outcome of candidates wasting time in earlier questions by including lots of irrelevant material in their answers.

　　However it might be that on the basis of past papers，where the final question has indeed dealt with those topics，candidates simply assumed that the question must be the same. The flaw in such logic is of course obvious.

　　Even where candidates recognised that the fundamental issue was directors duties，answers tended simply to list all such duties and as a result not to deal with the specific issues raised in the question.

　　Once again，that being said，it also has to be recognised that a number of candidates，although unfortunately a minority，produce excellent answers dealing with the issues of directors’ duties and recognising and applying appropriate case authorities in support of their answers.

　　ACCA2010年12月考试时间：12月6日-15日

　　我考网-ACCA论坛