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Re: Novel twist: time sequence & law.



easlab@absamail.co.za
10/21/2003 3:31:08 PM


A will/share-transfer scheme which minimises death
Earthlink@Mindspring.com wrote:
A (potentially: KEY) fact you do not here make (and, unless I do not
recall correctly, in your other postings have not made) sufficiently
clear is whether the transfer of ownership of the shares in question
from the then owner (the corporation itself? your father?) to the
transferees named in the corporate resolutions adopted to implement
the share-transfer/tax-avoidance/(later)loan-forgiveness scheme to
which your refer were reflected clearly on the corporation's
share-transfer books/records maintained in the ordinary course of
business.
Yes the purported share transfers were reflected in the Pty's share,
register; as was the fraudulently back-dated [to previous tax year]
meeting minutes. The co-registrar official says:"I've been in this job for
14 yrs. For the last 10 years (since the ANC took power), I've been able
to get one prosecution for the many reported offenses. The police don't
want to bother."
But the will/share-transfer/tax-avoidance/(later)loan-forgiveness is
NOT a company matter, except for registering the change in
shareholders.
A related insuffiently clear fact (though, maybe, I just don't
remember what you said in this respect) is whether the shares
themselves were actually tendered to and accepted by the transferrees
or, if not, whether there was a provably established corporate
practice for the corporation itself to act as custodian for such
shares.
It's a private [unquoted] co. I think the potential share transfer
is between persons [not the company]. The other transferees signed
[on page 2 of the fraudulently backdated minutes]; I refused to.
A lawyer's letter [in connection with the
corporate transfer resoultion] underlines
in BOLD:
"prior to signing the wills make sure that the
shares have been transfered accordingly". This
relateds to the common law: "Lemo pros Jurit"
i.e. " you cannot absolve a debt which does not
yet exist". ...snip...
It may be important to know more about what you "...snip..." because
might help answer the (as far as I recall from your postings on this
subject) unanswered questions summarized above and also because, in
any event, the present tense "you cannot absolve" is not suffiently
clear about what a _will_ -- when the will becomes effective -- may
absolve.
It is generally correct that a unilaterally stated agreement by an
individual or corporate body (at least if not supported by provable
present consideration [apparently not relevant here] or [as you
_otherwise_ correctly say] not supported by an agreement signed by the
party to be charged [you]) to absolve a future debt is not enforceable
(for lack of consideration or for lack of such a signed agreement).
Please enlarge on this, possibly with examples.
But does it address the point that I'm pressing: that share transfer MUST
be before will signing ?!
HOWEVER, you seem to be referring to two different/independent
undertakings to absolve a debt -- first, a corporation's promise to do
so (as stated in and implemented by duly enacted corporate resolution)
No the debt is to the share transferor (person), not the company.
and, second, an _individual's_ instruction to do so, as stated in his
will, i.e., in/by an instrument that will not take effect until the
date of his death.
In Gt. Britain and in the U.S., however (I haven't verified whether
there is a different rule on point in So. Africa), because a will
"speaks" (only) as of the date of the testator's/testatrix's death,
the dispositive question insofar as an absolution-of-debts provision
stated therein is concerned will be whether the subject of such
absolution was indebted to the deceased when the deceased died (again:
NOT whether the target of such absolution was indebted to the
eventually-to-be-deceased before or when s/he made the will in
question).
(This is a corrolary to the related will-related rule, applicable in
your country as in the Gt. Britain and in the U.S., that a will which
directs,
"I leave my house and the land on
which it is erected to [beneficaryX]"
will not be interpreted/applied to require that the will-maker will
not have been entitled to sell or give that property to another before
s/he died in the absence, in addition to the will, of an agreement
with [beneficiaryX] that s/he may not and shall not do this.)
OK: the will's conditions can be nullified before death.
==> these condition are only 'fixed' at death.
==> absolution can be made any time after share transfer.
But can it be made BEFORE share transfer.
i.e. can you grant a privilage which you don't (yet) possess.
I've extracted from the law-related texts
[something like] - ,
"...[the general rule that] no [bi-lateral express]
contract can come into existence unless the offer
is accepted ....applies to donations ..same as other
contracts ..."
It is a very safe bet that this is a misreading or, at least, that
your "extract[ion]" is (seriously) incomplete. The rule, insofar as
it is that, you "extract" applies to CONTRACTS by which someone AGREES
to make a donation, not to "donations" in general (if the donation
actually has been made).
Which is why clearer answers are needed to the questions when/how
the corporation in question and the (original) shareholder in question
handled transfers of corporate stock from the corporation to a
third-party or from that (original) shareholder to a third-person
(e.g., to you).
OK.
1. a pvt co. needs the intended transferee to sign also (see my
repeated extract of the the legislation).
2. The 'other shareholders' signed on the second page of the meeting
minutes (which was backdated to 26 Feb 1999 as admitted in their
affidavit) on 24 June 1999, and I refused to sign.
3. The transferor signed the will (absolving the loan from the share
transfer, before signing the share transfers. Ie. absolved (an
anticipated) debt before it existed.
?? Apparently the advising lawer though that this sequence:
'will sign before share transfe
 
 
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