Companies Act
Capacity of private company limited by shares
38. (1) Subject to subsection (2), notwithstanding anything contained in its constitution a company shall have, whether acting inside or outside of the State—
(a) full and unlimited capacity to carry on and undertake any business or activity, do any act or enter into any transaction; and
(b) for the purposes of paragraph (a), full rights, powers and privileges.
(2) Nothing in subsection (1) shall relieve a company from any duty or obligation under any enactment or the general law.
Registered person
39. (1) Where the board of directors of a company authorises any person as being a person entitled to bind the company (not being an entitlement to bind that is, expressly or impliedly, restricted to a particular transaction or class of transactions), the company may notify the Registrar in the prescribed form of the authorisation and the Registrar shall register the authorisation.
(2) A person so authorised, where his or her authorisation is registered in the foregoing manner, is referred to in this Act as a “registered person”; where, in a provision of this Act, that expression appears without qualification, it shall be taken as a reference to a registered person authorised by the board of the directors of the company to which the provision falls to be applied.
(3) Where the board of directors of a company revokes an authorisation of a person as a person entitled to bind the company (being an authorisation notified to the Registrar in the prescribed form), the person shall, notwithstanding that revocation, continue to be regarded for the purposes of this Act as a registered person unless and until the company notifies the Registrar in the prescribed form of that revocation.
(4) References in this section to a person’s entitlement to bind the company are references to his or her authority to exercise any power of the company and to authorise others to do so.
(5) In subsection (4) “power of the company” does not include—
(a) any power of management of the company exercisable by its board of directors (as distinct from any power of the board to enter into transactions with third parties), or
(b) a power of the company which this Act requires to be exercised otherwise than by its board of directors.
(6) For the avoidance of doubt, for the purposes of this section the provisions of a company’s constitution with regard to a person’s office or powers shall not, in themselves, be taken as an authorisation by the board of the directors of the company of the person as a person entitled to bind the company.
Persons authorised to bind company
40. (1) For the purposes of any question whether a transaction fails to bind a company because of an alleged lack of authority on the part of the person who exercised (or purported to exercise) the company’s powers, the following, namely—
(a) the board of directors of the company; and
(b) any registered person,
shall each be deemed to have authority to exercise any power of the company and to authorise others to do so.
(2) Subsection (1) applies regardless of any limitations in the company’s constitution on the board’s authority or a registered person’s authority, but subject to subsections (5) and (8).
(3) Subsection (1) is not to be read as preventing the exercise of a company’s powers otherwise than by the board, a registered person or a person authorised by the board or by a registered person, where authority for that exercise exists.
(4) Subsection (1) does not affect—
(a) a director’s duties (including a director’s duty to observe any limitations in the company’s constitution on the board’s authority), or his or her liability in respect of any breach of those duties; or
(b) any duty arising on the part of any other person concerned in the transaction (including the registered person) or his or her liability in respect of any breach of that duty.
(5) Where a company is purportedly a party to a transaction—
(a) in connection with which the board of directors exceeded limitations in the company’s constitution on their authority; and
(b) to which a person referred to in subsection (6) is also a party,
subsection (1) does not apply in favour of the person so referred to.
(6) Each of the following is a person mentioned in subsection (5)(b):
(a) a director or shadow director of the company or of its holding company;
(b) a person connected with such a director;
(c) a registered person;
(d) a person connected with a registered person,
and in this subsection references to a person’s being connected with—
(i) a director or shadow director are to be read in accordance with section 220 ; or
(ii) a registered person are to be read in accordance with section 220 as that section is applied by subsection (7).
(7) For the purpose of subsection (6)(ii), section 220 applies as if—
(a) for each reference in subsections (1), (2), (3) and (8) to a director of a company there were substituted a reference to the registered person;
(b) for the first reference and the third reference in subsection (5) to a director of a company there were substituted a reference to the registered person;
(c) the references in subsection (5) to another director or directors included references to one or more other registered persons; and
(d) the reference in subsection (6)(b) to a director included a reference to a registered person.
(8) In subsection (1) “power of the company” does not include—
(a) with reference to any registered person, the power of management referred to in section 39 (5)(a), and
(b) with reference to the board of directors or any registered person, the power referred to in section 39 (5)(b).
(9) Without prejudice to subsection (1), in determining any question whether a person had ostensible authority to exercise any of a company’s powers in a given case, no reference may be made to the company’s constitution.
(10) In this section a reference—
(a) to limitations in a company’s constitution includes a reference to limitations deriving from—
(i) a resolution of the company or of any class of its members; or
(ii) any agreement between the members of the company or of any class of its members;
(b) to a transaction includes a reference to any act or omission.
(11) This section is in addition to, and not in substitution for, the Rule in Royal British Bank v. Turquand.
Powers of attorney
41. (1) Notwithstanding anything in its constitution, a company may empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds or do any other matter on its behalf in any place whether inside or outside the State.
(2) A deed signed by such attorney on behalf of the company shall bind the company and have the same effect as if it were under its common seal.
Capacity of a DAC
972. (1) A DAC shall have the capacity to do any act or thing stated in the objects set out in its memorandum.
(2) For the purposes of subsection (1)—
(a) the reference in it to an object includes a reference to anything stated in the memorandum to be a power to do any act or thing (whether the word “power” is used or not),
(b) if an object is stated in the DAC’s memorandum without the following also being stated in relation to it, the capacity of the DAC extends to doing any act or thing that appears to it to be requisite, advantageous or incidental to, or to facilitate, the attainment of that object and that is not inconsistent with any enactment,
and a subsequent reference in this Part to an object of a DAC shall be read accordingly.
Capacity not limited by a DAC’s constitution
973. (1) The validity of an act done by a DAC shall not be called into question on the ground of lack of capacity by reason of anything contained in the DAC’s objects.
(2) A member of a DAC may bring proceedings to restrain the doing of an act which, but for subsection (1), would be beyond the DAC’s capacity but no such proceedings shall lie in respect of any act to be done in fulfilment of a legal obligation arising from a previous act of the DAC.
(3) Notwithstanding the enactment of subsection (1), it remains the duty of the directors to observe any limitations on their powers flowing from the DAC’s objects and action by the directors which, but for subsection (1), would be beyond the DAC’s capacity may only be ratified by the DAC by special resolution.
(4) A resolution ratifying such action shall not affect any liability incurred by the directors or any other person; if relief from any such liability is to be conferred by the DAC it must be agreed to separately by a special resolution of it.
(5) A party to a transaction with a DAC is not bound to enquire as to whether it is permitted by the DAC’s objects.
Capacity of a PLC
1011. (1) A PLC shall have the capacity to do any act or thing stated in the objects set out in its memorandum.
(2) For the purposes of subsection (1)—
(a) the reference in it to an object includes a reference to anything stated in the memorandum to be a power to do any act or thing (whether the word “power” is used or not),
(b) if an object is stated in the PLC’s memorandum without the following also being stated in relation to it, the capacity of the PLC extends to doing any act or thing that appears to it to be requisite, advantageous or incidental to, or to facilitate, the attainment of that object and that is not inconsistent with any enactment,
and a subsequent reference in this Part to an object of a PLC shall be read accordingly.
Capacity not limited by a PLC’s constitution
1012. (1) The validity of an act done by a PLC shall not be called into question on the ground of lack of capacity by reason of anything contained in the PLC’s objects.
(2) A member of a PLC may bring proceedings to restrain the doing of an act which, but for subsection (1), would be beyond the PLC’s capacity but no such proceedings shall lie in respect of any act to be done in fulfilment of a legal obligation arising from a previous act of the PLC.
(3) Notwithstanding the enactment of subsection (1), it remains the duty of the directors to observe any limitations on their powers flowing from the PLC’s objects and action by the directors which, but for subsection (1), would be beyond the PLC’s capacity may only be ratified by the company by special resolution.
(4) A resolution ratifying such action shall not affect any liability incurred by the directors or any other person; if relief from any such liability is to be conferred by the company it must be agreed to separately by a special resolution of it.
(5) A party to a transaction with a PLC is not bound to enquire as to whether it is permitted by the PLC’s objects.
Capacity of a CLG
1182. (1) A CLG shall have the capacity to do any act or thing stated in the objects set out in its memorandum.
(2) For the purposes of subsection (1)—
(a) the reference in it to an object includes a reference to anything stated in the memorandum as being a power to do any act or thing (whether the word “power” is used or not),
(b) if an object is stated in the CLG’s memorandum without the following also being stated in relation to it, the capacity of the CLG extends to doing any act or thing that appears to it to be requisite, advantageous or incidental to, or to facilitate, the attainment of that object and that is not inconsistent with any enactment,
and a subsequent reference in this Part to an object of a CLG shall be read accordingly.
Capacity not limited by a CLG’s constitution
1183. (1) The validity of an act done by a CLG shall not be called into question on the ground of lack of capacity by reason of anything contained in the CLG’s objects.
(2) A member of a CLG may bring proceedings to restrain the doing of an act which, but for subsection (1), would be beyond the CLG’s capacity but no such proceedings shall lie in respect of any act to be done in fulfilment of a legal obligation arising from a previous act of the CLG.
(3) Notwithstanding the enactment of subsection (1), it remains the duty of the directors to observe any limitations on their powers flowing from the CLG’s objects and action by the directors which, but for subsection (1), would be beyond the CLG’s capacity may only be ratified by the CLG by special resolution.
(4) A resolution ratifying such action shall not affect any liability incurred by the directors or any other person; if relief from any such liability is to be conferred by the CLG it must be agreed to separately by a special resolution of it.
(5) A party to a transaction with a CLG is not bound to enquire as to whether it is permitted by the CLG’s objects.
The text in italics on this page is sourced from the Irish Statute Book and is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.
Important Notice!
This website is provided for informational purposes only. See the Disclaimer and the Terms of Use in the footer. It is a fundamental condition of the use of this website that no liability is accepted for any loss or damage caused by reason of any error, omission, or misstatement in its contents.
Public Sector Materials; Statutes and Cases in italics are reproduced as public sector material. See the Legal Materials link in the footer.