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or (in the absence of such provisions) convened by
the Court.".
They accordingly recommended that section 5 of the Companies Act, 1929, (which provided that, subject to confirmation by the Court, a company might, by special resolution, alter the provisions of its memorandum with respect to its objects) should be repealed, and a new section
inserted giving effect to their said views.
2.6
Although in section 5 of the Companies Act, 1948, (as to which see paragraph 2.11 below) effect was given in a modified form to the Cohen Committee's recommendation that objects should be alterable by special resolution without the sanction of the Court,
the Act did not, because of serious difficulties foreseen by the Board of Trade, implement the Committee's recommendation that the
ultra vires doctrine be abolished. The problems involved were
restated by the Jenkins Committee in paragraph 39 of their Report
as follows:-
"(i)
Those who favour the abolition of the ultra
vires principle seek to achieve their object
by legislation to the effect that notwithstanding
anything contained in or omitted from its memorandum
of association every company is to have as regards
third parties all the powers of a natural person.
(ii) But a company not being in fact a natural person
can only act through directors or other agents
exercising powers delegated to them by the company. (iii) What, then, is the extent of the delegation to be?
The company could (apart from legislation to the contrary) presumably adhere to the plan now usual
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