¹ Broderip v Salomon [1895] 2 Ch 323 at 341 per Lopes LJ.

² [1897] AC 22.

³ Due to space limitations, I will focus upon the legal personality of Mrs Salomon, although an analysis of the exclusion of the children's participation would make an important independent study. See, for example, King, M and Piper, C, Haw the Law Thinks About Children (1990)Google Scholar.

⁴ Almost nothing is known of Mrs Salomon so it has been necessary to extrapolate some of the details of her life. This is a device which has been used in literature by authors such as Tom Stoppard who borrowed two characters from Shakespeare's Hamlet in his play Rosencrantz and Guildenstern are Dead and Jean Rhys who wrote of the early life of Berthe from Jane Eyre in her book, The Wide Sargasso Sea. The extrapolation has allowed Mrs Salomon to exemplify married women in the context of the family companies during the Victorian period and in the subsequent hundred years. She will therefore evolve across time and move across space from England to New South Wales.

⁵ Unfortunately the analysis does not allow consideration of the role of single women because it gives rise to quite different legal considerations. However this would also be a compelling independent study. For example, Nenadic examines the relatively high incidence of female sibling firms which were formed in the dressmaking and millinery trade between “spinster sisters” in Victorian England. See Nenadic, S, “The Small Family Firm in Victorian Britain” in Jones, G and Rose, M (eds), Family Capitalism (1993) at 94-95Google Scholar.

⁶ I am assuming that the first child Emanuel was born soon after the marriage.

⁷ G Rubin, “Aron Salomon and His Circle” in J Adams, Essays for Clive Schmittoff (1983) 99 at 102.

⁸ Lord Macnaghten estimated that if the business had been disposed of as a going concern in 1892, at least £10,000 would have been received: [1897] AC at 48. However, by the time the House of Lords delivered its decision on 16 November 1896 Aron was a pauper.

⁹ Ibid.

¹⁰ Ibid at 49.

¹¹ Ibid at 48.

¹² G Rubin, above n 7 at 101.

¹³ Chandler, AD Jr, Scale and Scope: The Dynamics of Industrial Capitalism (1990) at 14-46CrossRefGoogle Scholar.

¹⁴ For example, Charles Dickens' Little Dorrit.

¹⁵ S Nenadic, above n 5 at 89.

¹⁶ P L Payne, “Family Business in Britain: An Historical and Analytical Survey” in A Okochi and S Yasuoka (eds), Family Business in the Era of Industrial Growth, cited in R Church, “The Family Firm in Industrial Capitalism: International Perspectives on Hypotheses and History” in G Jones and M Rose (eds), Family Capitalism, above n 5.

¹⁷ S Nenadic, above n 5 at 91.

¹⁸ Ibid.

¹⁹ S Nenadic, ibid, gives the example of a Scottish firm of R M Cameron which had branches in Glasgow and Edinburgh which was “larger than most”. Upon sequestration in 1882, its assets were valued at £3,715 and its liabilities were in excess of £7,000.

²⁰ Ford, H A J, Austin, RP and Ramsay, IM, Ford's Principles of Corporations Law (8th ed 1997) at 104Google Scholar. Other examples of this characterisation are as follows: P Redmond, Companies and Securities Law: Commentary and Materials (1992) at 165: “For many years Aron Salomon had traded on his own account” and R Tomasic and S Bottomley who punned: “For some 30 years Aron Salomon had run a business as a leather merchant and boot manufacturer - he was truly a 'sole' trader”, Corporations Law in Australia (1995) at 34.

²¹ Apart from the reference about Emanuel acting “practically as manager” by Lord Macnaghten, above n 2 at 48.

²² Broderip v Salomon [1895] 2 Ch 323 at 341.

²³ Ibid at 345.

²⁴ S Ville, “Judging Salomon: Corporate Personality and the Growth of British Capitalism in a Comparative Perspective”, this volume at 211.

²⁵ Paul Finn, Opening Remarks, this volume, at 173.

²⁶ As stated by Michael Bayles, “Principles for Legal Procedure” in Galligan, D (ed), Procedure (1992) at 40Google Scholar: “Unlike pure science, the law does not aim at the truth, the whole truth and nothing but the truth. That would be too expensive and often irrelevant to the purpose of dispute resolution”.

²⁷ See generally, C Mantziaris, “The Dual View, Theory of Corporation and the Aboriginal Corporation” this volume at 283.

²⁸ Ireland, PW, “The Rise of the Limited Liability Company” (1984) 12 International Journal of the Sociology of Law 239 at 252Google Scholar. Ireland concludes that, despite the possibilities perceived by some, it was neither intended nor anticipated that the 1856-62 Acts or the company legal form would be used by “private” partnerships or sole traders. McQueen in an article published in this volume at 181 (“Life Without Salomon”) challenges this interpretation.

²⁹ K O'Donovan, Family Law Matters, (1993) at 31. Familial ideology is commonly encountered in modem judgements especially where there is a contest between the family and corporate creditors. See for example, P Spender, “Family Companies and Women's Proprietary Entitlements” (1997) Australian Journal of Family Law 196 (hereafter “Family Companies”) at 203-204 and P Spender, “Exploring the Corporations Law Using a Gender Analysis” (1996) 3 Canberra Law Review 82.

³⁰ [1897] AC 22 at 50-51.

³¹ Naffine, N, Law and the Sexes (1990) at 23Google Scholar.

³² Stoljar, S, Groups and Entitie, (1973) at 5Google Scholar; Duff, PW, Personality in Roman Private Law (1938) at 3Google Scholar.

³³ S Stoljar, ibid.

³⁴ N Fraser and L Gordon, “Civil Citizenship Against Social Citizenship” in van Steenbergen, B (ed), The Condition of Citizenship (1994) at 97-98CrossRefGoogle Scholar.

³⁵ As stated by N Naffine “this rational autonomous instrumental self ... forms the public subject of Western law”, in Naffine, N, “Sexing the Subject (of Law)” in Thornton, M (ed),Public and Private (1995) at 22Google Scholar.

³⁶ For example, human subjects may plead the privilege against self incrimination whereas corporations may not Environmental Protection Authority v Caltex (1993) 178 CLR 477.

³⁷ Corporations Law: Part 2B.2.

³⁸ For example, the development of married women's personality which is discussed in Part of this article. For a history of corporate personality, seeCorcoran, S, “Does a corporation have a sex?” in Naffine, N (ed), sexing the subject of law (1997) at 215-232Google Scholar.

³⁹ For example, some historians argue that women were relatively autonomous during the Anglo-Saxon period, enjoying many of the attributes of legal personality. S Berns argues:

While it could not be said that men and women were legally or socially equal in Saxon England, women apparently did possess significant rights, including the right to own and dispose of property, the right to terminate a marriage by divorce and, at least in some cases, custody of the children should the marriage fail. Their legal personhood remained essentially intact.

S Berns, “Women in English Legal History: Subject (almost), Object (irrevocably), Person (not quite)” (1993) 12 University of Tasmania LaW Review 26 at 28-29. See also J McNamara and S Wemple, “Sanctity and Power: The Dual Pursuit of Medieval Women” in R Bridenthal and C Koonz (eds), Becoming Visible: Women in European History (1977) at 104;

and C Fell, Women in Anglo-Saxon England (1984) at 89-90. Others argue that this view is excessively optimistic and is dependent upon one's perception of the particular property rights involved. Muller points out

It would be just as logical for ... historians to praise the development of the state for liberating men, who could as a result own private property and become wealthy, whereas in tribal society they couldn't really own anything as an individual.

Muller, V, “The Formation of the State and the Oppression of Women: Some Theoretical Considerations and a Case Study in England and Wales” (1977) 9 Review of Radical Political Economy 18CrossRefGoogle Scholar.

⁴⁰ Hirshon, R, Women and Property-Women as Property (1984) at 2Google Scholar.

⁴¹ Naffine, N, “The Legal Structure of Self-Ownership: Or the Possessed Man and the Woman Possessed” (1998) 23 Journal of Lmo and Society 193 at 197Google Scholar.

⁴² Reich, C, “The New Property” (1964) 73 Yale Lmo Journal 733 at 771CrossRefGoogle Scholar.

⁴³ Davies, M, “Feminist Appropriations: Law Property and Personality” (1994) Social and Legal Studies 365 at 377CrossRefGoogle Scholar.

⁴⁴ Gray, K, “Property in Thin Air” (1991) Cambridge Lmo Journal 252 at 295CrossRefGoogle Scholar.

⁴⁵ Inheritance is the transfer of property (either as a set of rights or as access to use) down the generations through time, while marriage payments (dowry and bridewealth) are the transfer of property or wealth across kinship groups. See V Stolke, “Women's Labours: The Naturalisation of Social Inequality and Women's Subordination” in K Young, C Wolkowitz and R McCullagh (eds), Of Marriage and the Market (1981) at 5.

⁴⁶ Glendon, M, The New Family and the New Property (1981) at102-3Google Scholar.

⁴⁷ The Married Women's Property Act commenced operation in 1883.

⁴⁸ The doctrine of coverture is discussed in the text accompanying footnotes 52 and 53.

⁴⁹ R Geddes and D Lueck, “Self-Ownership and the Rights of Women”, Unpublished Paper presented at the ANU, 22 August 1996.

⁵⁰ Ibid at 3. The concept of self-ownership as applied to women has been subjected to criticism. See, for example, N Naffine, above n 41, and Davies, above n 42. I accept these criticisms insofar as the term connotes autonomy for women.

⁵¹ R Geddes and D Lueck, above n 49 at 12-13.

⁵² S Staves, Married Women's Separate Property in England, 1660-1833 (1990) at 4.

⁵³ Holcombe, L, Wives and Property (1983) at 18CrossRefGoogle Scholar.

⁵⁴ Ibid at 39.

⁵⁵ Dicey, A V, Lectures on the Relation between Law and Public Opinion in England During the Nineteenth Century (1920) at 383Google Scholar.

⁵⁶ The legal fees alone which were required to draw up a marriage settlement were generally in excess of £100. According to one estimate such marriage settlements applied to only one tenth of the marriages in the UK at the time. L Holcombe, above n 53 at 46.

⁵⁷ M Murray, The Law of the Father? (1995) at 67 states that dowry was a product and an instrument of stratification. It was used by families to restrict the likelihood of daughters marrying too far “down” or “out”.

⁵⁸ L Holcombe, above n 53 at 21.

⁵⁹ M Murray, above n 57 at 64-66.

⁶⁰ MacMorran, A, The Married Woman's Property Act 1882 (1883) at 37-38Google Scholar.

⁶¹ Stone, L, The Road to Divorce: England 1530-1987 (1990) at 309-322CrossRefGoogle Scholar.

⁶² Parker, S, Parkinson, P and Behrens, J, Australian Family Law in Context (1994) at 86Google Scholar.

⁶³ H Golder and D Kirkby, “Marriage and divorce law before the Family Law Act 1975” in Kirkby, D (ed), Sex, Power and Justice (1995) at 157Google Scholar.

⁶⁴ Ibid.

⁶⁵ Divorce and Matrimonial Causes Act 1857 (UK) s 27, discussed in S Parker, P Parkinson and J Behrens, above n 62 at 87. See also, A Homes, “The Double Standard in English Divorce Laws, 1857-1923” (1995) Law and Social Inquiry 601.

⁶⁶ H Golder and D Kirkby, above n 63 at 157-158.

⁶⁷ Ibid at 158.

⁶⁸ Ibid.

⁶⁹ Ibid at 161.

⁷⁰ M Glendon, above n 46 at 103.

⁷¹ A Dickey, Family Law (1990) at 319.

⁷² (1883) 24 Ch D 317

⁷³ Ibid at 337.

⁷⁴ Ellis, Supreme Court of NSW, Harvey J, 8 April 1924 unreported.

⁷⁵ This assertion demands a definition of “stake” which includes nonshareholder interests. As Dallas states: “the transaction cost theorist measures stake in terms of asset specificity; the agency cost theorist in terms of the marginal product of the nonshareholder constituencies contributing to the corporation and the power (or political) coalition theorist by the dependence of nonshareholder constituencies upon the corporation”. See L Dallas, “Working Toward a New Paradigm” in L Mitchell (ed), Progressive Corporate Law (1995) at 49.

⁷⁶ This conclusion is based on a survey of 5000 businesses commissioned by Price Waterhouse

and the Commonwealth Bank, referred to in “Succession troubles ahead” (1995) 11 Company Director No 6 at 20. The report found that 47% of the family businesses have 2 shareholders, 32.6% have between 3 and 5, 9.2% have between 6 and 10 and the remaining 4.4% have more than 10 shareholders, ranging from 11 to 7500. The report also found that family-owned businesses account for 83% of all businesses and employ approximately 50% of the private sector workforce. Of that 83%, 79.9% are private companies.

⁷⁷ The arguments raised in Part 3 are fully traversed in P Spender, “Family Companies” above n29.

⁷⁸ Continental Tyre and Rubber Co (GB) Ltd v Daimler Co Ltd [1915) 1 KB 893 at 916 per BuckleyLJ.

⁷⁹ This is a technique of some antiquity. Goodhart referred to the practice which arose in New York prior to the abolition of dogwer in 1930. The wife's entitlement to dower was often circumvented by the creation of one-man companies to hold real property belonging to the husband. This enabled disposal of the husband's real property on the eve of the marriage. See A Goodhart, “On the Nature of Legal Persons” (1938) 44 Law Quarterly Review 494 at 517.

⁸⁰ Section 79(4) of the Family Law Act 1975 (Cth) states a s follows:

(4)In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account

(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;

(d)the effect of any proposed order upon the earning capacity of either party to the marriage;

(e)the matters referred to in subsection 75 (2) so far as they are relevant;

(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and

(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, or is to provide, for a child of the marriage.

⁸¹ Parkinson, P, “Property Rights and Third Party Creditors-The Scope and Limitations of Equitable Doctrines” (1997) 11 Australian Journal Family Law 100Google Scholar.

⁸² (1981) 33 ALR 631.

⁸³ In the Marriage of Turnbull (1991) FLC 92-258, Moran v Moran (1995) FLC 92-559,In the Marriage of Stein (1986) FLC 91-779,In the Marriage of Collins (1987) FLC 91-800,In the Marriage of Davidson (1991) FLC 92-207.

⁸⁴ In the Marriage of Stein (1986) FLC 91-779 at 75,674.

⁸⁵ The term “commercial courts” is employed here to distinguish forums where the dispute is litigated as a corporate law dispute rather than a family dispute. The expression mainly refers to the State and Territory Supreme Courts and the Federal Court.

⁸⁶ Gilford Motor Co Ltd v Horne [1933] Ch 935;Smith, Stone & Knight Ltd v Birmingham Corporation [1939] 4 All ER 116.

⁸⁷ Briggs v James Hardie & Co Pty Ltd (1989) 7 ACLC 841;Walker v Wimborne (1976) 137 CLR 1;Industrial Equity v Blackburn (1977) 137 CLR 567.

⁸⁸ (1984) 156 CLR 185.

⁸⁹ (1981) FLC 91-100.

⁹⁰ A Dickey, above n 71 at 6%.

⁹¹ R v Ross-Jones; Ex Parte Green (1984) 156 CLR 185 at 202.

⁹² Ibid at 203.

⁹³ P Spender, “Family Companies”, above n 29 at 203.

⁹⁴ In this context I am referring to claims emanating from the family as an independent stakeholder rather than claims made by the married woman. See, for example, BNZ v Fiberi (1994) 12 ACLC 48;Hannes v MJH Pty Ltd (1992) 10 ACLC 400; Andco Nominees v Lestato Pty Ltd (1995) 13 ACLC 823;Standard Oiartered Bank of Australia v Antico (1995) 13 ACLC 1381 at 1473.

⁹⁵ This situation generally arises upon a corporate insolvency, but the same policy question emerge in relation to bankruptcy. See A Dickey, “A Question of Priorities: Wives or Unsecured Creditors?” (1992) 6 Australian Journal of Family Law 229, and Justice Lindenmayer's paper bearing the same name, “A Question of Priorities: Wives or Unsecured Creditors?” (1992) 6 Australian Journal of Family Law 239; J Lindenmayer and P Doolan, “When Bankruptcy and Family Law Collide” (1994) 8 Australian Journal of Family Law 111.

⁹⁶ This concept has its origins in R Coase, “The Nature of the Firm” (1937) 4 Economica 386 and was elaborated by M Jensen and Meckling, W, “Theory of the Firm: Managerial Behaviour, Agency Costs and Ownership Structure” (1976) 3 Journal of Financial Economics 305Google Scholar.

⁹⁷ S Stoljar, above n 32 at 11.

⁹⁸ Ibid.

⁹⁹ Posner, R, Economic Analysis of Law (1986) at 130Google Scholar.

¹⁰⁰ Ibid.

¹⁰¹ S Nenadic, above n 5 at 89.

¹⁰² Smith, A, An Inquiry into the Nature and Causes of theWealth of Nations (1937) at 14Google Scholar.

¹⁰³ Becker, G, A Treatise on the Family (1991) at 227CrossRefGoogle Scholar.

¹⁰⁴ Ibid at 344.

¹⁰⁵ Drahos, P, A Philosophy of Intellectual Property (1996) at 220-221Google Scholar.

¹⁰⁶ P W Ireland, above n 28 at 255; J Ziegel, “Creditors as Corporate Stakeholders: The Quiet Revolution-an Anglo-Canadian Perspective” (1993) 43 University of Toronto Law Journal 511 at 512.

¹⁰⁷ J Ziegel, ibid at 103.

¹⁰⁸ Walker v Wimborne (1976) 137 CLR 1;Kinsela v Russell Kinsela (1986) 4 NSWLR 722; Nicholson v Permakraft (NZ) Ltd (1985) 3 ACLC 453.

¹⁰⁹ [1977] 2 NZLR 225.

¹¹⁰ Ibid at 371.

¹¹¹ Ibid at 330.

¹¹² In Glavanics v Brunninghausen (1996) 19 ACSR 204, Bryson J found that a director may owe a fiduciary duty directly to an individual shareholder where the director is buying or selling shares to that shareholder. His Honour held that this result was based upon “the fundamental ethical rules of right and wrong” (at 219). In Mesenberg v Cord Industrial Recruiters Pty Ltd (1996) 14 ACLC 519, Young J found that the Glavanics case had shown that where a two-person quasi-partnership company was in its death throes, its directors owed duties to each other as well as to the company.

¹¹³ [1987] 1 All ER 114.

¹¹⁴ For example Metal Manufacturers Ltd v Lewis (1986) 4 ACLC 739; Statewide Tobacco Services v Morley (1990) 2 ACSR 405; Group Four Industries v Brosnan (1991) 9 ACLC 1181. For further discussion, see J Dodds Streeton, “Feminist Perspectives on the Law of Insolvency”, Aspects of Real Property and Insolvency Law, Adelaide Law Review, Research Paper No 6 (1994).

¹¹⁵ [1998] HCA48 (6August1998)

¹¹⁶ (1939) 63 CLR 649.

¹¹⁷ [1998] HCA 48 (6 August 1998) at paras 20-22.

¹¹⁸ R Campbell, “Women can still trust their husbands”, Canberra Times 12 August 1998 at 11.

¹¹⁹ Essentialism in feminist writing refers to the view that females (or males) have an essential nature (eg nurturing and caring versus aggressive and selfish) as opposed to differing by a variety of features bought about by social forces. Essentialism has also influenced corporate law theory: see C Mantziaris above n 27 at 285-289.

¹²⁰ S Corcoran, above n 38 at 218.