Ultra vires

Wilmington, Delaware is the incorporation capital of the United States.[1] Delaware has largely abolished ultra vires in relation to corporations under the Delaware General Corporation Law.[2]

Ultra vires is a Latin phrase meaning "beyond the powers". If an act requires legal authority and it is done with such authority, it is characterised in law as intra vires ("within the powers"). If it is done without such authority, it is ultra vires. Acts that are intra vires may equivalently be termed "valid" and those that are ultra vires "invalid".

Legal issues relating to ultra vires can arise in a variety of contexts:

  • Companies and other legal persons sometimes have limited legal capacity to act, and attempts to engage in activities beyond their legal capacity may be ultra vires.[3] Most countries have restricted the doctrine of ultra vires in relation to companies by statute.
  • Similarly, statutory and governmental bodies may have limits upon the acts and activities which they legally engage in.[4]
  • Subordinate legislation which is purported passed without the proper legal authority may be invalid as beyond the powers of the authority which issued it.[5][6]

Corporate law

In corporate law, ultra vires describes acts attempted by a corporation that are beyond the scope of powers granted by the corporation's objects clause, articles of incorporation or in a clause in its Bylaws, in the laws authorizing a corporation's formation, or similar founding documents. Acts attempted by a corporation that are beyond the scope of its charter are void or voidable.

  1. An ultra vires transaction cannot be ratified by shareholders, even if they wish it to be ratified.
  2. The doctrine of estoppel usually precluded reliance on the defense of ultra vires where the transaction was fully performed by one party.
  3. A fortiori, a transaction which was fully performed by both parties could not be attacked.
  4. If the contract was fully executory, the defense of ultra vires might be raised by either party.
  5. If the contract was partially performed, and the performance was held to be insufficient to bring the doctrine of estoppel into play, a suit for quasi-contract for recovery of benefits conferred was available.
  6. If an agent of the corporation committed a tort within the scope of his or her employment, the corporation could not defend on the ground the act was ultra vires.

Several modern developments relating to corporate formation have limited the probability that ultra vires acts will occur. Except in the case of non-profit corporations (including municipal corporations), this legal doctrine is obsolescent; within recent years, almost all business corporations are chartered to allow them to transact any lawful business. The Model Business Corporation Act of the United States states that: "The validity of corporate action may not be challenged on the ground that the corporation lacks or lacked power to act." The doctrine still has some life among non-profit corporations or state-created corporate bodies established for a specific public purpose, such as universities or charities.

United States

According to American laws, the concept of ultra vires can still arise in the following kinds of activities in some states:

  1. Charitable or political contributions
  2. Guaranty of indebtedness of another
  3. Loans to officers or directors
  4. Pensions, bonuses, stock option plans, job severance payments, and other fringe benefits
  5. The power to acquire shares of other corporations
  6. The power to enter into a partnership

United Kingdom

Historically all companies in the United Kingdom were subject to the doctrine of ultra vires and any act which was outside of the objects specified in a company's memorandum of association would be ultra vires and void.[3] That result was commercially unpalatable, and led to companies being formed with extremely wide and generic objects clauses permitting a company to engage in all manner of commercial activities.[7]

The position was changed by statute by the Companies Act 1985 which largely abolished the doctrine in relation to commercial companies. The position is now regulated by the Companies Act 2006, sections 31 and 39, which similarly greatly reduces the applicability of ultra vires in corporate law, although it can still apply in relation to charities and a shareholder may apply for an injunction, in advance only, to prevent an act which is claimed to be ultra vires.

In many jurisdictions, such as Australia, legislation provides that a corporation has all the powers of a natural person[8] plus others; also, the validity of acts which are made ultra vires is preserved.[9]

Other Languages
Cymraeg: Ultra vires
한국어: 대표권 제한
हिन्दी: अधिकारातीत
italiano: Ultra vires
日本語: 権限
polski: Ultra vires
srpskohrvatski / српскохрватски: Ultra vires
svenska: Ultra vires