ABSTRACT
Thus far the book has been focusing, primarily, although far from exclusively, on what is the doctrinal position concerning the responsibilities that are owed by directors to creditors, and providing some commentary of the positions in jurisdictions other than the UK. Chapter 14 is, perhaps, the main exception to the general focus on doctrinal issues as it endeavoured to develop a theoretical framework which could be implemented to deal with determining how directors should act when subject to a responsibility to creditors at common law. In this part of the book, we now change emphasis and examine, in Chapters 19 and 20, whether directors should, from a theoretical perspective, owe the responsibilities to creditors that we have considered. In other words, are the wrongful trading provision and the obligation of directors to consider creditor interests as part of the directors’ duty to their company (or, possibly, the directors’ duty to creditors) normative? These issues warrant significant consideration because there have been some divergent views expressed in the literature on the topic. It should be said that there is no substantial examination of fraudulent trading, and the reason for this is given later in this chapter. After a consideration of the theoretical issues affecting directors’ duties to creditors and wrongful trading, the part examines, in Chapter 21, whether it is possible for the parties to opt out of the application of the duties to creditors, and the fraudulent trading and wrongful trading provisions, and whether the parties should be able to do so.
