没有合法合同，承诺通常无效。

很多时候，我们中国人还是习惯相信于生意上的交情以及口头承诺。但在北美，白纸黑字才是王道。 如果您的远方表妹答应3个月内会把借您的30万还给您，但没有书面法律承诺，那在她“违约”时，法律很难保护您。 同样，如果您的供应商说给你打折但这没有显示在你们签的合同里，那这口头协议通常无效。 这个“无效”不是说法律不承认口头协议，而是事后很难证明你们曾有过这个约定。

合同签了就有法律效应，并且一般无法反悔。

反之，一般只要签了合法合同，那您就需遵守里面的所有条款。一个常见的例子是跟新房建筑商签的买卖合同。 在这繁琐的合同里，一般会有众多费用条款，延迟条款，以及多次交接条款。很多朋友是在交接时才知道这些已答应的条件。但因为已经签了，就必须履行。

另一个普遍的例子是股东协议书。 这份合同很重要，尤其是在股东日后起分歧时。什么时候发分红，可以融资多少次，公司出售是否需要所有人同意，股东去世后他的股份怎么处理？这些常见情况不提前规划好，日后如果矛盾无法解除，只能靠昂贵的上庭费去处理。

不是所有合同条款都合法合理 – 因此有可能合同没用

我们有些意识到合同重要性的客户，就十分积极的规划好了众多条款。但并不是所有条款都是合法合理的，例如：

• 任何跟立法有冲突的条款 – 加拿大最看重的是立法 legislation, 之后才是私人之间定的合同。因此，如果合同跟立法有冲突，那合同就无效 – 这也是为什么网上的合同模板不适用于很多情况。
  • 一个常见的例子是扣员工工资。 劳工法规定，员工工作了多少小时，就要按照合同上或立法的规定付工资。不能因为员工犯错或老板不满而扣工资（不过可以解除员工合同）。当然，如果员工的行为对公司造成了损失，可以向员工要求赔偿 – 但这跟扣工资必须是两码事。
  • 任何不“合理”的条款, 法院不会执行
    • 无偿条款 – 合同法的根基是用A 换 B – 用钱换服务或产品。因此，无偿或赠送条款一般不被法院认可。但 A 和 B 可以是任何东西，只要双方同意。比如，股东不一定要用钱去买股份，也可以用自己的专业技能和投入公司的时间去交换股份。
    • 过分欺压条款 – 最常见的是非竞争条款。此条款不能定的过于限制，比如要求离开的员工或股东永远不能参与软件开发的工作。一个比较合理的例子是要求离开的股东在5年内，10公里内，不能参加跟某某软件科技有关的工作。

总结

由此可见，合同不签不行，但签了也未必就万无一失。最好的方式是在专业资深的法律指导下，签写为您量身打造的合同。想多了解的朋友欢迎致电 905-597-9357 或微信varitylaw 跟我们预约首次免费咨询。

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There are many business vehicles that exist, each with a different degree of risk/liabilities and tax consequences, and each with its unique advantages and disadvantages.

Sole Proprietorship

Sole proprietorship is the simplest business structure, where you are the only owner of your business. Anyone who works with you are considered your employees or independent contractors.

Advantages:

• Easy and inexpensive to set up
• Working for yourself à less likely to have disagreements or stalemates with co-owners or partners

Disadvantages:

• Unlimited liability
  • All business earnings are your personal earnings
  • All business losses are your personal losses
  • If anyone sues your business, they can also come after your personal assets such as your car or house

Licensing

• While sole proprietorship is easy to set up and operate, you still need to obtain all relevant licenses required for your business
• There are federal, provincial, and municipal licensing requirements
• For most small businesses, the municipal license requirements are the most relevant, and those requirements may different significantly from city to city.
• Examples (City of Toronto): liquor license, commercial parking lot license, hair styling license.

Other Restrictions and Compliance Issues:

• Example: some Toronto areas are considered “Toronto’s Business Improvement Areas”; if your business is situated in those areas, you must follow their rules regarding whether and where you can place physical signs and how you can decorate your exterior physical premises

Tax:

• Very similar to employment income à all earnings and losses are included in your personal income, and then your personal income is taxed at the marginal tax rate that’s applied to individuals
• “Source of income”
  • Only income and losses in the same category can be used to deduct against each other
  • Example: capital losses may only be used to deduct capital gains, and cannot be used to deduct employment income

Partnership

Generally speaking, partnership refers to any relation that subsists between persons carrying on business together with a goal of earning profit. “Persons” may be ndividuals or corporations.

It’s essential to clearly define the partnership relationship via partnership contracts, because decisions made by one partner may be binding on the other partner(s).

Three Main Types of Partnerships

• General Partnership: each partner has unlimited liability, similar to a sole proprietorship
• Limited Partnership: has at least one general partner who has unlimited liability (meaning that partner’s personal assets may be claimed by creditors) and at least one limited partner who has limited liability (meaning that partner would only suffer losses up to the amount of money he/she put into the partnership)
• Limited Liability Partnership (LLP)
  • May only be used by certain type of professionals such as lawyers and accountants
  • Each partner’s business losses is limited to the money they put into the partnership
  • However, each partner is individually responsible for their own negligence or the negligence of staffs who are under the partner’s direct supervision and control; usually enforced by their professional licensing board (e.g. Law Society)

Tax:

• Partnership itself is not taxed
• All income and expenses are deducted against each other within the partnership — the “partnership” is considered a “source or category of income”
• The partnership net profit or loss (after income and losses are deducted against each other) is divided amongst the partners, and this profit/loss is included in each partner’s personal income for tax purposes

It’s very important to have well-drafted partnership agreements in place. Below are several considerations that should be in a partnership agreement:

• How to divide up assets and liabilities
• How much and what form of contributions must each partner make to the partnership
• What is the authority of each partner (e.g. can each partner individually obtain loans, seek investors, choose suppliers, issue cheques?)
• Are there any restrictions in transferring partnership interests?
• Confidentiality and non-competition clauses
• Dispute resolution – what happens if the partners disagree on a major decision and reach a stalemate?

Partnership vs. Co-ownership

• Co-ownership: consist of persons who own property together
  • each owner (if they are tenants in common) has their own separate interest in the property and can freely deal or sell his/her interest in property
• Partnership: each partner has no separate interest in any property owned by the partnership
  • Each partner may only sell his/her partnership interest, but not his/her interest in the property owned by the partnership.

Corporations

Unlike other business structures, corporation is a legal entity or “person” by itself.

Advantages:

• Shareholders of a corporation has limited liability, as anyone who sues the Corporation can only come after the Corporation’s assets, and cannot go after the shareholders’ personal assets; hence, the shareholders’ interests are limited to money they have put into the Corporation
  • Caveat: if a shareholder use their personal capacity to guarantee an obligation on the Corporation’s behalf, then that shareholder is personally bound; example: if a shareholder decided to use his house to guarantee a loan given to the corporation, then upon default the bank can come after that house
• Corporations have “perpetual existence”à corporation continue to exist despite frequent changes in ownership
  • A corporation may only end or be dissolved by a resolution made by the majority of shareholders, by court order, or by operations of legislations (e.g. corporation breached legislations, causing its dissolution)
  • To avoid unwanted dissolutions due to court order or breach of legislations, ensure you have a good corporate lawyer to guide you
• Corporations are good tool for estate planning
  • Leaving corporate shares to beneficiaries is an easy and usually tax-free way (if it’s a private corporation) of passing on your assets.

Taxes

• Corporation is taxed by itself
• Then, the corporate earnings are distributed to shareholders, and those dividends are taxed again at the individual level
• There is usually favourable tax rates for corporations and for dividends (it’s important to consult a corporate lawyer and/or an accountant for more details)

Other Types of Business Structures

In addition to those business structures, there are other business types including Joint Ventures, Licensing Arrangements, Franchises, etc. Those are beyond the scope of this article, but I may write another article dedicated to them in the future.

An essential element of those structures is having sufficient written agreements in place at the beginning.

Conclusion

As evident from the above, there are many structures to choose from when starting your own company.

It’s crucial to choose the most suitable business vehicle at the beginning to avoid costly and complicated situations and litigations down the road.

Of course, choosing wisely at the beginning can also reduce your risks, facilitate the business process, and help you save on taxes.

Varity Law Pro. Corp. is a business boutique law firm that specializes in Economic Immigration and Private Lending Transactions & Mortgage Enforcement. We also offer real estate purchase/sale closings, corporate/commercial law services, and wills & estates law services in support of our specialization areas. To find out more about us, kindly visit our website at www.varitylaw.ca and refer to our handy brochure in our front page.

This article is only meant to give general legal information. For legal advice on your legal situation, please consult a legal professional. 

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