As a consequence of the economic downturn corporate practitioners are witnessing an increase in takeovers and mergers. Three recent cases highlight a range of issues that may arise in share acquisition transactions, the most common form of corporate takeover in Hong Kong. These issues concern: (i) drafting of accounts warranties; (ii) conduct of due diligence; (iii) auditor's liabilities for accounts; and (iv) remoteness of damages for breach of a share acquisition agreement.

The Hong Kong case of Asialand Ltd and Advance Pharmaceutical Ltd v Lam Yiu Cho [2007] HKCU 187 illustrates the importance of accounts warranties and due diligence. It can be compared and contrasted with the English case Man Nutzfahrzeuge AG v Freightliner Ltd and auditors [2007] EWCA Civ 910, which featured slightly different facts in respect of the due diligence and a very different outcome, and which further reaffirmed the important role of auditors. Finally, another English case 4 Eng Ltd v Harper and Simpson [2007] EWHC 1568 (Ch) deals with the kinds of losses recoverable in cases of fraudulent misrepresentation and their remoteness, including the possibility of awarding damages based on the lost opportunity to acquire an alternative target.

The Asialand Case

This case concerned the acquisition by Asialand of the entire equity interest in Advance Pharmaceutical. The defendants were the owners of the shares in Advance and guarantors/warrantors under the share acquisition agreements. The first shares sale under the agreements was completed in September 2002, around the date of signing, while the remaining shares sale would complete three years later.

By the latter date, however, Asialand considered that the defendants had made misrepresentations as to Advance's financials. It alleged that certain transactions which would affect Advance's accounts receivable, promotion expenses and sales turnover were not entered into the accounts at the material time, and as such the purchase price was inflated. The relevant amount, approximately HK$3.5 million, was not substantial compared to the purchase price.

Asialand argued that the defendants had acted fraudulently or recklessly and had breached their duty of care. The defendants applied to strike out these claims and asked for specific performance of the agreements.

Drafting of Accounts Warranties
Asialand claimed that the purchase price was agreed between the parties based on the Advance's profit before tax stated in (i) the audited accounts of Advance for the year ending 31 March 2001 and for the period from 1 April 2001 to 31 July 2001; and (ii) the unaudited management accounts for the year ending 31 March 2002 (collectively, the accounts).

The agreements, however, contained no accounts warranties covering these periods, nor any written references (such as in the recital) to the effect that the purchase price was to be assessed upon the profit before tax as determined by the accounts. Further, the only accounts exhibited to the agreements were the management accounts for 31 March 2002, not the audited accounts for the year ended 31 March 2001 nor the audited accounts to 31 July 2001, which were the accounts in question.

The 31 March 2001 accounts had been certified by auditors on 14 November 2001 and approved by the Advance board at a meeting the same day.

Exclusion Clauses
The agreements contained exclusion clauses stipulating that the defendants had provided all the necessary information (including the accounts) for conduct of due diligence by Asialand, that Asialand had had the opportunity to examine the books of account and all other records of Advance, and that thereafter Asialand and Advance would not assert against the defendants any claims arising from any problems with these documents. The exclusion clauses further precluded reliance by Asialand on any previous warranty or undertaking other those in the agreements.

Such clauses are common in share acquisition agreements. Whether they can protect the vendor in a transaction where irregularities arise will depend on the facts of the case.

Due Diligence
During the due diligence exercise, a director of Asialand became aware that there was some uncertainty over the recoverability of some or all of the amounts in the accounts in question, and the auditors had made reference to this uncertainty when certifying the accounts.

When this matter was raised, two of the three vendors of shares agreed to pay some of the difference out of their own pockets; the third vendor refused to comply. It was in these circumstances that the first sale of shares was completed.

Fraudulent Misrepresentation
It is settled that the following elements must be established to make out an action of fraudulent or reckless misrepresentation: (i) a representation of fact (by words or by conduct - mere silence is not enough); (ii) made with knowledge that it is false (wilfully false, or made in the absence of any genuine belief that it is true, or made recklessly and without caring whether it is true); (iii) made with the intention that it should be acted upon by the claimant (or by a class of persons which will include the claimant); (iv) the claimant has acted upon the false statements; and (v) the claimant has sustained damage by so doing.

The court in Asialand held that representations and warranties emerged only from the agreements. Based on the terms of the agreements, it held that there was no representation of fact made by the defendants by words or conduct; thus, no representation known to be false, with the intention that it be acted on, that was acted on and from which the claimant sustained loss.

Accounts
It was further held that if the accounts for 31 March 2001 were false and amounted to a representation, that representation was made to Advance and its board of directors only, not to Asialand. Asialand as purchaser was neither a director nor a shareholder at the relevant time.

As we shall see from the Freightliner and Caparo cases, the loss suffered by Asialand as purchaser was likely to be too remote to permit it to sue the auditors of Advance for its reliance on the audited accounts. However, there were two additional intervening factors in Freightliner.

The Freightliner Case

Western Star sold its wholly owned subsidiary ERF (Holdings) Plc, a UK truck manufacturer, to Man Nutzfahrzeuge AG (MN), the plaintiff, on 8 March 2000. A UK-based international audit firm had been appointed as auditors for ERF in March 1991 and continued to act as such. Freightliner later acquired Western Star and assumed the liabilities accordingly.

The financial controller of ERF, a Mr E, had at material times persistently manipulated the accounts by submitting false VAT returns, with the result that ERF received regular repayments of tax to which it was not entitled. False journal entries were disguised by producing a false reconciliation. The auditors failed to spot the fraud and signed off the audited accounts for the years ending 30 June 1998 and 30 June 1999 without any qualification.

In August 1999, representatives of MN and Western Star negotiated on the purchase price for ERF. Mr E was present at the material times and answered many questions put forward by MN and its accountants without at any time informing the management of ERF or Western Star that the accounts had been falsified.

After the sale and purchase, MN's accountants, in the course of their audit for the 31 December 2000 accounts of ERF, identified the discrepancy between the purchase ledger and the purchase ledger control account. Investigations revealed the relevant amount to be about ?00 million as at 30 June 2001, which was material compared to the purchase price.

MN brought proceedings against Freightliner to recover its losses arising out of the purchase of ERF. MN's claims were based on (i) fraudulent misrepresentations by Western Star under the share purchase agreement; and (ii) the tort of deceit. A more straightforward warranty claim under the sale and purchase agreement was already time barred as such a claim had to be brought within 12 months of completion of the sale and purchase agreement.

Fraudulent Misrepresentation and Deceit
The court held that the knowledge of Mr E as to the falsity of the representations on which MN relied could not be treated as knowledge of Western Star for the purposes of deciding whether the representations contained in the sale and purchase agreement were made fraudulently. Mr E was not a director of the vendor.

However, the claim in deceit succeeded. The court was satisfied that MN was induced to enter into the agreement by fraudulent statements made by Mr E about ERF's accounts, and that Western Star was liable for that deception on the grounds that Mr E was speaking on behalf of Western Star whenever he provided MN with information about ERF's accounts or its financial position generally.

The tort of deceit overlaps with misrepresentation, but it does not require that the parties be in a contractual relationship. For the claim to succeed, the claimant must show that: (i) the defendant made a representation to him; (ii) the representation was false at the time it was acted upon; (iii) there was an element of dishonesty (carelessness will not suffice); (iv) the representation was intentional; (v) the claimant was, in fact, deceived (the representation was known to him); and (vi) the claimant suffered loss or damage.

If the effect of the deceit is to cause the claimant to enter into a contract, then a claim may also be made under s 3(1) of the Misrepresentation Ordinance (Cap 284). The effect of this is to shift the burden of proof, requiring the defendant to show good grounds for believing his representation to be true.

In cases of either misrepresentation or deceit, mere silence is unlikely to suffice, and it seems that Asialand's case may still have failed if it was brought under the tort of deceit. Although Freightliner shows that the threshold for proof of knowledge of the defendant is lower in deceit than in misrepresentation, the exclusion clauses in Asialand would also undermine a deceit action as the element of dishonesty would be regarded as missing; there is no need to prove dishonesty in misrepresentation.

The Auditors
Proceedings were also brought by Freightliner as a third party action for damages against the auditors. At first instance and on appeal, at issue was whether the auditors?knowledge was sufficient to found a duty of care to Western Star (and, so far as relevant, to MN) in relation to the loss actually suffered, whether it was foreseeable that Western Star would rely on the accuracy of the accounts in its dealings with MN, and whether it was foreseeable that the nature of Mr E's participation in the negotiations would give rise to Western Star incurring liability to MN for deceit.

The court cited the following statement in Caparo Industries plc v Dickman [1990] 2 AC 605, as endorsed by Lord Hoffman in South Australia Asset Management Corp v York Montague Ltd [1997] AC 191:

"It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless";

and followed the guidance provided by the House of Lords in Customs and Excise Commissioners v Barclays Bank PLC [2007] 1 AC 181, where the court summarised the position thusly:

"In these cases in which the loss has been caused by the claimant's reliance on information provided by the defendant, it is critical to decide whether the defendant (rather than someone else) assumed responsibility for the accuracy of the information to the claimant (rather than to someone else) or for its use by the claimant for one purpose (rather than another)."

If the necessary relationship (or proximity) exists in relation to the economic loss, that relationship and the foreseeability of loss will make it unnecessary to undertake any further inquiry into whether it would be fair, just and reasonable to impose liability.

The claim against the auditors failed. The court refused to hold that the auditors had assumed responsibility for the use which a dishonest employee of the audited company might make of the accounts in the context of the parent company's obligations for the sale of the company. Adapting the test in Barclays Bank, the court found it impossible to hold that the auditors (rather than Western Star) assumed responsibility for the use by Mr E, on behalf of Western Star, of the information which the auditors had provided to Western Star.

If Mr E had not been in a position to make the relevant misrepresentations, the parties may have placed greater reliance on the work done by the auditors during the discussion and negotiation of the sale and purchase agreement. The culpability of the auditors may have been higher in that case.

The 4 Eng Case

4 Eng acquired a company from Harper and Simpson (H&P). After the acquisition was completed it became apparent that the vendors had made false statements about the company's financial position: orders from its biggest customer had been procured by bribes. The business from this customer would be lost, and the company might be liable for significant amounts in compensation.

4 Eng brought a claim against H&P for fraudulently claiming that there was no reason for the customer to terminate its relationship with the company. Summary judgment was obtained and damages were assessed. The court discussed the kinds of losses recoverable in these circumstances, and damages were awarded based on the lost opportunity to purchase an alternative acquisition target. In this case, the purchasers did not seek to rely on warranties in the sale and purchase agreement.

Damages Claimed
4 Eng claimed damages under the following heads:

(a) Purchase price for the company
The court held that 4 Eng was entitled to recover the purchase price and the costs of the acquisition.

(b) Liability for salaries post-completion
The court held that salaries paid for the purposes of investigating the fraud were a recoverable loss, on the condition that the loss of opportunity claim (below) did not succeed. This was not an award of damages for disruption to the business through loss of management time, but instead for a liability to pay managers out of normal working hours for carrying out the investigation. By the same token, if 4 Eng had hired external forensic accountants or lawyers to carry out investigations, the loss would be the expenses incurred in hiring these professionals.

(c) Loss of opportunity to purchase and profit from an alternative acquisition target
4 Eng claimed and proved that, if it had not been induced by fraudulent misrepresentations to buy the company, it would have bought an alternative company that would have earned substantial profits and increased in capital value. This was by far the biggest head of damage.

H&P made the following arguments, without success:

(d) 4 Eng could not claim damages for the losses in paragraphs (a) and (b) above and at the same time for damages for loss of a chance to purchase another company (the alternative). Nevertheless, the court decided that a combination of claims was permissible where loss of a chance was caused by deceit.

(e) Any claim for loss of the capital profits of the alternative, being an increase in the value of the alternative between the date of assumed acquisition and the date of assumed sale, was too remote and speculative to be recoverable. The court decided that foreseeability was irrelevant in an action for deceit and that this type of loss was recoverable.

(f) Damages based on income earned by the alternative and on the increase in the alternative's value could not both be recoverable. The court disagreed and ruled that 4 Eng had been deprived, by fraud, of the opportunity to make both income and capital profits, and was therefore entitled to damages for both.

In assessing damages, the court applied a discount to reflect the likelihood of the owners of the alternative selling their shares to 4 Eng, and also the possibility that under 4 Eng's ownership the alternative's profits could have been lower than had actually been the case.

Lessons Learned

Although the sale and purchase agreement is essentially a record of the consensus and understanding between the vendor and the purchaser, and while negotiations will be a matter of the parties exercising their bargaining power with various 'gives and takes' and sharing of risks, it is clear from the decided cases that the parties should observe certain general principles in order to protect their interests. As commercial lawyers, our task is always to set out the entirety of the understandings and agreement of the parties in the documentation, so as to avoid future disputes or to resolve (or provide mechanism to resolve) such disputes before they are litigated.

Drafting the Share Acquisition Agreement
Accounts warranties are of paramount importance in sale and purchase agreements. The accounts should give a true and fair view of not just the figures but also the business and operations of the company.

It should be the vendor, not the target company, representing and warranting the truthfulness and fairness of the accounts. The agreement is between the vendor and the purchaser. The auditor's responsibilities are to the then board of directors and shareholders of the target company. That being the case, to further protect the puchaser's interests a wide and general warranty is recommended, such as that all material matters have been revealed by the vendor and there is no material omission, disclosure of which would lead a reasonable purchaser to terminate the deal and acquire an alternative target. Applying 4 Eng, breach of such a warranty may amount to deceit, entitling the purchaser to rescind the share acquisition agreement and recover the whole purchase price and opportunity costs.

For its own protection, the purchaser should review carefully the terms in the agreement and require the vendor to provide full indemnity against claims, apart from breach of representations and warranties in the sale and purchase agreement under Freightliner, from other specified third parties such as banks, lenders and/or subsequent purchasers of that company's share capital who may rely on any representations that the audited accounts give a true and fair view of the assets, liabilities and financial position of the company as at the date of the audit.

To protect the interests of the vendor, applying Asialand, all representations and warranties should be 'carved out'; the agreement should be totally silent on matters relating to the accounts. However, an express exclusion clause of this nature is unlikely to be acceptable to the purchaser and may be an immediate deal breaker. Moreover, time or other limitation clauses in sale and purchase agreements may not be conclusive and may still be subject to action under the tort of deceit. Nevertheless, since the tort will always rely on the facts of the case and therefore the outcome may be uncertain, an express limitation clause is clearly preferable.

Disclosure and Due Diligence
Instead of casual disclosure by words or by inspection, written disclosure letters should be used such that matters are disclosed specifically and fairly by the vendor and the purchaser's interests are protected.

The sale and purchase agreement should further stipulate that the purchaser relies only on the representations and warranties in the sale and purchase agreement, and that only a disclosure letter may qualify such representations and warranties. Further, the contents of a disclosure letter will be 'automatically' represented as true and correct by the vendor to the purchaser and relied upon accordingly.

For the purchaser, due diligence should not never be just a mere paper exercise. It is important to interview the persons involved and record the statements made and interview outcomes. The vendor should always be careful as to its representatives and the representatives of the target giving representations and make sure that these will not mislead the purchaser.

Lai Yang Chau, Eugene
Solicitor

股份收購交易中的問題
黎瀛洲律師論及帳目保證書、盡職查證、核數師法律責任及損害賠償的可預見程度等方面的一些問題，並分析了法庭在這方面的回應。

隨著經濟的下滑，公司法的律師看到越來越多 的接管與合併案件。近期的三宗案件突顯出股份收購交易（在香港，這是最常見的企業收購形式）中可能產生的一系列問題。這些問題涉及到：(i) 草擬帳目保證書；(ii) 開展盡職查證；(iii) 核數師對帳戶的法律責任；(iv) 違反股份收購協議的損害賠償的疏遠程度。

香港案件Asialand Ltd and Advance Pharmaceutical Ltd v
Lam Yiu Cho [2007] HKCU 187顯示了帳戶保證書和盡職查證的重要性。可以將其與英格蘭案件 Man Nutzfahrzeuge AG v Freightliner Ltd and Auditors [2007] EWCA Civ 910相比較與進行對比，後者在盡職查證方面的事實稍有不同，而結果卻大相逕庭，這進一步證實了核數師的重要職能。最後，另一宗英格蘭案件4 Eng Ltd v Harper and Simpson [2007] EWHC 1568 (Ch) 涉及到欺詐性失實陳述情形中的可追討損失類別及其疏遠程度，包括基於失去機會取得替代的目標而判給損害賠償的可能。

Asialand案件

該案件涉及到Asialand收購Advance Pharmaceutical的所有股權。被告人是Advance股份的所有人，並且是股份收購協議規定的擔保人∕保證人。依照協議進行的首次股份出售於2002年9月完成，距簽署日期不遠，而其餘股份出售會在3年後的2005年9月完成。

然而到後一個日期時，Asialand卻認為被告人對Advance的財務狀況作出失實陳述。該公司指稱，將會影響Advance的應收帳款、促銷費用及銷售收入的某些交易未在關鍵時刻入帳，因此收購價格被誇大。相關金額（約合350萬港元）與收購價格相比並非十分重大。

Asialand指出，被告人犯有欺詐和魯莽行為，並違反了謹慎責任。被告人申請駁回上述指控，並要求強制履行協議。

草擬帳目保證書
Asialand聲稱，收購價格由雙方商定，乃是基於Advance在下列資料中陳述的稅前利潤：(i) 截至2001年3月31日為止的年度及2001年4月1日至2001年7月31日期間的經核數帳目；(ii) 截至2002年3月31日為止的年度的未經核數管理帳目（統稱為帳目）。

然而，協議並不包含涉及上述期間的帳目，亦沒有任何書面參考資料（如在敘文中所述）可以證明收購價格將如帳目所確定的那樣，依照稅前利潤加以評估。另外，協議中展示的唯一帳目是2002年3月31日的管理帳目，既非截至2001年3月31日為止的年度的經核數帳目，亦非截至2001年7月31日為止的經核數帳目，而那是案件相關帳目。

2001年3月31日的帳目於2001年11月14日得到核數師的核證，並在同日的會議中得到Advance董事局的批准。

豁除條款
協議包含豁除條款，其中規定：被告人已經提供所有必要資料（包括帳目），以便Asialand開展盡職查證，Asialand已有機會核查Advance的帳冊及所有其他記錄，並且此後，Asialand和Advance將不會對被告人提出因上述文件的任何問題而產生的任何申索。豁除條款進而還禁止Asialand依賴協議規定以外的任何先前保證或承諾。

此類條款在股份收購協議中頗為常見。它們是否能在出現不符合規定的交易中保障賣方，將視乎案情而定。

盡職查證
在行使盡職查證時，Asialand的一位董事發現，相關帳戶部分或全部金額可否追討存在不確定因素，核數師在認證帳目時，提述了這種不確定性。

提出這個問題後，三名股份賣方中的兩名同意用自己的資金支付某些差額，而第三名賣方拒絕妥協。首次股份出售正是在上述情形下完成的。

欺詐性失實陳述
確定的一點是，必須確立下列要件，方可構成欺詐或魯莽的失實陳述行為： (i) 作出事實陳述（通過語言或行動—僅僅沉默是不夠的）；(ii) 在作出陳述時，明知其為虛假（有意作假；在並非真正相信其為真確的情況下作出陳述；或者魯莽或不顧其是否真確而作出陳述）；(iii) 在作出時，有意令申索人（或包括申索人的某類人）據此行動；(iv) 申索人依照該虛假陳述採取行動；並且 (v) 申索人已因如此行事而蒙受損害。

在Asialand案件中，法院認為，陳述與保證僅從協議中產生。依照協議條款，法院認為被告人並未通過語言或行為作出任何事實陳述；因而，並不存在明知為虛假，但有意讓人據此行動的陳述，申索人亦未據此行動和蒙受損失。

帳目
法院進而認為，假如2001年3月31日的帳目為虛假，並構成一項陳述，則該陳述僅向Advance及其董事局，而非向Asialand作出。作為購買人，Asialand在相關時間既非董事，亦非股東。

正如我們將從Freightliner及Caparo案件中看到的那樣，Asialand作為收購人所遭受的損失可能過於疏遠，使其無法因依賴該等經核數帳目而能夠起訴Advance的核數師。然而Freightliner案件中存在另外兩項干預因素。

Freightliner案件

2000年3月8日，Western Star將其全資附屬公司ERF (Holdings) Plc
（一家英國卡車製造商）出售給Man Nutzfahrzeuge AG（MN）（原告人）。1991年3月，一家總部位於英國的國際核數機構被指定為ERF的核數師，並持續以該身份行事。Freightliner隨後收購了Western Star，並承擔相應的負債。

ERF的財務總監（E先生）在相關時刻持續操弄帳目，出具虛假的增值稅退稅記錄，使ERF獲得並不享有的經常性稅款退還。出示虛假的對帳表，掩蓋了不確的日記帳登錄。核數師未能察覺該欺詐行為，而簽署了經核數的截至1998年6月30日和1999年6月30日為止的年度帳目，並且未出具保留意見。

1999年8月，MN和Western Star的代表就ERF的收購價格進行談判。E先生於相關時刻在場，並回答了MN及其會計師提出的許多問題，但未在任何時候告知ERF或Western Star的管理層該帳目已被偽造。

買賣結束後，MN的會計師在對ERF的2000年12月31日的帳目進行核數時，發現採購分類帳與採購分類帳控制帳戶之間的出入。調查顯示，2001年6月30日的相關金額約為1億英鎊，與收購價相比，這筆金額相當巨大。

MN對Freightliner提起法律程序，以追討收購ERF造成的損失。MN的申索基於以下幾點：(i) Western Star在股份收購協議中作出欺詐性失實陳述；(ii) 欺騙侵權。根據買賣協議提出的一項更為直接的保證申索的時限已過，因為該等申索必須在買賣協議完成後12個月內提出。

欺詐性失實陳述與欺騙
法院認為，E先生瞭解MN所依賴的陳述為虛假，並不能當作Western Star對此知情，並據此確定買賣協議中所載的陳述具有欺詐性。E先生並非賣方的董事。

然而，欺騙申索卻得以勝訴。法院信納，MN因E先生在ERF帳目上所作的欺詐性陳述而被誘使簽定協議，而Western Star對該欺騙行為負有法律責任，因為每當E先生向MN提供關於ERF帳目或其總體財務狀況的資料時，他是Western Star的代言人。

欺騙侵權與失實陳述重疊，但這並不要求雙方具有合約關係。申索要取得勝訴，申索人必須表明：(i) 被告人向其作出陳述；(ii) 在依照陳述行事時，該陳述為虛假；(iii) 存在不誠實成分（不僅是不小心）；(iv) 陳述為故意；(v) 申索人事實上受到欺騙（該陳述為其所知悉）；(vi) 申索人蒙受損失或損害。

假如欺騙的結果是導致申索人簽訂合約，那麼還可以根據《失實陳述條例》（第284章）第3(1)條提出申索。這樣做的作用在於轉移舉證責任，要求被告人提出相信其陳述為真確的適當理由。

在失實陳述或欺騙案件中，只是保持緘默並不足夠；這樣看來，假如按欺騙侵權提起訴訟，Asialand仍可能敗訴。雖然Freightliner案件表明，在欺騙訴訟中證明被告人知情的門檻要比在失實陳述訴訟中低，但Asialand案件中的豁除條款亦將削弱欺騙訴訟，因為「不誠實」這一要素被視作不存在；失實陳述訴訟中則無須證明存在不誠實。

核數師
作為第三方訴訟，Freightliner還對核數師提起法律程序，要求給予損害賠償。在原訟和上訴中，爭議點在於：核數師的知情是否足以在實際蒙受損失方面建立對Western Star（以及在相關情況下對MN）的謹慎責任；是否可以預見Western Star將會在其與MN的交易中依賴帳目的準確性；是否可以預見E先生參與談判的性質會造成Western Star因欺騙而須對MN承擔法律責任。

法院引述了Caparo Industries plc v Dickman [1990] 2 AC 605案件中的下列陳述，Lord Hoffman在South Australia Asset Management Corp v York Montague Ltd [1997] AC 191案件中對此首肯：

「簡單詢問A是否對B負有謹慎責任從來就不足夠。通常需要參考A必須採取謹慎行動使B免於遭受的損害類別，從而確定該責任的範圍」

法院還遵循了上議院在Customs and Excise Commissioners v Barclays Bank PLC [2007] 1 AC 181案件中提供的指引， 並概述其立場如下：

「在上述因申索人依賴被告人提供的資料而造成損失的案件中，必須確定被告人（而非其他人）是否對就該資料的準確性對申索人（而非其他人）而須承擔責任，或者對申索人將該資料用於某一目的（而非其他目的）而須承擔責任。」

假如與經濟損失存在必要的關係（或臨近性），這種關係及損失的可預見性，可促使無須開展進一步的查證，瞭解施加法律責任是否公平、公正、合理。

核數師提出的申索遭到敗訴。法院認為，就該公司的出售，母公司在這方面所負有之義務而言，假如經核數的公司的不誠實僱員通過某種方式利用帳目，核數師無須對此負責。法院採用 Barclays Bank 案件中的驗證，裁定不可能認定核數師（而非Western Star）須對E先生（代為 Western Star）利用核數師向Western Star提供資料的方式承擔責任。

假如E先生無法作出相關的失實陳述，則各方可能會更多依賴核數師就買賣協議的協商與談判過程中所完成的工作。在這情況下，核數師的罪責可能更重。

4 Eng案件

4 Eng向Harper and Simpson (H&P)收購了一家公司。收購完成後，人們發現賣方對公司的財務狀況進行了虛假陳述：來自其最大客戶的訂單是通過賄賂取得的。來自該客戶的業務將會失去，且公司可能有責任須賠償鉅款。

4 Eng向H&P提出申索，原因是其欺詐性地宣稱該客戶並無理由終止與公司的關係。法庭頒發了簡易判決，並對損害賠償作出評估。法院討論了在上述情形中可以追討的損失類別，並基於失去收購替代收購目標的機會而判給損害賠償。在該案件中，收購人並沒有尋求依據買賣協議中的保證條款。

申索損害賠償
4 Eng就以下各項目之損害賠償提出申索：

(a) 公司收購價
法院裁定，4 Eng有權追討收購價及收購成本。

(b) 收購完成後的薪資責任
法院裁定，為調查欺詐而因支付的薪資屬於一項可追討損失，前提是以下就機會損失而提出的申索並沒有取得成功。這並非由於因損失管理層的時間而判給業務中斷的損害賠償，而是承擔法律責任，付給經理人在正常工作時間以外開展調查的費用。同樣道理，假如4 Eng 聘請了外部鑒證會計師或律師開展調查，損失額將是聘請上述專業人士所招致的費用。

(c) 失去收購替代的收購目標並因而獲利的機會
4 Eng 聲稱並證明，假如不受欺詐性失實陳述的誘使而收購該公司，它本來會收購另一家公司，這本來會令其賺取高額利潤，並增加資本價值。與其他相比，這顯然是最大的損害賠償類別。

H&P作出以下未為法院所接納的爭辯：

(d) 4 Eng不能因上述段落(a) 和 (b)的損失申索損害賠償，同時又因失去收購另一家公司（替代對象）的機會而申索損害賠償。不過，法院裁定假如失去機會是因欺騙所造成，可以允許將申索合併。

(e) 任何針對替代對象的資本利潤（即在假定收購日與假定出售日的期間替代對象價值的上升）的失去而提出的申索，乃過於疏遠和帶有投機，因此不能追討。法院裁定，在欺騙訴訟中，預見性乃屬無關宏旨，而此類損失可以追討。

(f) 不能同時追討基於替代對象的盈利和替代對象價值上升的損害賠償。法院不同意該項觀點，並裁定欺詐剝奪了4 Eng取得收入及資本利潤的機會，因此4 Eng有權獲取兩者的損害賠償。

在評定損害時，法院運用一個折扣率反映替代對象的所有人向4 Eng出售股份的機率，以及在4 Eng取得所有權的情況下，替代對象的盈利可能低於實際水平的可能性。

吸取的教訓

雖然買賣協議本質上是賣方與買方之間共識和諒解的記錄，而談判實質上是雙方行使議價能力（其中涉及各項「付出和收取」）並分享風險，但經判決的案例明顯表明，雙方應當遵守某些通用原則，以便保障自身利益。作為商務律師，我們的任務始終是訂明雙方在文件中達成的全部共識與協議，以求避免今後的爭議或在提交訴訟前解決（或提供機制以解決）此類爭議。

草擬股份收購協議
在買賣協議中，帳目保證書非常重要。帳目不僅應當真實、公平地體現數字，並且需要反映出公司的業務與營運。

應當由賣方而非目標公司來陳述並保證帳目的真實性與公平性。協議是在買賣雙方間達成。核數師是對目標公司當時的董事局與股東負責。儘管如此，為進一步保障收購人的利益，建議採取廣泛而通用的保證，確保賣方已經披露所有關鍵事項而不存在重大遺漏，而披露該等事項將使具理智的買方終止交易並收購替代的目標。 在適用4 Eng一案方面，違反該等保證可能構成欺騙，從而使收購人有權取消股份收購協議，並追討全部收購價格和機會成本。

為了保護自己，收購人應當細心審核協議條款，並要求賣方提供全額彌償（除了根據Freightliner判例，違反買賣協議中的陳述與保證外），免受其他特定第三方的申索，例如：銀行、借款人及∕或該公司股本的後續購買人，他們可能依賴任何這樣的陳述，即：經核數帳目真實、公平地反映公司在核數當天的資產、負債及財務狀況。

在應用Asialand一案的判例以保障賣方的利益方面，應當「摒除」所有陳述與保證；協議應當對涉及帳目的事宜不置一詞。然而，這種性質的明確豁除條款很難為收購人所接受，並可能立即導致交易破裂。而且，買賣協議中的時間或其他限制條款可能並非結論性，仍可能按欺騙侵權而須面對訴訟。不過，由於侵權始終須依賴案情，因此結果可能並不明朗，所以很明顯需要訂立明確的限制條款。

披露與盡職查證
應當使用書面披露函，使有關事宜得到賣方明確、公平地披露，收購人的利益得到保障，而不應當通過說話或檢查進行非正式的披露。

買賣協議應當進一步規定，收購人僅依賴買賣協議中的陳述與保證，並且僅有披露函可以符合該等陳述與保證。此外，披露函的內容將「自動」被認定為由賣方向買方作出真實、正確的陳述，並可相應地據此行事。

對收購人而言，盡職查證絕不應當僅僅成為官樣文章，而必須會見涉及的人士，記錄所作出的陳述及會見結果。賣方應當始終對其代表或目標對象代表所發表的陳述保持謹慎，確保這些陳述不會誤導收購人。



黎瀛洲
律師