What does a promoter owe to the company when making pre-incorporation agreements?

A promoter owes a fiduciary duty to the company, even before it is officially incorporated. This relationship arises because a promoter is in a position where they are dealing with the company’s interests, and thus must act in good faith and with loyalty. The fiduciary duty requires the promoter to disclose any potential conflicts of interest and to avoid profiting at the expense of the company.

This duty is crucial because pre-incorporation agreements often involve significant commitments and resources that can impact the future of the company. If a promoter makes agreements that benefit themselves rather than the company, they could potentially breach this duty, resulting in legal repercussions. While financial transparency, performance guarantees, and contractual obligations may be important concepts in a business context, they do not encapsulate the fundamental ethical and legal requirements imposed on promoters in relation to their duties towards a company they are seeking to establish.