1158.This section is a new provision which preserves the existing common law rules on unlawful distributions (see subsection (1)) – which continue to be an essential component in determining what amounts to an unlawful distribution.
1159.Subsection (2) makes an exception to this: in particular, it provides that the lawfulness and amount of distributions in kind are established by the statutory rules in sections 845 and 846 and not by any applicable common law rules.
Commentary Part 23: Distributions Section 851: Application of rules of law restricting distributions