1
PARTNERSHIP REVIEWER
PARTNERSHIP
 it is a CONTRACT whereby two or more persons (1) bind themselves to
CONTRIBUTE money, property, or industry to a COMMON FUND (2) with the
intention of dividing the PROFITS among themselves or in order to EXERCISE a
PROFESSION
CONSEQUENCES OF THE PARTNERSHIP BEING A JURIDICAL ENTITY
1. its juridical personality is SEPARATE and DISTINCT from that of each
partner
2.
the partnership CAN in GENERAL:
A) acquire and possess property of all kinds
B) incur obligations
C) bring civil and criminal actions
D) can be adjudged insolvent even if the individual members be each
financially solvent
3.
unless he is generally sued, a partner has no right to make a separate
appearance in court, if the partnership being sued is already represented
 a STATUS and a FIDUCIARY RELATION subsisting between persons
carrying on a business in common with a view on profit
CHARACTERISTICS OF THE CONTRACT OF PARTNERSHIP
[C, C, L, I, AS, NP]
1. CONSENSUAL
 perfected by mere consent
2. CONTRIBUTION of money, property or industry to a COMMON FUND
3. object must be a LAWFUL one
4. INTENTION of DIVIDING the PROFIT among the PARTNERS
5. “AFFECTIO SOCIETATIS”
 the desire to formulate an ACTIVE UNION, with people among whom
there
exist a mutual CONFIDENCE and TRUSTS
6. NEW PERSONALITY
 the object must be for profit and not merely for the common enjoyment
otherwise only a co-ownership has been formed. HOWEVER, pecuniary
profit need not be the only aim, it is enough that it is the principal purpose
BUSINESS TRUSTS
 when certain persons entrust their property or money to others who will
manage the same for the former
RULES ON CAPACITY TO BECOME A PARTNER
1. a person capacitated to enter into contractual relations may become a
partner
2.
3.
an UNEMANCIPATED MINOR CANNOT become a partner UNLESS his parent
or guardian consents
a MARRIED WOMAN, cannot contribute conjugal funds as her contribution
to the partnership UNLESS she is permitted to do so by her husband OR
UNLESS she is the administrator of the conjugal partnership, in which the
COURT must give its consent authority
4.
a PARTNERSHIP being a juridical person by itself can form another
partnership
5.
a CORPORATION cannot become a partner on grounds of public policy
 a partner shares not only in profits but also in the losses of the firm
RULE:
 the partnership has a PERSONALITY SEPARATE and DISTINCT from that
of each partner
LIMITATIONS ON ALIEN PARTNERSHIP
1) if 60% capital is not owned by Filipinos
 the firm cannot acquire by purchase or otherwise AGRICULTURAL
Philippine lands
2) foreign partnership may “lease” lands provided the period does not exceed 99
years
3) foreign partnership may be “MORTGAGEES” of land
 period of 5 years, renewable for another 5 years
 they cannot purchase it in a foreclosure sale
RULES IN CASE OF ASSOCIATIONS NOT LAWFULLY ORGANIZED AS
PARTNERSHIP
1. it possesses NO LEGAL PERSONALITY
 it cannot sue as such HOWEVER, the partners in their individual capacity
CAN
2. one who enters into a contract with a partnership as such cannot when
sued later on for recovery of the debt, allege the lack of legal personality
on the part of the firm, even if indeed it had no personality
 ESTOPPEL
 whether a partnership has a juridical personality or not depends on its
PERSONAL LAW of the partnership or the law of the place where the partnership
was organized
REQUISITES FOR EXISTENCE OF PARTNERSHIP [I, CF, JI]
1. INTENTION to create a partnership
2. COMMON FUND obtained from contributions
3. JOINT INTERESTS in the PROFITS
WHAT DO NOT ESTABLISH A PARTNERSHIP
1. mere co-ownership or co-possession
 even with profit sharing
2. mere sharing of GROSS returns
 even with joint ownership of the properties involved
RULES TO DETERMINE THE EXISTENCE OF A PARTNERSHIP
1.
2.
persons who are not partners to each other are not partners as to third
persons
EXCEPTION:
 PARTNERSHIP BY ESTOPPEL
CO-OWNERSHIP of a property does not itself establish a partnership, even
though the co-owners share in the profits derived from the incident of joint
ownership
3.
SHARING OF GROSS RETURNS ALONE does not indicate a partnership
whether or not the persons sharing them have a joint or common right or
interest in any property from which the returns are derived
4.
the receipt of the share in the profits is a strong presumptive evidence of
partnership HOWEVER, no such inference will be drawn if such profits were
received in payment
A) as a DEBT by installments or otherwise
B) as WAGES of an employee
C) as RENT to a landlord
D) as an ANNUITY to a widow or representative of a deceased
partner
E) as INTEREST on a LOAN, though the amount of payment vary with
the profits of the business
F) as the CONSIDERATION for the sale of a GOOD WILL of a business
or other property or otherwise
 creditors are not partners, for their only interest in the sharing of
profits is the receipt or payment of their credits
 in a partnership, the partners are supposed to trust and have
confidence in all the partners
PARTNERSHIP BY ESTOPPEL
 IF 2 persons not partners represent themselves as partners to strangers,
a partnership by estoppel results
 WHEN 2 persons, who are partners, in connivance with a friend who is
not a partner inform a stranger that said friend is their partner, a partnership by
estoppel also result to the end that the stranger should not be prejudiced
RULE: LAWFUL OBJECT or PURPOSE
 a partnership must have LAWFUL OBJECT or PURPOSE, and must be
established for the common benefit or interest of the partners
 it must be within the commence of man, possible and not contrary to
law, morals, good customs, public order or public policy
 IF a partnership has SEVERAL PURPOSES, one of which is UNLAWFUL,
the partnership can still validly exist so long as the illegal purpose can be separated
from the legal purposes
 NO need for JUDICIAL DECREE to dissolve an unlawful partnership
 VOID AB INITIO
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 one of the causes for the dissolution of a partnership is “any event which
makes it unlawful for the business of the partnership to be carried on”
RULE:
 when an UNLAWFUL PARTNERSHIP is dissolved by a judicial decree, the PROFITS
shall be CONFISCATED in FAVOR of the STATE
G. R.
 a partnership may be constituted in any form
EXCEPTION: PUBLIC INSTRUMENT
1. IMMOVABLE PROPERTY is contributed
2. REAL RIGHTS are contributed
*
need for INVENTORY of IMMOVABLES
** for EFFECTIVITY of the partnership contract insofar as innocent
third persons are concerned the same must be REGISTERED if REAL
PROPERTIES are INVOLVED
 a partnership contract is NOT CONVERED by the STATUTE of FRAUDS
 an AGREEMENT TO FORM a partnership does not itself create a
partnership
 when there are conditions to be fulfilled or when a certain period is to
lapse, the partnership is not created till after the fulfillment of the conditions or the
arrival of the term and this is true even if one of the parties has already advanced
his agreed share of the capital
RULE: if CAPITAL is P3,000 or more
REQUIRED:
1. PUBLIC INSTRUMENT
2. RECORDED – S.E.C.
*  FAILURE TO COMPLY – shall not effect the liability of the partnership and its
members to third persons
**  IF REAL PROPERTIES have been contributed, REGARDLESS of the VALUE, a
public instrument is needed for the attainment of legal personality
REQUIREMENTS WHERE IMMOVABLE / REAL PROPERTY IS CONTRIBUTED
1. PUBLIC INSTRUMENT
2. INVENTORY – signed and attached to the P.I.
*  applies regardless of the value of the real property
*  applies even if only real rights over the real property are
contributed
*  applies if aside from real property, cash or personal property is
contributed
 TRANSFER of land to the partnership must be duly “recorded” in the ROD to make
the transfer effective insofar as third persons are concerned
RULE:
 any immovable property or an interest therein maybe acquired in the partnership
name
 title so acquired can be conveyed only in the partnership name
IF the partnership has ALIENS, it CANNOT OWN LANDS, whether public or private
or whether agricultural or commercial EXCEPT through HEREDITARY SUCCESSION
LIMITATIONS ON ACQUISITION
1. AGRICULTURAL LANDS – 1024 HECTARES
2. lease of public lands (GRAZING) – 2000 HAS.
RULES
1.
2.
3.
4.
5.
IF
A) articles are kept secret among the members
B) any one of the members may contract in his “own” name
with third persons
NOT a partnership – NOT a LEGAL PERSON
it may be sued by third person under the common name it uses
it cannot sue as such and cannot be ordinarily be a party to a civil action
insofar as innocent third parties are concerned
 the parities can be considered as members of a partnership
as between themselves or insofar as third persons are prejudiced
 only the rules of co-ownership must apply
EFFECT OF CERTAIN TRANSACTIONS
1. contracts entered into by a “partner” in his own name may be sued upon
still by him in his individual capacity, not withstanding the absence of a
partnership
2. when two or more individuals, having a common interests in a business
bring a court action, it should be presumed that they prosecute the same
in their individual capacity as co-owners and not in behalf of a partnership
which does not exist in legal contemplation
CLASSIFICATION OF PARTNERSHIPS
A) ACCORDING TO MANNER OF CREATION
1. ORALLY constituted
2. constituted in a PRIVATE INSTRUMENT
3. constituted in a PUBLIC INSTRUMENT
4. REGISTERED – S.E.C.
B) ACCORDING TO OBJECT
1. UNIVERSAL
2. PARTICULAR
C) ACCORDING TO LIABILITY
1. LIMITED PARTNERSHIP
2. GENERAL PARTNERSHIP
D) ACCORDING TO LEGALITY
1. LAWFUL OR LEGAL
2. UNLAWFUL OR ILLEGAL
E) ACCORDING TO DURATION
1. for a SPECIFIC PEIOD or FIXED PERIOD
2. PARTNERSHIP AT WILL
F) ACCORDING TO REPRESENTATION TO OTHERS
1. ORDINARY PARTNERSHIP
2. PARTNERSHIP BY ETOPPEL
G) AS TO LEGALITY OF EXISTENCE
1. DE JURE PARTNERSHIP
2. DE FACTO PARTNERSHIP
H) AS TO PUBLICITY
1. SECRET PARTNERSHIP
2. NOTORIOUS / OPEN PARTNERSHIP
I) AS TO PURPSE
1. COMMERCIAL / TRADING
2. PROFESSIONAL / NON-TRADING
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GENERAL PARTNERSHIP
 one where all the partners are general partners
 they are LIABLE even with respect to their individual properties, after the assets of
the partnership has been exhausted
LIMITED PATNERSHIP
 one where at least one partner is a general partner and the others are limited
partners
 one whose liability is limited only up to the extent of his contribution
 a partnership where all the partners are limited partners cannot exist as a limited
partnership
 REFUSED REGISTRATION
 IF it continuous as such, it will be considered as a general partnership and all
the
partners will be general partners
KINDS OF UNIVERSAL PARTNERSHIP
1. PARTNERSHIP OF ALL PRESENT PROPERTY
2. PARTNERSHIP OF ALL PROFITS
*UNIVERSAL PARTNERSHIP OF ALL PRESENT PROPERTY
 CONTRIBUTION of
1. ALL the properties actually belonging to the partners
2. the PROFITS acquired with said property
 BECOMES COMMON PROPERTY
 EXCEPT all FUTURE PROPERTY
 FRUITS of FUTURE PROPERTY – INCLUDED IF STIPULATED UPON
*UNIVERSAL PARTNERSHIP OF PROFITS
 comprises all that the partners may acquire by the INDUSTRY or WORK of the
partners become common property regardless of within said profits were obtained
through the usufruct contributed
 EXCEPT PRIZES and GIFTS
RULE:
 articles of universal partnership, entered without specification of its nature, only
constitute a universal partnership of PROFITS
RULE:
 persons who are prohibited from giving each other any donation or advantage
cannot enter into universal partnership
WHO:
1. HUSBAND and WIFE
2. those guilty of ADULTERY or CONCUBINAGE
3. those guilty of the same criminal offense if the partnership was entered
into in consideration of the same
 while spouses cannot enter into a universal partnership, they can enter into a
particular partnership or be members thereof
 a universal partnership is virtually a donation to each other of the partners
properties or at least their usufruct
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3.
the partner must exercise due diligence in preserving the property to be
contributed before he actually contributes the same
4.
a partner who promises to contribute to the partnership becomes a
promissory debtor of the partnership
RULES ON THE DUTY TO DELIVER THE FRUITS
1. IF property has been promised, the fruits thereof should also be given
2.
the fruits referred to are those arising from the time they should have been
delivered, without a need of any demand
3.
IF the partner is in BAD FAITH, he is liable not only for the fruits actually
produced, BUT also for those that could have been produced
IF MONEY HAS BEEN PROMISED, INTEREST and DAMAGES from the time
he should have complied with his obligation should be given
4.
PARTICULAR PARTNERSHIP
 a particular partnership has for its OBJECT:
1. DETERNMINATE THINGS – their use or fruits
2. SPECIFIC UNDERTAKING
3. EXERCISE of a PROFESSION or VOCATION
OBLIGATIONS OF THE PARTNERS
RULE:
 a PARTNERSHIP BEGINS from the moment of the EXECUTION of the CONTRACT
*  even if contributions have not yet been made the firm already exists, for
partnership is a consensual contract
DURATION OF PARTNERSHIP
 UNLIMITED
*  MAY BE AGREED UPON
1. EXPRESSLY – definite period
2. IMPLIEDLY – upon achievement of its purpose
PARTNERSHIP AT WILL
 a partnership wherein its continued existence really depends upon the will of the
partners or even on the will of any of them
2 KINDS:
1. when there is no term, express or implied
2. when it is continued by the habitual managers although the period has
ended or the purpose has been accomplished
3 IMPORTANT DUTIES OF EVERY PARTNER [C, D-F, W]
1. duty to CONTRIBUTE what had been promised
2. duty to DELIVER the FRUITS of what should have been delivered
3. duty to WARRANT
RIULES ON THE DUTY TO CONTRIBUTE
1. the contribution must be made at the time the partnership is entered into
UNLESS a different period is stipulated
2.
no demand is needed to put the partner in default
5.
NO DEMAND is needed to put the partner in default
6.
it is DELIVERY, actual or constructive that TRANSFERS OWNERSHIP
RULES ON THE DUTY TO WARRANT
1. the warranty in case of eviction refers to specific and determinate things
already contributed
2.
there is EVICTION whenever by a final judgment based on a right prior to
the sale or an act imputable to the partner, the partnership is deprived of
the whole or a part of the thing purchased
RULE WHEN CONTRIBUTION CONSISTS OF GOODS
 APPRAISAL of VALUE is needed to determine how much was contributed
HOW APPRAISAL MADE
1. as PRESCRIBED in the CONTRACT
2. in default, by EXPERTS chosen by the partners, and at CURRENT PRICES
* necessity of the INVENTORY – APPRAISAL
RULE on RISK of LOSS
 after goods have been contributed, the partnership bears the risk of
subsequent changes in the value
RULE:
 a partner who has undertaken to contribute a sum of money and fails to do so
becomes a debtor for the interest and damages from the time he should have
complied with his obligation
CAPITALIST PARTNER
 one who FURNISHES CAPITAL
* NOT EXEMPTED from LOSSES
* he can engage in other business PROVIDED there is no competition
between the partnership and his business
* share in the profits according to agreements
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INDUSTRIAL PARTNER
 one who FURNISHES INDUSTRY or LABOR
* he is EXEMPTED from LOSSES as between the partner BUT liable to
strangers without prejudice to reimbursement from the capitalist partner
* he CANNOT engage in any other BUSINESS WITHOUT the express
CONSENT of the other partners, OTHERWISE
1. he can be EXCLUDED from the firm
- plus damages
OR
2. the BENEFITS he obtains from the other businesses CAN BE AVAILED of by
the other partners
plus damages
 whether or not there is COMPETITION
* in computing always look for ----- NET PROFITS
----- NET LOSSES
CAPITALIST – INDUSTRIALIST PARTNER
 one who contributes BOTH CAPITAL and INDUSTRY
GENERAL PARTNER
 one who is liable “beyond” the extent of his contribution
LIMITED PARTNER
 one who is liable “only” to the extent of his contribution
*** an industrial partner can only be a general partner, never a limited partner
MANAGING PARTNER
 one who manages actively the firms affairs
SILENT PARTNER
 one who does not participate in the management, though he shares in the
PROFITS or LOSSES
LIQUIDATING PARTNER
 one who winds up or liquidates the affairs of the firm after it has been dissolved
OSTENSIBLE PARTNER
 one whose connection with the firm is public and open
SECRET PARTNER
 one whose connection with the firm is concealed or kept secret
DORMANT PARTNER
 one who is both a secret (hidden) and silent (not managing) partner
NOMINAL PARTNER
 one who is not really a partner BUT who may become liable as such insofar as
third persons are concerned
RULE:
 partners shall CONTRIBUTE EQUAL SHARES to the capital of the partnership
* it is permissible to contribute UNEQUAL SHARES IF there is a stipulation to
this effect
* in the absence of proof, the shares are presumed to be equal
CONDITIONS before a capitalist partner is obliged to sell his shares /
interest to the other partners [IL, RC, NA]
1.
if there is IMMINENT LOSS of the BUSINESS of the partnership
2.
he REFUSES to CONTRIBUTE an ADDITIONAL SHARE to the CAPITAL
3.
there is no agreement to the contrary
* INDUSTRIAL PARTNER IS EXEMPTED
*RULE if MANAGING PARTNER COLLECTS A CREDIT
REQUISITES:
1. existence of at least 2 debts ---- PARTNERSHIP
---- PARTNER
2. both sums are demandable
3. the collecting partner is the managing partner
* the sum thus collected shall be applied to the two credits in
proportion to their amounts
RULE:
* where a partner receives his share in the partnership credit
CONDITIONS:
1.
a partner has received his share in the partnership credit – in whole or in
part
2.
the other partners have not collected their part of the credit
3.
the debtor subsequently becomes INSOLVENT
RULE: - the partner shall be obliged to bring to the partnership
capital what he received even though he may have given receipt for
his share only
* DOES NOT APPLY when debt was collected after dissolution of the partnership
RULE:
* every partner is responsible to the partnership for damages suffered by it
through his fault
* he cannot compensate them with the profits and benefits, which he may
have earned for the partnership by his industry
* the courts may equitably lessen his responsibility
“RES PERIT DOMINO”
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*RULES ON WHO BEARS THE RISK OF LOSS
1.
if SPECIFIC and DETERMINATE THINGS NOT FUNGIBLE whose USUFRUCT
is enjoyed by a firm
 the PARTNER who OWNS it bears the loss for ownership was never
transferred to the firm
2.
FUNGIBLE or DETERIORABLE
 FIRM bears the loss for it is evident ownership was transferred
3.
THINGS CONTRIBUTED to be SOLD
FIRM bears the loss for evidently the firm was intended to be the owner
4.
CONTRIBUTED under APPRAISAL
 FIRM bears the loss because this has the effect of an implied sale
RULE on RESPONSIBILITY of the FIRM
1.
to REFUND amounts disbursed on behalf of the firm plus legal interest from
the time expenses where made
2.
to ANSWER to each partner for OBLIGATIONS he may have entered into in
good faith in the interest of the partnership, as well as the risks in
consequence of its management
* REFUND must be made even in case of failure of the enterprise entered into,
provided the partner is not at fault
* AMOUNT DISBURSED – does not refer to the ORIGINAL CAPITAL
*HOW PROFITS ARE DISTRIBUTED
1. according to AGREEMENT
2. IF NONE, according to amount of CONTRIBUTION
*HOW
1.
2.
3.
LOSSES are DISTRIBUTED
according to AGREEMENT as to losses
IF NONE, according to agreement as to PROFITS
IF NONE, according to amount of CONTRIBUTION
* an INDUSTRIAL PARTNER shall receive a JUST and EQUITABLE share in the
profits
*RULE on INDUSTRIAL PARTNERS’ LIABILITIES
- may be held liable by third persons BUT he may recover what he has paid from
the other capitalist partners
*RULE on DESIGNATION by THIRD PERSON of SHARES in PROFITS and
LOSSES
* third person is NOT a PARTNER -- appointed to only distribute shares
* the designation of shares by third persons may be IMPUGNED, IF it is
MANIFESTLY INEQUITABLE
* the designation of shares by third persons CANNOT be IMPUGNED EVEN IF
MANIFESTLY INEQUITABLE IF:
1. the aggrieved partner has already BEGUN to EXECUTE the decision
2. the aggrieved partner has not IMPUGNED the distribution within 3 months
he had knowledge
*RULE IF APPOINTMENT OTHER THAN in the ARTICLES of PARTNERSHIP
1. power to act may be REVOKED at ANY TIME with or without just cause
 REMOVAL should be done by the controlling interest
2. EXTENT of POWER
 as long as he remains manager, he can perform all acts of administration
BUT – if others oppose and he persists, he can be removed
*RULE WHEN there are 2 or MORE MANAGERS
CONDITIONS:
1. 2 or more partners are managers
2. there is no specification of respective duties
3. there is no stipulation requiring UNANIMITY
SPECIFIC RULES:
1. each may separately execute all acts of administration
 UNLIMITED POWER to ADMINISTER
2.
IF any of the managers OPPOSE
 MAJORITY RULE
 IN CASE OF A TIE
- persons owning controlling interest prevail provided they are also
managers
* right to oppose is not given to NON-MANAGERS
* OPPOSITION should be done BEFORE the acts produce legal effects insofar as
third persons are concerned
RULE WHEN UNANIMITY is REQUIRED
1. the CONCURRENCE of all shall be necessary for the validity of the acts
2.
the ABSENCE or DISABILITY of ANYONE of them CANNOT BE ALLEGED
UNLESS there is imminent danger of grave or irreparable injury to the
partnership
RULE ON DUTY of THIRD PERSONS
 third persons are not required to inquire as to whether or not a partner with whom
he transacts has the consent of all the managers
*RULES to be observed when the manner of management has not been
agreed upon:
1. all the partners are considered AGENTS
 whatever any one of them may do alone shall not bind the partnership
2.
IF the acts of one are opposed by the rest, the majority shall prevail
3.
when a partner acts in his OWN NAME, he does not bind the partnership
4.
authority to bind the firm does not apply if somebody else has been given
authority to manage in the articles of organization or through some other
means
5.
ALTERATIONS REQUIRE UNANIMITY
- IMMOVABLE partnership property
- BUT if the refusal to consent by the others is prejudicial to the interest of
the partnership
- COURTS INTERVENTION may be sought
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PROPERTY RIGHTS OF PARTNERS [P, I, M]
1. rights in specific PARTNERSHIP PROPERTIES
2. INTERESTS in the PARTNERSHIP
3. right to PARTICIPATE in the MANAGEMENT
RULE:
* a partner is CO-OWNER with his partners of SPECIFIC PARTNERSHIP PROPERTY
* RIGHTS of a PARTNER in SPECIFIC PARTNERSHIP PROPERTY
1.
he has equal rights with his partners to POSSESS the property BUT only for
PARTNERSHIP PURPOSES
 he may possess such property for other purposes PROVIDED the other
partners expressly or impliedly gives their CONSENT
2.
he CANNOT ASSIGN his right to the property
partners assign their rights in the same property
3.
his right to the property is NOT SUBJECT to ATTACHMENT or EXECUTION,
EXCEPT on a claim against partnership
4.
his right to the property is NOT SUBJECT to LEGAL SUPPORT
RULES on ASSOCIATE of PARTNER
1. every partner may associate another person with him in his share
2.
for a partner to have an associate in his share
 consent of all the other partners is NOT REQUIRED
3.
for the associate to become a partner
 ALL MUST CONSENT
RULES on PARTNERSHIP BOOKS
1. kept at the principal place of business of the partnership
2.
at any reasonable hour, every partner shall have access to and may
inspect and copy any of them
DUTY of PARTNERS TO GIVE INFORMATION
 good faith not only requires that a partner should not make any FALSE
CONCEALMENT, BUT he should abstain from all concealment
DUTY to ACCOUNT [B, P, U-P]
 every partner must account to the partnership
1. any benefit acquired
2. any profits received
3. any use of partnership property
RIGHT TO DEMAND a FORMAL ACCOUNT
 any partner shall have the right to a formal account as to partnership affairs
1. if wrongfully excluded from partnership BUSINESS
2. if wrongfully excluded from partnership PROPERTY by his co-partners
3. if the right exists under the terms of agreement
4. if the other partner receives other benefits, profits or uses partnership
property
5. whenever other circumstances render it just and reasonable
* the right to demand an accounting exists as long as the partnership exists
* prescription begins to run only upon the dissolution of the partnership when the
final accounting is done
EXCEPT if all the other
* if there is PARTNERSHIP DEBT, the specific property can be attached
RULE:
* a PARTNERS INTEREST in the partnership is his SHARE of the PROFITS and
SURPLUS
IT CAN BE: [A, A, LS]
1. ASSIGNED
2. ATTACHED
3. be subject to LEGAL SUPPORT
*EFFECTS of CONVEYANCE by PARTNER of his INTEREST
PARTNERSHIP
1. IF he conveys his WHOLE INTEREST
A) partnership may still remain
B) partnership may be dissolved
* mere conveyance does not dissolve the partnership
in
the
2.
the ASSIGNEE does not necessarily become a partner
 the ASSIGNOR is still the partner, with a right to demand accounting and
settlement
3.
the ASSIGNEE CANNOT interfere in the MANAGEMENT or ADMINISTRATION
of the firm
 the ASSIGNEE CANNOT also DEMAND [I, A, I]
A) INFORMATION
B) ACCOUNTING
C) INSPECTION of partnership books
*** while a partners INTEREST in the firm may be CHARGED or LEVIED upon, his
INTEREST in a specific firm PROPERTY CANNOT be attached.
RIGHTS of the ASSIGNEE
1. to get whatever profits the assignor-partner would have obtained
2.
to avail himself of the usual remedies in case of fraud in the management
3.
to ask for ANNULMENT of the contract of assignment IF:
A) he was induced to enter into it through any of the vices of consent
OR
B) he himself was incapacitated to give consent
4.
to demand an accounting BUT only if the partnership is dissolved
----- INJURY
----- MISAPPROPRIATION
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** while an INDUSTRIAL PARTNER is exempted by law from LOSSES as between
the partners, he is NOT EXEMPTED from liability insofar as third persons are
concerned
 he may recover what he has paid from the CAPITALIST partners
* under the law the liability of the partners is subsidiary and joint NOT principal
and solidary
*RULE on LIABILITY of a PARTNER who has WITHDRAWN
1. a partner who withdraws is not liable for liabilities contracted after he has
withdrawn
2.
if his interest has not yet been paid him
 his right to the same is that of a mere creditor
PREFERENTIAL RIGHTS of PARTNERSHIP CREDITORS
* partnership creditors are entitled to PRIORITY over partnership assets, including
the partners interest in the profits
** a stipulation exempting liability to third persons is VOID
** SEPARATE or INDIVIDUAL creditors have PREFERENCE in separate or individual
properties
* any partner may enter into a separate obligation to perform a partnership
contract
* when the CHARGING ORDER is applied for and granted, the court may appoint a
receiver of the partners share in the profits
 the receiver appointed is entitled to any relief necessary to conserve the
partnership assets for partnership purposes
* interest charged may be redeemed at any time before foreclosure
RULE:
* every partner is an “agent” of the partnership for the purpose of its business
* AFTER FORECLOSURE the interest may still be redeemed by (without causing
dissolution)
1. with separate property, by any one or more of the partners
OR
2. with partnership property, by any one or more partners with the consent of all
the partners whose interests are not so charged or sold
* consent of the delinquent partner not needed
RULE:
 every partnership shall operate under a FIRM NAME
* the firm name may or may not include the name of one or more of the
partners
** STRANGERS who include their names in the firm are liable as partners because
of ESTOPPEL, BUT do NOT have the RIGHTS of partners
** IF a LIMITED PARTNER includes his name in the firm name, he has obligations
BUT not the rights of a general partner
RULE on LIABILITY for CONTRACTUAL OBLIGATIONS
* all partners, including industrial ones, shall be liable pro-rata with all their
property and after all the partnership assets have been exhausted
* NOT APPLICABLE for TORTS or CRIMES ----- LOSS
G.R.- the act of every partner for apparently carrying on in the USUAL WAY the
business of the partnership of which he is member binds the partnership
EXCEPT:
1. if he has NO AUTHORITY
and
2. the person with whom he was dealing with HAS KNOWLEDGE of the fact that he
has no such authority
RULE:
 an act of a partner which is not apparently for the carrying on of business of the
partnership in the usual way does not bind the partnership UNLESS authorized by
the other partners
* a partnership is a CONTARCT of MUTUAL AGENCY, each partner acting as a
principal on his own behalf and as an agent for his co-partners or the firm
REQUISITES on WHEN can a partner BIND the partnership
1. expressly or impliedly AUTHORIZED
2. when he acts in BEHALF AND IN THE NAME of the partnership
INSTANCES of IMPLIED AUTHORIZATION
1. when the other partners DO NOT OBJECT, although they have knowledge
of the act
2. when the act is for “apparently carrying on in the usual way the business
of the partnership
* this is binding on the firm even if the partner was not really authorized
PROVIDED that the third party is in GOOD FAITH
RULE on UNUSUAL ACTS
 one or more but less than all the partners HAVE NO AUTHORITY TO:
[AP, DG, AI, CJ, EC, SA, RC]
1. ASSIGN the PARTNERS PROPERTY
2. DISPOSE of GOODWILL
3. do any other act which would make it impossible to carry on the ordinary
business of the partnership
4. CONFESS a judgment
5. ENTER into a COMPROMISE
6. SUBMIT to ARBITRATION
7. RENOUNCE to CLAIM
9
*RULE on ADMISSION or REPRESENTATION MADE by a PARTNER
 an admission by a partner is an admission against the partnersip,under the
following conditions:
1. the admissions must concern partnership affairs
2. must be within the scope of his authority
RESTRICTIONS ON THE RULE:
1. admissions made BEFORE DISSOLUTION are binding only when the partner
has authority to act on the particular matter
2.
admissions made AFTER DISSOLUTION are binding only if the admissions
were necessary to WIND UP the business
3.
an admission made by a former partner made after he has RETIRED from
the partnership is not evidence against the firm
*RULES on CONVEYANCE of REAL PROPERTY
1.
where title to real property is in the partnership name
 any partner may convey title to such property by a conveyance executed
in the partnership name
* PARTNERSHIP MAY RECOVER SUCH PROPERTY
EXCEPT:
1. if the firm is engaged in the buying and selling of land (USUAL
BUSINESS)
2. if property was conveyed to a HOLDER for VALUE and who had NO
KNOWLEDGE of the partners LACK of AUTHORITY
2. where title is in the name of the partnership and partner sold in his OWN
NAME
 IF DONE IN USUAL BUSINESS
 buyer does not become owner BUT ACQUIRES EQUITABLE INTEREST
 IF NOT DONE IN USUAL BUSINESS
 buyer does not become owner and is not even entitled to equitable
interest
EFFECT of NOTICE to a PARTNER
 notice to a partner is notice to the partnership
*notice to a partner, given while already a partner is a notice to the partnership
PROVIDED it relates to partnership affairs
EFFECT of KNOWLEDGE ALTHOUGH NO NOTICE WAS GIVEN:
* knowledge of the partner is also knowledge of the firm PROVIDED THAT:
1.
the knowledge was acquired by a partner who is acting in the particular
matter involved;and
2.
the partner having knowledge, had reason to believe that the fact related
to a matter which had some possibility of being the subject of the
partnership business AND he was so situated that he could communicate it
to the partner acting on that particular matter
* SERVICE of PLEADINGS on the partner in a law firm is also service on the whole
firm and the other partners
3. where title is in the name of one or more BUT not all the partners
 partners in whose name the title is named MAY CONVEY BUT the
PARTNERSHIP may RECOVER such property IF done not in its USUAL
BUSINESS EXCEPT if he had transferred it to a Holder for value
4. when property “held in trust” by partner
 a sale only conveys EQUITABLE INTEREST
5.
when title is in the name of all partners
 conveyance executed by all partners possess all rights of such property
EQUITABLE INTEREST
-BENEFICIAL INTEREST, BUT NOT NAKED OWNERSHIP
LOSS OR INJURY
RULE on WRONGFUL ACT or OMISSION of a PARTNER (SOLIDARY
LIABILITY)
* the partnership is solidarily liable with the partner if the wrongful act or
omission
1. the partner is acting in the ordinary course of business of the partnership
OR
2. with authority of his co-partners
* innocent partners have right to recover from the guilty partner
* When the firm and other partners not liable:
1. if the wrongful act or omission was NOT DONE
A) within scope of partnership business
B)
10
with authority of the other co-partners
RULE:
* he shall be liable for all the obligations of the partnership BUT his liability will
extend only to his share in the partnership property
2.
if the act or omission is NOT WRONGFUL
3.
if the act or omission, although wrongful did not make the partner concern
liable
- DAMNUN ABSQUE INSURIA
4.
if the wrongful act or omission was committed after the firm had been
dissolved and the same was not in connection with the process of winding
up.
LIABILITY of PARTNERSHIP for MISAPPROPRIATION
LIABILITY)
1. RECEIVING PARTY MISAPPROPRIATES
2. ANY PARTNER MISAPPPROPRIATES
money or property in custody of partnership
–
(SOLIDARY
PARTNER BY ESTOPPEL
 a person who represents himself or consents to another / others representing
him to anyone as a partner either in an existing partnership or in one that is
fictitious or apparent
PARTNERSHIP BY ESTOPPEL
 when all the members of the existing partnership consent to such representation
of a partner by estoppel
RULES AND SITUATIONS:
1. if a third person is misled and acts because of such misrepresentation
 the deceiver is a partner by estoppel
2.
3.
4.
if the partnership consented to such misrepresentation
 partnership liability results
if the firm had not consented
 no partnership liability results BUT the deceiver is considered still as a
“partner by estoppel” with all the obligations but not the rights of a partner
when a person represents himself as a partner of a NON-EXISTENT
partnership
 NO partnership liability results BUT the deceiver and all persons who
may have aided him in the misrepresentation are still liable
 liability would be JOINT or PRO-RATA
* when although there is misrepresentation, if the third party is not deceived, the
doctrine of estoppel does not apply
BURDEN of PROOF
 the creditor or whoever alleges the existence of a partner or partnership by
estoppel has the burden of proving the existence of the MISREPRESENTATION AND
INNOCENT RELIANCE on it
ENTRY OF A NEW PARTNER into an EXISTING PARTNERSHIP
* his own individual property shall be excluded
* same liability of a limited partner
PREFERENCE of PARTNERSHIP CREDITORS
RULE:
* the creditors of the partnership shall be preferred to those of such partner as
regards the partnership property
without prejudice to this right
 the private creditors of each partner may ask the attachment and public sale of
the share of the latter in the partnership assets
**IF a partner sells his share to a third party, BUT the firm itself still remains
SOLVENT, partnership creditors CANNOT assail the validity of the sale by alleging
that it is made in fraud of them, since they have not really been prejudiced
DISSOLUTION AND WINDING UP
 the change in the relation of the partners caused by any partner causing to be
associated in the carrying on of the business
 it is the point of time the partners cease to carry on the business together
WINDING UP
 the process settling business affairs after dissolution
TERMINATION
 the point in time after all the partnership affairs have been wound up
RULE ON DISSOLUTION
* on dissolution the partnership is not terminated BUT continues until the winding
up of partnership affairs is completed
*EFFECT on OBLIGATIONS
1. just because a partnership is dissolved this does not necessarily mean that
a partner can evade previous obligations entered into by the partnership
2.
dissolution saves the former partners from new obligations to which they
have not expressly or impliedly consented UNLESS the same be essential
for winding up
*CAUSES OF DISSOLUTION
1. without VIOLATION of the AGREEMENT between the partners
A) TERMINATION of the DEFINITE TERM or PARTICULAR
UNDERTAKING
B) EXPRESS WILL or ANY PARTY in GOOD FAITH (PARTNERSHIP by
WILL)
C) EXPRESS WILL of ALL of the PARTNERS except those who have
(interests) ASSIGNED or whose interests have been (separate
debts) CHARGED
2.
3.
4.
5.
6.
7.
8.
D) EXPULSION in good faith of a member
in CONTRAVENTION of the agreement between the partners
 by the EXPRESS WILL of ANY PARTNER at any time
UNLAWFULNESS of the BUSINESS
LOSS – thing promised
A) SPECIFIC THING – PERISHES before delivery
B) USUFRUCT is lost EXCEPT if ownership had been transferred to the
partnership
DEATH of ANY partner
INSOLVENCY of any partner or of the partnership
CIVIL INTERDICTION of any partner
DECREE of COURT
*** if the cause is not justified or no cause was given, the withdrawing partner is
liable for DAMAGES BUT in no case can he be compelled to remain in the firm
* the insolvency need not be judicially declared, it is enough that the assets be
less than the liabilities
DISSOLUTION by JUDICIAL DECREE WHEN ALOWED:
(I, UM, I-PP, C, PB, BL, OC)
1. partner declared “insane” in any judicial proceeding or is shown to be of
UNSOUND MIND
2. partner becomes INCAPABLE of performing his part of the partnership
contract
3. partner has been guilty of such CONDUCT as tends to affect prejudicially
the business
4. partners PERSISTENT BREACH of agreement
5. the business of the partnership can only be denied on at a loss
6. other circumstances which render dissolution equitable
IN CASE OF PURCHASER of PARTNERS INTEREST
1. after the termination of the specified term or particular undertaking
2. AT ANY TIME, if the partnership was a “partnership at will” when the
interest was assigned or when the charging ordered was issued
* proof as to the existence of the firm must first be given
* even if a partner has not yet been previously declared insane by the court,
dissolution may be asked, as long as the insanity is duly proved in court
* in a suit for dissolution, the court may appoint a RECEIVER at its discretion
EFFECTS OF DISSOLUTION
RULE:
* when the firm is dissolved, a partner can no longer bind the partnership
* a dissolved partnership still has the personality for the winding up of its affairs
 the firm is still allowed to collect previously acquired credits
 the firm is still bound to pay of its debts
DISSOLUTION CAUSED by A-I-D
RULE: (STILL BOUND) – as to each partners
11
G.R. where the dissolution is caused by the ACT, INSOLVENCY or DEATH of a
partner, each partner is liable to his co-partners for his share of any liability created
by any partner acting for the partnership
EXCEPTION: - individual liabilities
1. if dissolution by ACT
 the partner acting for the partnership HAD KNOWLEDGE of the dissolution
OR
2. if dissolution by DEATH or INSOLVENCY
 the partner acting for the partnership HAD “knowledge or notice” of the
death or insolvency
* only the partner acting assumes liability
*AFTER DISSOLUTION, a partner can still “bind” the PARTNERSHIP
(WU, UT, TB)
1. By any ACT appropriate for WINDING UP partnership affairs
2.
By COMPLETING transactions UNFINISHED at dissolution
3.
By any TRANSACTION which could bind the partnership IF dissolution had
not taken place PROVIDED the other party is:
A) PREVIOUS CREDITOR and had NO KNOWLEDGE or NOTICE of the
dissolution
OR
B) NOT a PREVIOUS CREDITOR, had NO KNOWLEDGE or NOTICE and
dissolution was NOT PUBLISHED
* if there was publication of the dissolution it is presumed he already knows,
regardless of actual knowledge on non knowledge
WHEN is the PARTNERSHIP NOT BOUND
1. new business with third parties who are in bad faith
2. firm dissolved because UNLAWFUL except for acts of winding up
3. partner who acted became INSOLVENT
4. partner not authorized to wind up EXCEPT if customer in good faith
* if after dissolution, if a stranger will represent himself as a partner although he
is not one he will be a partner by estoppel
RULE:
* the dissolution of the partnership does not itself discharge the “existing liability”
of any partner
 NEED for an AGREEMENT BETWEEN
1. partner concerned
2. other partners
3. creditors
RULE:
* the INDIVIDUAL PROPERTY of a DECEASED PARTNER shall be liable for all
obligations of the partnership incurred while he was a partner BUT subject to prior
payments of his separate debts
* IF there be a NOVATION of the OLD PARTNERSHIP DEBTS and such novation is
done after one of the partners has “retired” and without the consent of such partner
 said partner cannot be held liable by creditors who made the novation with
knowledge of the firms dissolution
EXTRAJUDUCIAL AND JUDICIAL WINDING-UP
EXTRAJUDICIAL:
1. by the partners who have not wrongfully dissolved the partnership
2. by the legal representative of the last surviving partners
JUDICIAL:
 under the control and direction of the court, upon proper cause that is shown to
the court
* profits that will actually enter the firm after dissolution as a consequence of
transactions already made before dissolution are included because they are
considered as profits existing at the time of dissolution
* any other income earned after the time, like interest or dividends on stock
owned by the partners or partnership at the time of dissolution should not be
distributed as profits BUT as merely additional income to the capital
BETTER RIGHTS of INNOCENT PARTNERS
 innocent partners have better rights than guilty partners and that the guilty
partners are required to indemnify for the damages caused
* RIGHT of INOCENT PARTNERS TO CONTINUE the BUSINESS
 in essence this is a new partnership
 can use the same firm name
 can ask new members to join
BUT shall: for protection of guilty partners
1. give a BOND approved by the court
2. to PAY guilty partners his interests at the time of dissolution MINUS
DAMAGES
* a guilty partner who is EXCLUDED will be indemnified against all present or
future partnership liabilities
RIGHT TO GET CASH
 in case on non-continuance of the business, the interest of the partner should if
he desires be given in cash
 assets may be sold
 a guilty partner, in ascertaining the value of his interest is not entitled to a
proportional share of the value of GOOD WIL
RIGHTS OF INNOCENT PARTNERS IN CASE of RESCISSION based on FRAUD
AND MISREPRESENTATION
1. Right to LIEN or RETENTION  SURPLUS
 CAPITAL
 ADVANCES
2. Right of SUBROGATION – as creditor
3. Right of INDEMNIFICATION
*ORDER of PAYMENT in WINDING-UP of PARTNERSHIP LIABILITIES
GENERAL PARTNERSHIP: [C, R, C, P]
1. those owing to “creditors” other than partners
2. those owing to “partners” other than for capital or profits
REIMBURSEMENTS
3. those owing to partners in respect to CAPITAL
4. those owing to partners in respect to PROFITS
12
–
* IF the partnership assets are insufficient, the other partners must contribute
more money or property
PREFERENCE with RESPECT to the ASSETS
1. regarding partnership property
 partnership creditors have preference
2. regarding individual properties of partners
 individual creditors are preferred
RULE if PARTNER is INSOLVENT
- How INDIVIDUAL PROPERTY is DISTRIBUTED
ORDER
1.
2.
3.
OF PREFERENCE:
INDIVIDUAL or SEPARATE CREDITORS
PARTNERSHIP CREDITORS
those owing to other partners by way of contribution
*When creditors of the dissolved partnership are also creditors of the
partnership continuing business:
1. new partner is admitted without liquidation
2. a partner retires and assigns his rights IF the business is continued without
liquidation of the partnership affairs
3. all but one partner retire without liquidation
4. when all partner assign their right to a person who will assume their debt
5. after wrongful dissolution, remaining partners continue the business
without liquidation
6. when partner expelled and remaining partners continue the business
without liquidation
* liability of third person becoming a partner in the partnership continuing the
business to the creditors of the dissolved partnership shall be satisfied out of the
partnership property ONLY
G.R. – when a partner retires, he is entitled what is due him after liquidation BUT no
liquidation is needed if there is already a settlement at the date of dissolution
JURISPRUDENCE
13
BASTIDA vs. MENZI
* articles of association by which 2 or more persons obligate themselves to place
in a common fund any property, industry, or any of these things, in order to obtain
profit, shall be COMMERCIAL
BORJA vs. ADDISON
* a surviving husband may form a partnership with the heirs of the deceased wife
for the management and control of the community property
 BUT in the absence of the formalities prescribed by the Civil Code, knowledge of
the existence of the new partnership or community of property must at least be
brought home to third persons dealing with the surviving husband in regard to the
community real property in order to bind them by the community agreement
KIEL vs. SABERT
* the declarations of one partner, not made in the presence of his co-partner, are
not competent to prove the existence of a partnership between them as against
such partner
* the existence of a partnership cannot be established by general reputation,
rumor or hearsay
EVENGELISTA vs. C.I.R.
* By the contract of partnership 2 or more persons bind themselves to contribute
money, property, or industry to a common fund, with the intention of dividing the
profits among themselves
ESSENTIAL ELEMENTS of a PARTNERSHIP
1. an agreement to CONTRIBUTE money, property, or industry to a COMMON
FUND
2. intent to divide the profits among the contracting parties
* when our internal Revenue Code includes “partnerships” among the entities
subject to the tax on “corporations”, said code which are not necessarily
“partnerships” in the technical sense of the term
* PARTNERSHIPS – includes a SYNDICATE, GROUP, POOL, JOINT VENTURE, or
other unincorporated organization, through or by the means of which any business,
financial operation, or venture is carried on
* a joint venture need not be undertaken in any of the standard forms,
or in conformity with the usual requirements of the law on partnerships, in order
that one could be deemed constituted for purposes of the TAX on corporations
PASCUAL vs. C.I.R.
* co-ownership or co-possession does not itself establish a partnership, whether
such co-owners or co-possessors do or do not share any profits made by the use of
the property
* the sharing of gross returns does not itself establish a partnership, within the
persons sharing them have a joint or common right or interest in any property from
which the returns are derived
* aside from the circumstances of profit, the presence of other elements
constituting partnership is necessary, such as:
1. the clear intent to form a partnership
2. the existence of a juridical personality different from that of the individual
partners
AND
3. the freedom to transfer or assign any interest in the property by one with
the consent of the others
* an isolated transaction whereby 2 or more persons contribute funds to buy
certain real estate for profit in the absence of other circumstances showing a
contrary intention cannot be considered a partnership
* persons who contribute property or funds for a common enterprise and agree to
share the gross returns of that enterprise in proportion to their contribution, BUT
who severally retain the title to their respective contribution, are not thereby
rendered partners
 they have no common stock or capital and no community of interest as
principal proprietors in the business itself which the proceeds derived
* a joint purchase of land, by two does not constitute a co-partnership in respect
thereto, NOR does an agreement to share the profits and losses on the sale of land
create a partnership
* in order to constitute a PARTNERSHIP INTER SESE there must be:
A) an intent to form the same
B) generally participating in both profits and losses
AND
C) such a community of interest, as far as third persons are
concerned as enables each party to make a contract, manage the
business, and dispose of the whole property
* the common ownership of property does not itself create a partnership between
the owners, though they may use it for the purpose of making gains AND they may
without becoming partners, agree among themselves as to the management and
use of such property and the application of the proceeds therefrom
* the sharing of returns does not in itself establish a partnership within the
persons sharing therein have a joint or common right or interest in the property
 there must be:
1. clear intent to form a partnership
2. the existence of a juridical personality different from the individual partners
AND
3. the freedom of each party to transfer or assign the whole property
DUTERTE vs. RALLOS
* an agreement between 2 persons to operate a cockpit, by which one is to
contribute his services and the other to provide the capital, the profits to be divided
between them, constitutes a partnership
DELUAO vs. CASTEEL
* a contract of partnership to exploit a fishpond pending its award to any qualified
party or applicant is VALID BUT a contract of partnership to divide the fishpond after
such award is ILLEGAL
* one of the causes of dissolution is – any event which make it unlawful for the
business of the partnership to be carried on or for the members to carry it on in
partnership
C.I.R. vs. SUTER
* a UNIVERSAL PARTNERSHIP requires either that the object of the association
be:
1. all the present property of the partners as contributed by them to the
common fund
OR
2. all that the partners may acquire by their industry or work during the
existence of the partnership
* the subsequent marriage of the partners could not operate to dissolve the
partnership because it is not one of the causes provided for dissolution by law with
regards to limited partnerships
* partnership has distinct and separate personality from that of its partners
* a husband and wife may not enter into a contract of general co-partnership/
UNIVERSAL partnership
ACOAD vs. MABATO
* a partnership may be constituted in any form EXCEPT where immovable
property or real rights are contributed thereto, in which case a public instrument
shall be necessary
* A CONTRACT of PARTNERSHIP is VOID
 whenever immovable property is contributed thereto, if “inventory” of
said property is not made, signed by the parties and attached to the public
instrument
EVANGELISTA vs. ABAD SANTOS
* an INDUSTRIAL PARTNER cannot engage in BUSINESS FOR HIMSELF, UNLESS
the partnership expressly permits him to do so
 IF HE SHOULD DO SO, the capitalist partners may either:
1. EXCLUDE him from the firm
OR
2. AVAIL themselves of the benefits which he may have obtained in violation
of this provision
 with a right to DAMAGES in either case
* the prohibition against an industrial partner engaging in business for himself
seeks to prevent any conflict of interest between the industrial partner and the
partnership and to ensure faithful compliance by said partner with his prostation
14