Beruflich Dokumente
Kultur Dokumente
APPOINTMENT AS MANAGER AFTER THE 1. Two or more partners have been appointed as
CONSTITUTION OF THE PARTNERSHIP managers;
Appointment may be revoked at any time for any 2. There is no specification of their respective duties;
cause what so ever.
3. There is no stipulation that one of them shall not
Reason: Revocation not founded on a change of will act without the consent of all the others.
on the part of the partners. Appointment is not
UNANIMITY OF ACTION
condition of contract. It is merely a simple contract of
agency, which may be revoking at any time. It is (Art. 1802)
believe that the vote for revocation must also
represent the controlling interest. WHEN UNANIMITY OF ACTION STIPULATED
SCOPE OF THE POWER OF THE MANAGING PARTNER 1. Concurrence necessary for validity of acts
General rule: Partner appointed as manager has all The partners may stipulate that none of the
the powers of a general agent as well as all the managing partners shall act without the consent
incidental powers necessary to carry out the object of of the others. In such a case, the unanimous
the partnership in the transaction of its business. consent of all the managing partners shall be
necessary for the validity of their acts. This
Exception: When powers of manager is specifically consent is so indispensable that neither absence
restricted. A managing partner may not bind the nor disability of any one of them may allege as
partnership by contract foreign to its business. excuse to dispense with requirement.
A partner may associate another person with him The relation between the partners is essentially
in his share without the consent of other fiduciary involving trust and confidence, each partner
partners. Such associate is called a subpartner. considered in law, as he is, in fact, the confidential
agent of the others. The duties of a partner are
A subpartnership is a partnership within a
analogous to those of a trustee.
partnership that is distinct and separate from the
main or principal partnership. 1. Duty to act for common benefit
2. Duty to account for secret and similar profits
2. Division of profits
3. Duty to account for earnings accruing even
How profits between the members of a after termination of partnership
subpartnership are to be divided is immaterial. 4. Duty to make full disclosure of information
belonging to partnership
RIGHT OF THE PERSON ASSOCIATED WITH THE
PARTNERSHIPS SHARE RIGHTS OF CAPITALIST PARTNERS
Firm is defined as the name, title, or style under NATURE OF INDIVIDUAL LIABILITY OF PARTNERS
which a company transacts business; a partnership
1. Pro rata Literally, pro rata liability means
of two or more persons; a commercial house. The
proportionate distribution of liability. In the
term is also used as synonymous with company.
law of obligations, the concurrence of two or
IMPORTANCE OF HAVING A FIRM NAME more debtors in one and the same obligation
makes it prima facie a joint (pro rata)
A partnership must have a firm name under which it obligation, and the debts is presumed divided
will operate. A firm name is necessary to distinguish into as many equal shares as there are
the partnership, which has a distinct and separate debtors and each one of them is bound to
juridical personality from the individuals composing pay only his share.
the partnership and from other partnerships and
entities.
2. Subsidiary or secondary the partners The particular partner who undertakes to bind his co-
become personally liable only after all partners by a contract without authority is himself
partnership assets have been exhausted. personally liable on such contract.
3. Liability of industrial partner Even the
industrial partner who is not liable for losses REAL PROPERTY OF PARTNERSHIP
would have to pay but of course, he can
(Art. 1819)
recover the amount he has paid from the
capitalist partners unless there is an CONVEYANCE OF REAL PROPERTY BELONGING TO
agreement to the contrary. PARTNERSHIP
DISTINCTION BETWEEN A LIABILITY AND A LOSS 1. Prima facie ownership of real property The
ownership of real estate is prima facie that is
The inability of a partnership to pay a debt to a third
indicated by the certificate of title.
party at a particular time does not necessarily mean
that the partnership business has been operated at a
2. Legal effects of conveyance The real
loss.
property may be registered or owned in the
STIPULATION AGAINST LIABILITY name of (a) the partnership, (b) one or more
but not all the partners, (c) one or more or all
(Art. 1817) the partners, or in a third person in trust for
the partnership; or (d) all the partners.
A stipulation among the partners contrary to the pro
rata and subsidiary liability expressly imposed by
Article 1816 is void and is only valid and enforceable PROTECTION OF INNOCENT PURCHASERS FOR
as among partners. VALUE
The incoming partner is liable directly to the old A partnership having ceased to exist since 1959, the
partnership creditors such that the latter has the partnership is no more a juridical personality nor
right of action against the incoming partner, if the have the capacity to sue and be sued.
assumption was made primarily to benefit the firm
creditors. EFFECT OF WITHDRAWAL BEFORE EXPIRATION OF
THE TERM
REASON FOR RULE MAKING NEW PARTNER LIABLE
Even if there is a specified term, one partners cause
This is not a harsh rule because the incoming partner its dissolution by expressly withdrawing even before
partakes of the benefit of the partnership property, the expiration of the period, with or without justifiable
and an established business. He has every means of cause. Of course, if the cause is not justified or no
obtaining full knowledge of protecting himself, cause was given, the withdrawing partner is liable for
because he may insist on the liquidation or damages but in no case can he be compelled to
settlement of existing partnership debts. remain in the firm. With his withdrawal, the number
of members is decreased, hence, the dissolution. And
PREFERENCE OF PARTNERSHIP CREDITORS in whatever way we view the situation, the conclusion
is inevitable that the partners were to be guided in
(Art. 1827)
the liquidation of the partnership by the provisions of
With respect to partnership assets, the partnership its duly registered articles of partnership
creditors are entitled to priority of payment.
WHO MAY PETITION FOR DISSOLUTION
REMEDY OF PRIVATE CREDITORS OF A PARTNER
(Art. 1831)
Without prejudice to the right to preference of
Dissolution of a partnership may be decreed by the
partnership creditors, the creditors of each partner
court on application either (1) by a partner or, in case
may ask for the attachment and public sale of the
he has assigned his interest, (2) by his assignee.
share of the latter in the partnerships assets.
EFFECT OF DISSOLUTION TO PARTNERS AUTHORITY
CHAPTER 3 DISSOLUTION OR WINDING UP
(Art. 1832)
(Arts. 1828 and 1829)
General Rule: If the cause of dissolution is not by act,
DISSOLUTION, WINDING UP, AND TERMINATION
death, or insolvency of a partner, the authority
EXPLAINED
ceases immediately.
Dissolution, winding up, and termination should not
Exception: For the purposes of winding-up
be confused because they are distinct terms in law.
partnership affairs.
Dissolution designates the point in time when the
partners cease to carry on the business together: LIABILITY OF PARTNERS AFTER DISSOLUTION
termination is the point in time when all partnership
affairs are wound up; winding up is the process of (Art. 1833)
settling partnership affairs after dissolution.
General Rule: If the cause of dissolution is the death,
CAUSES OF PARTNERSHIP DISSOLUTION act, or insolvency of a partner, authority of a partner
to bind ceases upon the knowledge of the
(Art. 1830) dissolution.
CAUSES OF DISSOLUTION IN GENERAL If dissolution is caused by act of one of parties, co-
partners are also liable to contribute towards a
Generally, a partnership may be dissolved by causes:
liability as if no dissolution has happened, provided
(1) without violation of the agreement between the that there is no notice or the partner does not have
partners; or knowledge of the dissolution.
(Art. 1840)
(Art. 1841)