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The document provides an introduction to the law of partnership in Bangladesh. It defines a partnership as the relation between persons who have agreed to share the profits of a business carried on by all or any of them. There are three key elements required to form a partnership: an agreement between the partners, the objective of carrying on a business, and the business being carried out by all or one partner acting for all. Sharing profits alone does not necessarily create a partnership. The document contrasts partnerships with other organizations like clubs, joint ownership, and companies.
The document provides an introduction to the law of partnership in Bangladesh. It defines a partnership as the relation between persons who have agreed to share the profits of a business carried on by all or any of them. There are three key elements required to form a partnership: an agreement between the partners, the objective of carrying on a business, and the business being carried out by all or one partner acting for all. Sharing profits alone does not necessarily create a partnership. The document contrasts partnerships with other organizations like clubs, joint ownership, and companies.
The document provides an introduction to the law of partnership in Bangladesh. It defines a partnership as the relation between persons who have agreed to share the profits of a business carried on by all or any of them. There are three key elements required to form a partnership: an agreement between the partners, the objective of carrying on a business, and the business being carried out by all or one partner acting for all. Sharing profits alone does not necessarily create a partnership. The document contrasts partnerships with other organizations like clubs, joint ownership, and companies.
The law relating to partnership (Bangladesh and also in Indo-Pakistan sub-Continent) was originally contained in Chapter XI of the Contract Act. That Chapter is now repealed and the present law is embodied in a separate enactment (the Partnership Act. 1932), which particularly relate to partnership. However, it does not depart from any well-established conceptions or principles but aims at laying down the law in a more exhaustive manner, in clear and definite propositions carefully and systematically arranged.
Please Note: The general provisions of the Contract Act, 1872 continue to be applicable to partnership firms and their transactions, in so far as they are not inconsistent with the provisions of the Partnership Act, 1932. [S. 8]
Nature of Partnership: Partnership (as defined in the Partnership Act, 1932) is the relation between persons who have agreed to share the profits of a business carried on by all, or any of them acting for all. Persons who have entered into a partnership with one another are called individually “partners” and collectively “firm”, and the name under which their business is carried on is called the “firm name”. The definition of partnership contains three elements and they must be present to create partnership (Sec. 4).
These elements are:
1. There must be an agreement entered into by all the partners. Partnership is created by a contract; it does not arise by the operation of law. Joint ownership/Co-ownership may arise by the operation of law, but not partnership. On the death of a person his children may inherit the family property jointly together with the family business and may share the profits of the business equally; but they are not for that reason partners. Thus, Sec. 5 states that, “The relation of partnership arises from contract and not from status”. In particular the members of a Hindu undivided family carrying on a family business, as such, are not partners in such business. When a sole proprietor of a business dies leaving a number of hires. The heirs inherit the stock in trade of the business including the goodwill of the business but do not become partners until there in an agreement, express or implied, to carry on the business as partners.
2. The object of the agreement or contract is to carry on a business. Where there is no combination to carry on business, there is no partnership. Business includes any trade, occupation or profession. If two or more persons join together to form a music club it is not a partnership because there is no business in this case. But if two or more persons join together to give musical performances to the public with a view to earning profit, there is a business and a partnership is formed. However, the mere fact that several persons own something in common which produce returns and divide those returns according to their respective interest does not make them partners. The profits contemplated here are ‘net-profits’, (i.e., excess of the returns over advances); and the business which the partners are expected to carry on must, of course, be legal.
3. The business must be carried on by all or one of them acting for all. Each partner has the right to carry on the business; but as a matter of practice the business is managed by one or more of them acting for all. In a contract of
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Part 1 partnership, there is an implied agency; each partner is an agent of the other partners.
In order to find out whether a person is a partner or not, we shall have to pay attention to the intention of the parties. Sharing of profits arising out of a business is undoubtedly a very strong evidence of partnership, but it is not the conclusive evidence. Thus, a loan of money given to persons engaged or about to be engaged in a particular business on condition that the lender shall receive a share of the profits, does not, of itself, make the lender a partner Similarly, a servant or an agent who gets as his remuneration a share of the profits of a business in which he is engaged is not necessarily a partner in the business. For the same reason an annuity paid to the widow or child of a deceased partner out of the profits of a business, does not, of itself, make such widow or child a partner. Again, a creditor who supervises the conduct of a debtor’s trade with an agreement that he will be paid out of the profits of the business does not thereby become debtor partner. It follows, therefore, that in order to determine whether there is partnership between persons, we shall have to look into the agreement itself to find out the intention of the parties.
Please note: The word ‘firm’ is simply a collective name for all the partners. But it must not be supposed that it is an ‘artificial person’ like a corporation or a limited company. The contract of a firm means the contract of all the partners. It makes no difference that a firm bears a distinct name.
Who can be a partner?
In terms of law a person may be a partner if he has the capacity to enter into a contract (since partnership cannot be created without an agreement / contract). However, for the purpose of The Partnership Act, 1932 the term ‘person’ does not include a ‘partnership’ or ‘limited company’ (Q.G.M. Refining Co. Vs. Commissioner of Income Tax AIR (1967) Cal 429. Since the liability of the members of a partnership firm, for the debts of the firm, is unlimited, a limited company cannot be a partner (even though a company is a artificial person in law), because a company cannot incur unlimited liability. Again, person of ‘unsound mind’ and ‘align enemy’ also cannot become a partner.
Organization similar to partnership:
A. A club: Club is an ‘association of persons’ formed for social purposes and unlike a partnership it is not a business; there is no motive of earning profits and sharing them; a member of a club is not the agent of the other members; a member is not responsible for the debts of the club unless he participated in the transaction; and, the death or registration of a member does not affect the existence of the club.
B. Co-ownership / Joint ownership: A co-owner is not the agent of the other owners i.e. the rights of co-owner cannot be affected by the act done by the other owner. Unlike, partnership co-ownership arise not only by agreement but also by operation of law, co-owner can transfer his interest to any third party without the consent of other co-owners but if a partner does so, the new transferee will never became a partner unless other parties give their consent, co-ownership may exists with any business (joint ownership of a residential house) but partnership always implies business, sharing profit or losses is immaterial in a co-ownership but in partnership there must be sharing of profits. Partners has lien on partnership assets (for money spent by him), whereas co-owners has no lien under similar circumstances.
C. A company: A company may be distinguished from a partnership in the following:
I. Legal Entity: A company has a separate legal entity from its members; but a firm is not distinct from the persons who compose it.
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Part 1 II. Property: In a company, the property of the company belongs to the company not to the individuals composing it. In partnership, however, the property of the firm is the property of the individuals composing it.
III. Liability to Creditors: In the case of a company, the creditors can proceedagainst the company alone and the members of the company are not liable to them. Creditors of partnership, however, are the creditors of individual partners. The partners are liable to the creditors jointly as well as severally.
IV. Agency: A member of a company is never deemed to be an agent of the company, whilst a partner can dispose of the property and incur liabilities in the course of the firm’s business because each partner is the agent of every other partner (Mutual Agents).
V. Availability of restrictions on powers against outsiders: The restrictions on power imposed on the company in the articles of associations are effective against the public because they are a public document and one can find out what they contain. In a partnership, restrictions on the powers of a particular partner, contained in the agreement of partnership, will not avail against outsiders.
VI. Contract with firm or company: A partner cannot contract with his firm, whereas a member of a company can.
VII. Transfer of shares: A shareholder of a company can transfer his shares without the consent of other shareholders because the company’s shares are freely transferable. A partner cannot transfer his share and make the transferee a member of the firm without the consent of the other partners.
VIII. Limit of liability: The liability of a shareholder of a company may be limited either by shares or by a guarantee. A partner’s liability is always unlimited.
Hindu joint family which carries on a trade inherited from its ancestors is D. Joint Hindu family: A called a Hindu Joint Family firm. Such firms are very common in Indian Sub-continent, particularly among Hindus governed by the Mitakhsara school. But such a firm is quite different from a contractual partnership.
Classes of Partners:
In terms of customs and usages in our region (British India) partners may be classified as (a) Active partner (b) Dormant / sleeping / nominal partner a nd (c) Sub-partner.
An active partner is one who actually participate in the business of the firm, whereas partners who joins the firm by agreement but do not take any active part in the management of the firm are known as dormant / sleeping partners. But their (dormant partners) liabilities are similar as of an active partner. A sub-partner is the transferee of a share of partner’s interests in a firm (i.e. if partner A, owner of 25% of a firm, transfer half of his share to B, then B will be called a sub-partner). A sub-partners right and liberties are limited.
Partnership property:
In the absence of any agreement to the contrary between the partners, property of the firm is deemed to include- (a) All property rights and interests which partners may have brought into the common stock as their contribution to the common business, (b) All property rights and interests acquired or purchased by or for the firm, or for the purposes and in the course of the business of the firm, (c) The good-will of the business [Sec. 14].
Please note: Goodwill of a firm is an asset of the firm. In the absence of any provision expressly made or clearly implied, the normal rule is that the share of a decreased partner, including AAJ 3 | Page Part 1 goodwill, devolves upon his legal representatives. [Khurshal Khengar Shah & Ors. v. Khorshedbanu Dadiba Boatwalla & Ors.] 1971 SCA 16 (Supreme Court). Unless the contrary impression appears, property and rights and interests in property acquired with money belonging to the firm are deemed to have been acquired for the firm.
‘Goodwill’ in Partnership Firm:
“Goodwill” means the whole advantage, whatever it may be, of the reputation and connection of the firm. It may be described as the advantage which is acquired by a business beyond the mere value of the capital, stock, fund or property employed therein, in consequence of the general public patronage and encouragement, it receives from constant or habitual customers. Apart from the right to use the name of the firm goodwill involves a right to represent that you are carrying on the business of the firm, to solicit customers of the old firm and to prevent anybody else from saying that he is carrying on the business.
When a firm is dissolved, every partner (or his representative may), in the absence of a contract between the partners to the contrary, restrain any other partner (or his representative) from carrying on a similar business in the firm name or from using any of the properties of the firm for his own benefit until the affairs of the firm have been completely wound up. However, if any partner has bought the goodwill of the firm, he is, of course, entitled to use the firm-name.
Where the goodwill of a firm is sold after dissolution, a partner may carry on a business competing with that of the buyer and the he may advertise such business, but, subject to agreement between him and the buyer, he may not- (a) use the firm -name (b) represent himself as carrying on the business of the firm or (c) solicit the custom of persons who were dealing with the firm before its dissolution. (Sec. 55 Cl. 2)
Any partner may, upon the sale of the goodwill of a firm, make an agreement with the buyer that such partner will not carry on any business similar to that of the firm within a specified period or within specified local limits provided the restrictions imposed are reasonable. (Sec. 55 Cl. III)
Kinds of Partnership:
1. Partnership at will: A partnership may be formed for a limited or unlimited period. When, however, no provision is made by a contract between the partners for the duration, or termination of their partnership, the partnership is called a partnership at will (Sec. 7). However, if a partnership is created for a fixed period and therefore continued the business beyond the said period, then there is a valid partnership at will PLD (1960) Supreme Court 330. It is also to be noted, if the firm was registered one then new registration is necessary.
2. Particular Partnership: When a partnership has been formed for a particular adventure or undertaking, it is called a particular partnership. A particular partnership can be for one transaction on one adventure only (Sec. 8). Mohammad Zakaria Vs. Mazher Ali. PLD (1961) Kar, 213.
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