Partnership Reviewer
Partnership Reviewer
Partnership Reviewer
Juridical
personality
Purpose
PARTNERSHIP
Created by a
contract, my mere
agreement of the
parties
Has a juridical
personality separate
and distinct from that
of each partner
Realization of profits
Duration/
Term of
existence
No limitation
Disposal/
Transferability
of interest
Power to act
with 3rd
persons
Effect of
deat
h
Dissolution
No. of
incorporators
Commencement of
juridical
personality
May be dissolved at
any time by the will of
any or all of the
partners
Minimum of 2
persons
From the moment of
execution of contract
of partnership
CO-OWNERSHIP
Created by law
CORPORATION
Created by law
None
Has a juridical
personality separate
and distinct from that
of each partner
Depends on AOI
Common enjoyment
of a thing or right
10 years maximum
Co-owner cannot
represent the coownership
Death of co-owner
does not necessarily
dissolve coownership
May be dissolved
anytime by the will of
any or all of the coowners
Minimum of 2
persons
From date of
issuance of certificate
of incorporation by
the SEC
50 years maximum,
extendible to not
more than 50 years in
any one instance
Stockholder has a
right to transfer
shares without prior
consent of other
stockholders
Management is
vested with the Board
of Directors
Death of stockholder
does not dissolve
corporation
Can only be dissolved
with the consent of
the state
Minimum of 5
incorporators
LAW ON PARTNERSHIP
ATTY. TYRON KIM D. BACULO
LAW ON PARTNERSHIP
ATTY. TYRON KIM D. BACULO
b. PARTNERSHIP WITH A FIXED TERM - the term for which the partnership is to
exist is fixed or agreed upon or one formed for a particular undertaking
4. As to legality of existence
a. DE JURE PARTNERSHIP - one which has complied with all the legal
requirements for its establishment
b. DE FACTO - one which has failed to comply with all the legal requirements for its
establishment
5. As to representation to others
a. ORDINARY OR REAL PARTNERSHIP - one which actually exists among the
partners and also as to 3rd persons
b. OSTENSIBLE OR PARTNERSHIP BY ESTOPPEL - one which in reality is not a
partnership but is considered a partnership only in relation to those who, by their
conduct or omission, are precluded to deny or disprove its existence
6. As to publicity
a. SECRET PARTNERSHIP - one wherein the existence of certain persons as
partners is not avowed or made known to the public by any of the partners
b. OPEN OF NOTORIOUS PARTNERSHIP - one whose existence is avowed or
made known to the public by the members of the firm
7. As to purpose
a. COMMERCIAL OR TRADING PARTNERSHIP - one formed for the transaction
of business
b. PROFESSIONAL OR NON TRADING PARTNERSHIP - one formed for the
exercise of a profession
KINDS OF PARTNERS
1. CAPITALIST - one who contributes money or property to the common fund
2. INDUSTRIAL - one who contributes only his industry or personal service
3. GENERAL - one whose liability to 3rd persons extends to his separate property
4. LIMITED - one whose liability to 3rd persons is limited to his capital contribution
5. MANAGING - one who manages the affairs or business of the partnership
6. LIQUIDATING - one who takes charge of the winding up of partnership affairs upon
dissolution
7. PARTNERS BY ESTOPPEL - one who is not really a partner but is liable as a
partner for the protection of innocent 3rd persons
8. CONTINUING PARTNER - one who continues the business of a partnership after it
has been dissolved by reason of the admission of a new partner, retirement, death or
expulsion of one of the partners
9. SURVIVING PARTNER - one who remains after a partnership has been dissolved by
death of any partner
10. SUBPARTNER - one who is not a member of the partnership who contracts with a
partner with reference to the latter's share in the partnership
11. OSTENSIBLE - one who takes active part and known to the public as partner in the
business
12. SECRET - one who takes active part in the business but is not known to be a partner
by outside parties
13. SILENT - one who does not take any active part in the business although he may be
known to be a partner
14. DORMANT - one who does not take active part in the business and is not known or
held out as a partner
RELATIONS CREATED BY A CONTRACT OF PARTNERSHIP
1. Relations among the partners themselves
2. Relations of the partners with the partnership
3. Relations of the partnership with 3rd persons with whom it contracts
4. Relations of the partners with such 3rd persons
LAW ON PARTNERSHIP
ATTY. TYRON KIM D. BACULO
REMEDY
INDUSTRIAL PARTNER
Industrial partner cannot engage
in business (w/n same line of
business with the partnership)
unless partnership expressly
permits him to do so
Capitalist partners may:
1. Exclude him from the firm, or
2. Avail themselves of the
benefits which he may have
obtained
3. Damages, in either case
CAPITALIST PARTNER
Capitalist partner cannot engage
in business (with same kind of
business with the partnership) for
his own account, unless there is
a stipulation to the contrary
Capitalist partner in violation
shall:
1. Bring to common fund any
profits accruing to him from
said transaction, and
2. Bear all losses
LAW ON PARTNERSHIP
ATTY. TYRON KIM D. BACULO
Requisites:
a. There is an imminent loss of the business of the partnership
b. The majority of the capitalist partners are of the opinion that an additional
contribution to the common fund would save the business
c. The capitalist partner refuses deliberately to contribute (not due to financial
inability)
d. There is no agreement to the contrary
Obligation of managing partners who collects debt from person who also owed
the partnership
1. Apply sum collected to 2 credits in proportion to their amounts
2. If he received it for the account of partnership, the whole sum shall be applied to
partnership credit
Requisites:
a. There exist at least 2 debts, one where the collecting partner is creditor and the
other, where the partnership is the creditor
b. Both debts are demandable
c. The partner who collects is authorized to manage and actually manages the
partnership
Obligation of partner who receives share of partnership credit
1. Obliged to bring to the partnership capital what he has received even though he may
have given receipt for his share only
Requisites:
a. A partner has received in whole or in part, his share of the partnership credit
b. The other partners have not collected their shares
c. The partnership debtor has become insolvent
RISK OF LOSS OF THINGS CONTRIBUTED
Specific and determinate things which are not fungible
where only the use is contributed
Specific and determinate things the ownership of which
is transferred to the partnership
Fungible things (consumable)
Things contributed to be sold
Things brought and appraised in the inventory
LAW ON PARTNERSHIP
ATTY. TYRON KIM D. BACULO
without specification of
duties/stipulation that each
shall not act w/o the other's
consent
Stipulated that none of the
managing partners shall act
w/o the consent of others
decision of partners
owning controlling interest
shall prevail
Concurrence of all
necessary for the validity of
acts
Manner of management
not agreed upon
Absence or disability of
any one cannot be alleged
unless there is imminent
danger of grave or
irreparable injury to
partnership
If refusal of partner is
manifestly prejudicial to
interest of partnership,
court's intervention may be
sought
LAW ON PARTNERSHIP
ATTY. TYRON KIM D. BACULO
5. Partners and the partnership are solidary liable to 3rd persons for the partner's tort or
breach of trust
6. Liability of incoming partner is limited to:
a. His share in the partnership property for existing obligations
b. His separate property for subsequent obligations
7. Creditors of partnership preferred in partnership property & may attach partner's
share in partnership assets
8. Every partner is an agent of the partnership
POWER OF PARTNER AS AGENT OF PARTNERSHIP
Acts for carrying on in the usual way the business of the Every partner is an agent
partnership
and may execute acts with
binding effect even if he has
no authority
Except: when 3rd person
has knowledge of lack of
authority
1. Act w/c is not apparently for the carrying of business Does not bind partnership
in the usual way
unless authorized by other
partners
2. Acts of strict dominion or ownership:
a. Assign partnership property in trust for
creditors
b.
c.
d.
Confess a judgement
e.
Enter
into
compromise
partnership claim or liability
concerning
f.
Submit partnership
arbitration
or
to
claim
liability
LAW ON PARTNERSHIP
ATTY. TYRON KIM D. BACULO
or
2. Buyer had knowledge of lack of authority
Title in name of 1/more/all Conveyance will only pass equitable interest
partners or 3rd person in trust
for partnership, Conveyance
executed
in
partnership
name of in name of partners
Title in name of all partners, Conveyance will pass title
Conveyance in name of all
partners
PARTNER BY ESTOPPEL; PARTNERSHIP BY ESTOPPEL
Partner by estoppel - by words or conduct, he does any of the ff.:
1. Directly represents himself to anyone as a partner in an existing partnership or in a
non-existing partnership
2. Indirectly represents himself by consenting to another representing him as a partner
in an existing partnership or in a non existing partnership
Elements to establish liability as a partner on ground of estoppel:
1. Defendant represented himself as partner/represented by others as such and not
denied/refuted by defendant
2. Plaintiff relied on such representation
3. Statement of defendant not refuted
Liabilities in estoppel
All partners consented to representation
No existing partnership & all those represented
consented;
Not all partners of existing partnership consents to
representation
No existing partnership & not all represented consented;
None of partners in existing partnership consented
Partnership is liable
Person who represented
himself & all those who
made representation liable
pro-rata/jointly
Person who represented
himself liable & those who
made/consented
to
representation separately
liable
LAW ON PARTNERSHIP
ATTY. TYRON KIM D. BACULO
2.
3.
4.
5.
6.
7.
8.
LAW ON PARTNERSHIP
ATTY. TYRON KIM D. BACULO
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LAW ON PARTNERSHIP
ATTY. TYRON KIM D. BACULO
2. Creditors have an equitable lien on the consideration paid to the retiring /deceased
partner by the purchaser when retiring/deceased partner sold his interest w/o final
settlement with creditors
3. Rights if retiring/estate of deceased partner:
a. To have the value of his interest ascertained as of the date of dissolution
b. To receive as ordinary creditor the value of his share in the dissolved
partnership with interest or profits attributable to use of his right, at his option
Right to Account - may be exercised by:
1. Winding up partner
2. Surviving partner
3. Person/partnership continuing the business
Manner of Winding Up
1. Judicially
2. Extrajudicially
Persons Authorized to Wind Up
1. Partners designated by the agreement
2. In absence of agreement, all partners who have not wrongfully dissolved the
partnership
3. Legal representative of last surviving partner
LIMITED PARTNERSHIP
CHARACTERISTICS
1. Formed by compliance with statutory requirements
2. One or more general partners control the business
3. One or more general partners contribute to the capital and share in the profits but do
not participate in the management of the business and are not personally liable for
partnership obligations beyond their capital contributions
4. May ask for the return of their capital contributions under conditions prescribed by
law
5. Partnership debts are paid out of common fund and the individual properties of
general partners
DIFFERENCES BETWEEN GENERAL AND LIMiTED PARTNER/PARTNERSHIP
GENERAL
LIMITED
Personally liable for partnership
Liability extends only to his capital
obligations
contributions
When manner of mgt. not agreed upon,
No participation in management
all gen partners have an equal right in the
mgt. of the business
Contribute cash, property or industry
Contribute cash or property only, not
industry
Proper party to proceedings by/against
Not proper party to proceedings
partnership
by/against partnership
Interest not assignable w/o consent of
Interest is freely assignable
other partners
Name may appear in firm name
Name must appear in firm name
Prohibition against engaging in business
No prohibition against engaging in
business
Retirement, death, insolvency, insanity of Does not have same effect; rights
gen partner dissolves partnership
transferred to legal representative
REQUIREMENTS FOR FORMATION OF LIMITED PARTNERSHIP
1. Certificate of articles of the limited partnership must state the ff. matters:
a. Name of partnership + word "ltd."
b. Character of business
c. Location of principal place of business
d. Name/place of residence of members
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LAW ON PARTNERSHIP
ATTY. TYRON KIM D. BACULO
e.
f.
g.
h.
i.
j.
k.
l.
m.
AS TRUSTEE
Specific property stated as contributed but
not yet contributed/wrongfully returned
Money/other property wrongfully paid/
conveyed to him on account of his
contribution
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LAW ON PARTNERSHIP
ATTY. TYRON KIM D. BACULO
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