Professional Documents
Culture Documents
Agency Trusts and Partnership Reviewer
Agency Trusts and Partnership Reviewer
CHARACTERISTICS OF PARTNERSHIP
1. CONSENSUAL- perfected by mere consent
I. GENERAL PROVISIONS 2. NOMINATE- has special name or designation
(ARTICLES 1767-1783) 3. BILATERAL- entered into by two or more persons and
the rights and obligations are reciprocal
4. ONEROUS- each of the parties aspires to procure for
himself a benefit through the giving of something
ARTICLE 1767 5. COMMUTATIVE- undertaking of each of the partners is
considered as the equivalent of that of the others.
DEFINITION OF PARTNERSHIP 6. PRINCIPAL- independent for its existence and validity
7. PREPARATORY- entered into as a means to an end.
1. A CONTRACT of two or more competent person to
place their money, effects, labor and skill, or some, or all of
them. ELEMENTS OF PARTNERSHIP
2. An ASSOCIATION of two or more persons to carry-on 1. VALID CONTRACT
as co-owners of a business for profit. 2. PARTIES’ LEGAL CAPACITY
3. A LEGAL RELATION whereby parties unite their 3. MUTUAL CONTRIBUTION OF MONEY, PROPERTY, OR
property, labor, or skill in carrying on some lawful business as INDUSTRY TO A COMMON FUND
principals for their joint profit. 4. LAWFUL OBJECT
4. The STATUS arising out of a contract whereby they 5. PRIMARY PURPOSE MUST BE TO OBTAIN PROFITS AND
agree to share as common owners the profits of a business. TO DIVIDE THE SAME AMONG THE PARTIES
5. An Organization for production of income
6. An ENTITY, distinct and apart from the members
composing it. EXISTENCE OF A VALID CONTRACT
7. A JOINT UNDERTAKING to share in the profit and loss. A. FORM
- terms may be oral or written, express
or implied from the acts and
CONCEPT OF PARTNERSHIP declarations of the parties subject to
the provisions of 1771-1773.
CIVIL LAW CONCEPT *AMERICAN CONCEPT B. ARTICLES OF PARTNERSHIP
a) name,
1. Art. 1767 is based on the 1. based on the result of the b) nature/purpose and location of
agreement itself out of contract or agreement of the firm, and
which a partnership is the parties out of which the c) defining the powers, rights, duties
created. partnership is created, that and liabilities of the partners,
is, the JURIDICAL RELATION d) their contributions,
e) the manner by which the profits
2. has a juridical personality 2. does not recognize such and losses are to be shared, and
of its own, distinct and separate juridical personality f) the procedure for dissolving the
separate from that of each partnership.
of the partners.
C. REQUISITES OF A VALID CONTRACT
-A partnership liability may be imposed upon c. Where the entry of the foreign
a person under principles of estoppel where he corp. as a limited partner in a limited
holds himself out, or permits himself to be held out, partnership is merely for investment
as a partner in an enterprise. purposes and it shall not take part in
the management and control of the
*NOTES: business operation of the partnership.
-A partnership MAY BE CREATED WITHOUT
ANY DEFINITE INTENTION TO CREATE IT.
-In case there is no written agreement, the CONTRIBUTION OF MONEY, PROPRIETY, OR INDUSTRY
existence or non-existence of a partnership must
be determined from the A. MONEY
>conduct of the parties -currency which is the legal tender in the PH.
>any documentary evidence
>testimony of the parties B. PROPERTY
-may be real or personal, corporeal or
incorporeal.
LEGAL CAPACITY OF THE PARTIES
C. INDUSTRY
1. INDIVIDUAL -it has been interpreted to mean the
*The ff. cannot give consent to a active cooperation, the work of the party
contract of partnership. associated, which may either personal manual
a. Unemancipated minors efforts or intellectual, and for which he
b. Insane or demented persons receives a share in the profits (not merely
c. Deaf-mutes who do not know salary) of the business.
how to write
d. Persons who are suffering from NOTES:
civil interdiction -The contribution of a partner may be in
e. Incompetents who are under three forms, or any two or one of them.
guardianship. -The law does not specify the kind of industry
f. Persons who are prohibited from that a partner may contribute.
giving each other any donation or -A LIMITED PARTNER IN A LIMITED
advantage cannot enter into a universal PARTNERSHIP, HOWEVER, CANNOT CONTRIBUTE
partnership. MERE INDUSTRY OR SERVICES.
g. A married woman if there’s an -The partner contributing his industry or
objection on the part of the husband. services must not be subject to the supervision of
(however, husband’s consent is not the other partners.
necessary as long as the latter do not
object) -PROOF OF CONTRIBUTION is NOTE NCESSARY
to a common fund with the intention of dividing
2. PARTNERSHIP the income or profits obtained therefrom.
3. CORPORATIONS -HOWEVER, if the agreement provide =s
-GENERAL RULE: -A corporation is simply that one of the parties is to give and the
WITHOUT CAPACITY OR POWER to enter other is to receive a half interest in the profit
into a contract of partnership. without anything being promised toward the
-EXCEPTION: unless authorized bu accomplishment of its object, NO ENFORECEABLE
statute or by its charter. CONTRACT EXITS.
Reason:-based on public -but if the latter takes part in carrying
policy, since in a partnership the on the enterprise and subjects himself to
corporation would be bound by the partnership liability to outsiders, he furnishes
acts of persons who are not its sufficient consideration.
duly appointed and authorized
agents and officers.
LEGALITY OF THE OBJECT
-ANOTHER EXCEPTIONSS TO THE -the object is unlawful when it is contrary to law,
GENERAL RULE: morals, good customs, public order or public policy.
a. A corporation may enter into a EFFECT: Contracts is inexistent and void ab
JOINT VENTURE PARTNERSHIP with initio
another where the nature of the
venture is in line with the business -a partnership may be organized for any purpose
authorized by its charter. EXCEPT that it may not engage in an enterprise for
b. Where the partnership which the law requires a specific form of business
agreement provides that the two organization such as banking which only stock
partners will manage the partnership. corporations may undertake.
DISPOSITION OF SHARES interest his interest in the the right to transfer his shares
-the whole interest of a partner -the share of each spouse partnership so as to make the without the prior consent of the
may be disposed of without the cannot be disposed of during transferee a partner without the other stockholders.
consent of the other partners the marriage even with the consent o the all other existing
consent of the other. partners because the
VOLUNTARY ASSOCIATION partnership is based on the
(committees, societies, social clubs, lodges, PRINCIPLE OF DELECTUS
etc)
PERSONAE
JURIDICAL PERSONALITY TERM OF EXISTENCE
-has -has none -for any period of time -may not be formed for a term
PURPOSE stipulated by the parties in excess of 50 YEARS
-always organized for pecuniary -such object is lacking extendible to not more than 50
profit yrs in any one instance.
CONTRIBUTION OF MEMBERS FIRM NAME
-there is contribution of capital, - no contribution of capital but -a LIMITED PARTNERSHIP is -may adopt any firm name
either in money, property or fees are usually collected to required by the law to add the PROVIDED it is not the same as
industry maintain organization word “ltd.” to its name or similar to any registered firm
LIABLITY OF MEMBER name
-the partnership is liable for the -the members are individually DISSOLUTION
debts of the firm. liable for the debts of the -may be dissolved at any time -can only be dissolved with the
association. by the will of any or all of the consent of the State
CORPORATION partners
GOVERNING LAW
MANNER OF CREATION -governed b the CIVIL CODE -governed by the CORPORATION
-created by mere AGREEMENT -created by LAW or by CODE
of the parties operation of law
NUMBER OF INCORPORATORS
-MAY be organized only by TWO -require at least FIVE SIMILARITIES BETWEEN A PARTNERSHIP AND A CORPORATION
PERSONS incorporators (EXCEPT a 1. Juridical personality separate and distinct from that of
corporation sole) the individuals composing it.
COMMENCEMENT OF JURIDICAL PERSONALITY 2. Can act only through agents
-from the moment of the -from the date of issuance of 3. Organization composed of an aggregate individuals
execution of the contract of the certificate of incorporation (EXCEPT corporation sole)
partnership by the SEC 4. (stock corporation) Distributes its profits to those
POWERS who contribute capital to the business
-partnership may exercise ANY -may exercise only powers 5. Can be organized only where there is a law
POWER authorized by the EXPRESSLY GRANTED BY LAW or authorizing its organization
partners provided it is not implied from those grated or 6. A partnership, no matter how created or organized
contrary to law, morals, good incident to its existence. (EXCEPT a general professional partnership) is taxable as a
customs, public order, or public corporation, subject to income tax.
policy.
MANAGEMENT ARTICLE 1770
-when the management is not -the power to do business and
agreed upon, every partner is an manage its affairs is vested in OBJECT OR PURPOSE OF PARTNERSHIP
agent of the partnership the board of directors or 1. The object must be lawful
trustees. 2. The object must be for the common benefit of the
EFFECT OF MISMANAGEMENT members
-a partner CAN SUE a co-partner -the suit against a member of
who mismanages the board of directors or Note:
trustees who mismanages must The illegality of the object will not be presumed. It
be in the name of the must appear to be of the essence of the relationship.
corporation
RIGHT OF SUCCESSION
-has no right -has such right EFFECTS OF UNLAWFUL PARTNERSHIP
EXTENT OF LIABILITY TO THIRD PERSONS 1. Contract is VOID AB INITIO and the partnership never
-the partners (EXCEPT limited -the stockholders are liable only existed in the eyes of the law.
partners) are liable personally to the extent of the shares 2. PROFITS SHALL BE CONFISCATED in favor of the
and subsidiarily (sometimes subscribed by them. government.
solidarily) for partnership debts 3. THE INSTRUMENTS OR TOOLS AND PROCEEDS of the
to third persons. crime shall also be FORFEITED in favor of the government.
TRANSFERABILITY OF INTEREST 4. The CONTRIBUTIONS OF THE PARTNERS shall not be
-a partner CANNOT transfer his -a stockholder has generally has confiscated UNESS they fall under no. 3
AFFECT its liability and that of the Articles or agreements which are kept secret among the
partners to third persons. members, and wherein anyone of them may contract in his
own name with third persons.
-PURPOSE OF REGISTRATION
-the tax liabilities of big IMPORTANCE OF GIVING PUBLICITY TO ARTICLES OF PARTNERSHIP
partnerships cannot be evaded and the -to prevent being victim of fraud and deceit
public can also determine more
accurately their membership and capital Note: A person may be held liable or partnership liability
before dealing with them. may result in favor of third persons by reason of estoppel.
ARTICLE 1773
ARTICLE 1776
REQUIREMENTS WHENEVER IMMOVABLE PROPERTY IS CONTRIBUTED
CLASSIFICATIONS OF PARTNERSHIP
1. The contract must be in a PUBLIC INSTRUMENT
2. An INVENTORY of the property must be made, signed 1. AS TO THE EXTENT OF ITS SUBJECT MATTER
by the parties, and attached to the public instrument. A. UNIVERSAL PARTNERSHIP (1777)
NOTE: failure to comply above will render the -refers to all the present property or to all
partnership VOID. profits.
KINDS:
*If there are formalities specifically provided, 1. Universal partnership of all present
it is absolute and indispensable for the property. (1778)
validity of contract. 2. Universal partnership of profits.
-IF NOT OBSERVED, VOID. (1780)
-in this class of partnership, the partners RETAIN THEIR C. Those formed for the practice of a profession or
OWNERSHIP OVER THEIR PRESENT AND FUTURE PROPERTY. vocation.
What passes to the partnership are the profits or income and
the use or usufruct of the same. BUSINESS OF PARTNERSHIP NEED NOT BE CONTINUING
-example: if A and B agreed that they would
retain the ownership over their respective -Under Article 1767 and 1783, carrying on of a business
properties, only their usufruct being transferred to of a continuing nature is NOT ESSENTIAL to constitute a
partnership, and that they would divide equally the partnership.
net profits. Consequently, upon the dissolution
of the partnership, such property is returned to the -Under American law - the above is not true under the
owners. uniform partnership act which defines partnership as an
“association of two or more persons to carry on as co-owners
-PROFITS ACQUIRED BY THE PARTNERS THROUGH a business for profit.
CHANCE(lottery, etc) ARE NOT INCLUDED.
-FRUITS OF PROPERTY SUBSEQUENTLY ACQUIRED BY THE -JOINT VENTURE - a partnership created for a
PARTNERS DO NOT BELONG TO THE PARTNERSHIP, HOWEVER, limited purpose.
SUCH PROFITS MAY BE INCUDED BY EXPRESS STIPULATION.
-CORPORATION AS A PARTNER- although a
corporation cannot enter into a partnership, it may,
ARTICLE 1781 however, engage in a joint venture with others.
PRESUMPTION
-where the articles of partnership do not specify the
nature of the partnership, whether “present property” or of
profits only, it will be presumed that the parties intended
merely a PARTNERSHIP OF PROFITS.
ARTICLE 1782
ARTICLE 1783
1. FUTURE PARTNERSHIP
- the partners may stipulate OTHER DATE for the CONTINUATION OF A PARTNERSHIP FOR AN INDEFINITE TERM
commencement of the partnership.
The partners may impliedly agree to continue in business
NOTES: until a certain sum of money is earned, or one or more partners
recoup their investment, or until certain debts are paid, or until
*There can be a future partnership certain property could be disposed of on favorable terms.
which at the moment has no juridical existence
yet. *However, the implied agreement MUST BE PROVED.
*In the absence of express stipulation,
evidence is admissible to show the *The mere partnership that the business
commencement date as determined by the would be successful and that the partners would be
words, acts or conduct of the parties. able to recoup their investment is not sufficient to
create a partnership for a term.
*the same CANNOT BE WITHDRAWN OR When the capital or a part thereof which a partner is bound to
DISPOSED OF BY THE CONTRIBUTING PARTNER contribute consists of goods, THEIR APPRAISAL MUST BE MADE in
WITHOUT THE CONSENT OR APPROVAL OF THE the manner prescribed in the contract of partnership, and IN THE
PARTNERSHIP OR OTHER PARTNERS. ABSENCE OF STIPULATION, it shall be made by experts chosen by
the partners, and according to current prices, the subsequent
changes thereof being for account of the partnership. (n)
EFFECT OF FAILURE TO CONTRIBUTE PROPERTY AS PROMISED
*Without the contribution to a common fund, the partnership is APPRAISAL OF GOODS OR PROPERTY CONTRIBUTED
USELESS.
REMEDY: 1. NEED FOR APPRAISAL- NECESSARY to determine how much
-Not rescission but an ACTION FOR has been contributed by the partners.
SPECIFIC PERFORMANCE WITH DAMAGES AND
INTERESTS a) IN THE ABSENCE OF STIPULATION, share
(profit and losses) of each partner is
*Article 1838, however, allows rescission or proportion to what he may have
annulment of partnership contract on the ground contributed.
of fraud or misrepresentation.
2. In case of IMMOVABLE PROPERTY, the appraisal is made in the
LIABILITY OF PARTNER IN CASE OF EVICTION inventory of said property, OTHERWISE, it may be made as
provided in Art. 1787.
This obligation of warranty in case of eviction is in
consequence of the character of the contract of partnership
which is an onerous contract.
b MERE FAILURE ON THE PART OF THE INDUSTRIAL OBLIGATION OF CAPITALIST PARTNER TO CONTIBUTE ADDITIONAL
PARTNER TO LIQUIDATE PARTNERSHIP AFFAIRS AND CAPITAL
TO ACCOUNT TO PERSONS INTERESTED THE
AMOUNTS RESPECTIVELY DUE THEM. -RULE: A capitalist partner is NOT BOUND
-REQUISITES FOR APPLICATION OF RULE:
1. imminent loss of the business
ARTICLE 1789 2. majority of the capitalist partners are of the
opinion that an add’tl contribution to the common
fund would save the business.
An industrial partner CANNOT engage in business for himself, 3. The capitalist refuses deliberately
unless the partnership expressly permits him to do so; and if he 4. there is no agreement that even in case of an
should do so, the capitalist partners may either EXCLUDE him imminent loss of the business the partners are not
from the firm or AVAIL THEMESELVES OF THE BENEFITS which he obliged to contribute.
may have obtained in violation of this provision, with a right to
damages in either case. (n) *the INDUSTRIAL PARTNER IS EXEMPTED, having contributed
his entire industry, he can do nothing further.
*An action for specific performance to compel the partner *the refusal of the partner to contribute his additional share
to perform the promised work or service is not available as reflects his lack of interest in the continuance of the
partnership.
If a partner authorized to manage collects a demandable sum which Every partner is responsible to the partnership for damages
was owed to him in his own name, from a person who owed the suffered by it through his fault, and he cannot compensate them
partnership another sum also demandable, the sum thus collected with the profits and benefits which he may have earned for the
partnership by his industry. However, the courts may equitably
shall be applied to the two credits in proportion to their amounts, lessen this responsibility if through the partner's extraordinary
even though he may have given a receipt for his own credit only; efforts in other activities of the partnership, unusual profits have
but should he have given it for the account of the partnership been realized. (1686a)
credit, the amount shall be fully applied to the latter.
OBLIGATION OF PARTNER FOR DAMAGES TO PARTNERSHIP
The provisions of this article are understood to be without prejudice
to the right granted to the other debtor by article 1252, but only -GENERAL RULE: The damages caused by a partner CANNOT
BE OFFSET by the profits or benefits which
if the personal credit of the partner should be more onerous to him. he may have earned for the partnership by
(1684) his industry.
-EXCEPTIONS: the court may equitably mitigate or lessen his
liability for damages if unusual profits are
REQUISITES FOR APPLICATION OF RULE realized through the extraordinary efforts
of the partner at fault.
1. There exist at least 2 DEBTS, one where the collecting
partner is creditor, and the other, where the partnership is
the creditor. ARTICLE 1795
2. Both debts are DEMANDABLE
3. The partner who collect is AUTHORIZED to manage and
actually manages the partnership The risk of specific and determinate things, which are NOT
FUNGIBLE, contributed to the partnership so that ONLY THEIR USE
NOTE: the debtor is given the right to AND FRUITS MAY BE FOR THE COMMON BENEFITS, SHALL BE BORNE
prefer payment of the credit of the partner BY A PARTNER WHO OWNS THEM.
if it should be more onerous to him in
accordance with his right to application of
payment. If the things contribute are FUNGIBLE, or CANNOTE BE KEPT
WITHOUT DETERIORATING, or if they were CONSTRIBUTED TO BE
SOLD the risk shall be BORNE BY THE PARTNESHIP. In the absence
ARTICLE 1793 of stipulation, the risk of the THINGS BROUGHT AND APPRAISED IN
THE INVENTORY, shall also be BORNE BY THE PARTNERSHIP, and in
A partner who has received, in whole or in part, his share of a
partnership credit, when the other partners have not collected such case the claim shall be limited to the value at which they were
theirs, SHALL BE OBLIGED, if the debtor should thereafter become appraised. (1687)
insolvent, TO BRING THE PARTNERSHIP CAPITAL WHAT HE
RECEIVED, even though he may have given receipt for his share
only. (1685a) RISK OF LOSS OF THINGS CONTRIBUTED
NOTE:
-IN THE ABSENCE OF AN AGREEMENT TO THE ARTICLE 1798
COMNTRARY, no partner is entitled to
compensation for his services to the partnership
without the consent of all the partners UNLESS it If the partners have agreed to intrust to a third person the
can be implied from the circumstances that the designation of the share of each one in the profits and losses,
parties intended a partner to receive additional such designation may be impugned only when it is manifestly
compensation where the partner’s work was inequitable. In no case may a partner who has begun to execute
beyond normal partnership functions.
the decision of the third person, or who has not impugned the
same within a period of three months from the time he had
knowledge thereof, complain of such decision.
ARTICLE 1797
The designation of losses and profits cannot be intrusted to one
The LOSSES AND PROFITS shall be distributed in conformity with the of the partners. (1690)
agreement. If only the share of each partner in the profits has been
agreed upon, the share of each in the losses shall be in the same
DELEGATION OF THE SHARE AND PROFITS TO A THIRD PERSON
proportion.
-It may be delegated by COMMON CONSENT
In the absence of stipulation, the share of each partner in the
profits and losses shall be in proportion to what he may have NOTES:
contributed, but the industrial partner shall not be liable for the *the designation by the third person
would generally be binding UNLESS manifestly
losses. As for the profits, the industrial partner shall receive such inequitable
share as may be just and equitable under the circumstances. If
besides his services he has contributed capital, he shall also receive *the reason behind the comparatively
short period of 3 mos. Within which to
a share in the profits in proportion to his capital. (1689a)
impugn the designation is to forestall any
paralyzation in the operations of the
partnership.
RULES FOR DISTRIBUTION OF PROFITS AND LOSSES
PROFITS:
*where the parties expressly stipulate that there If two or more partners have been intrusted with the management
shall be no liability for losses, or where from the nature of of the partnership without specification of their respective duties,
the contract, it is clear that the party did not intend to or without a stipulation that one of them shall not act without the
share in the losses, such fact may be a factor in determining consent of all the others, EACH ONE MAY SEPARATELY EXECUTE
that no partnership exists. ALL ACTS OF ADMINISTRATION, but if any of them should oppose
the acts of the others, the decision of the majority shall prevail. IN
*where the one excluded from any share in the CASE OF TIE, the matter shall be decided by the partners owning
profits or losses is not intended by the parties to become a the controlling interest. (1693a)
partner, the stipulation is valid.
REQUISITES FOR APPLICATION OF RULE
*with reference to the industrial partner, since
the law itself excludes him from losses, a stipulation a. TWO OR MORE PARTNERS have been appointed as
exempting him from the losses is naturally valid as an managers
exception to the general rule in Article 1799. b. There is NO SPECIFICATION of their respective duties
c. There is NO STIPULATION that one of them shall not
*the stipulation does not mean that partners act without the consent of all the others.
cannot stipulate for unequal shares in the profits or losses
even if their respective contributions are equal UNLESS the
inequality is so gross that it is a simulated form or attempt ARTICLE 1802
to exclude a partner from any share in the profits or losses.
A power granted after the partnership has been constituted may When the MANNER OF MANAGEMENT has not been agreed upon,
be revoked at any time. (1692a) the following rules shall be observed:
NOTES:
*the prohibition applies only to immovable property ARTICLE 1806
because of the greater importance of this kind as
compare to movable and the alteration thereof must be
important. Partners shall render on demand TRUE AND FULL INFORMATION
OF ALL THINGS affecting the partnership to any partner or the
*if the refusal to give consent by the other partners is legal representative of any deceased partner or of any partner
manifestly prejudicial to the interest of the partnership, under legal disability. (n)
the intervention by the court may be sought for
authority to make the necessary alteration.
*if the alteration is necessary for the preservation of the *Not only is a partner bound to give information
property, it would seem that the consent of the other on demand but in certain circumstances, he is under the
partners is not required. duty of VOLUNTARY DISCLOSURE of material facts within
the knowledge relating to or affecting partnership affairs.
ARTICLE 1804
ARTICLE 1807
Every partner MAY ASSOCIATE another person with him in his
share, but the ASSOCIATE SHALLNOT BE ADMITTED into the EVERY PARTNER MUST ACCOUNT TO THE PARTNERSHIP FOR ANY
partnership WITHOUT THE CONSENT OF ALL THE OTHER BENEFIT, and hold as trustee for it any profits derived by him
PARTNERS, even if the partner having an associate should be a without the consent of the other partners from any transaction
manager.
connected with the formation, conduct, or liquidation of the
CONTRACT OF SUBPARTNERSHIP partnership or from any use by him of its property. (n)
*the law DOES NOT PROHIBIT a partner from (2) His interest in the partnership; and
engaging in enterprises in his own behalf during the period
that he is a member of the firm BUT PERMITS HIM to carry (3) His right to participate in the management (n)
on business activity NOT CONNECTED OR COMPETING WITH
THAT OF THE PARTNERSHIP, so long as the partnership
agreement does not prohibit such activity. RELATED RIGHTS (other right which are related above)
c. For the same reason the property belongs to the EFFECT OF ASSIGNMENT OF PARTNER’S WHOLE INTERST IN
partnership, the partners cannot claim any right under PARTNERSHIP
the homestead or exemption laws when it is attached
for partnership debts. This article permits the conveyance by a partner of his whole
d. The right of the partners to specific partnership interest in the partnership without causing dissolution.
property is NOT SUBJECT to legal support under article However, such assignment does not grant the assignee the
195, F.C. right:
SURPLUS- refers to the assets of the partnership after REMEDY OF OTHER PARTNERS
partnership debts and liabilities are paid and
settled and the rights of the partners among 1. [ Dissolution of partnership not intended ]
themselves are adjusted.
-if the assigning partner neglects his
NOTES: partnership duties after assignment, the other
*on the dissolution of the partnership, the partners may dissolve the partnership under article
value of a partner’s share usually cannot be 1830(1,c)
accurately determined until liquidation of
the business have taken place and 2. [ Dissolution of partnership intended ]
partnership accounts have been settled.
-partner’s conveyance of his interest in the
partnership.
A conveyance by a partner of his WHOLE INTEREST in the 1. To receive in accordance with his contracts the
partnership DOES NOT OF ITSLEF DISSOLVE THE PARTNERSHIP, profits accruing to the assigning partner
2. To avail himself of the usual remedies provided by
or, as against the other partners in the absence of agreement, law in the event of fraud in the management
entitle the assignee, during the continuance of the partnership, to 3. To receive the assignor’s interest in case of
interfere in the management or administration of the partnership dissolution
business or affairs, or to require any information or account of 4. To require an account of partnership affairs, but only
in case the partnership is dissolved, and such
partnership transactions, or to inspect the partnership books; but account shall cover the period from the date only of
it merely entitles the assignee to receive in accordance with his the last account agreed to by all the partners.
contract the profits to which the assigning partner would
otherwise be entitled. HOWEVER, IN CASE OF FRAUD in the
management of the partnership, THE ASSIGNEE MAY AVAIL
HIMSELF OF THE USUAL REMEDIES. ARTICLE 1814
In case of a dissolution of the partnership, the assignee is entitled Without prejudice to the preferred rights of partnership creditors
to receive his assignor's interest and may require an account under article 1827, on due application to a competent court by
from the date only of the last account agreed to by all the any judgment creditor of a partner, the court which entered the
partners. (n) judgment, or any other court, MAY CHARGE THE INTEREST OF
THE DEBTOR PARTNER WITH PAYMENT OF THE UNSATISFIED
AMOUNT OF SUCH JUDGMENT DEBT WITH INTEREST THERON; and
may then or later APPOINT A RECEIVER OF HIS SHARE OF THE dependent on the amount of the unsatisfied
judgment debt.
PROFITS, and of ANY OTHER MONEY DUE or to fall due to him in
respect of the partnership, and make all other orders, directions, *the redeeming non-debtor partner DOES
accounts and inquiries which the debtor partner might have NOT ACQUIRE absolute ownership over the
made, or which the circumstances of the case may require. debtor’s partner’s interest BUT HOLDS IN
TRUST FOR HIM CONSISTENT WITH PRINCIPLES
OF FIDUCIARY RELATIONSHIP.
The INTWEREST CHARGED MAY BE REDEEMED at any time before
foreclosure, or in case of a sale being directed by the court, may
be purchased without thereby causing a dissolution: RIGHT OF PARTNER UNDER EXEMPTION LAWS
-The partner may avail himself of the exemption laws after
partnership debts have been paid.
(1) With separate property, by any one or more of the partners;
or
NOTES:
*the value of the partner’s interest in the
partnership has no bearing on the redemption
price which is likely to be lower since it will be
NOTE:
NOTE: -In the absence of an agreement to the
- A stipulation among the partners CONTRARY TO contrary, all partners have equal rights in the
PRO RATA and SUBSIDIARY LIABILITY is void and of management and conduct of the partnership
no effect insofar as it affects the rights of THIRD business.
PERSONS.
- Such is valid and enforceable only as among the
partners.
LIABILITY OF PARTNERSHIP FOR ACTS OF PARTNERS
paragraph.
Except when authorized by the other partners or unless they 3. ACTS IN CONTRAVENTION OF A RESTRICTION ON
have abandoned the business, one or more but less than all the AUTHORITY (par. 4)
partners have no authority to:
-the partnership is NOT LIABLE TO THIRD PERSONS
(1) Assign the partnership property in trust for creditors or on having actual or presumptive knowledge of the
restrictions, whether or not the acts are for
the assignee's promise to pay the debts of the partnership; apparently carrying on in the usual way the business
of the partnership.
(2) Dispose of the good-will of the business;
(3) Do any other act which would make it impossible to carry on LIABILITY OF PARTNER ACTING WITHOUT AUTHORITY
the ordinary business of a partnership;
- As a general rule, the particular partner who undertakes to
bind his co-partner by a contact without authority is
(4) Confess a judgment; himself personally liable o such contract. Such partner
binds himself no matter in what name he contracts.
(5) Enter into a compromise concerning a partnership claim or
liability;
ARTICLE 1819
(6) Submit a partnership claim or liability to arbitration;
Where title to real property is in the partnership name, ANY
(7) Renounce a claim of the partnership. PARTNER MAY CONVEY TITLE TO SUCH PROPERTY BY A
CONVEYANCE EXECUTED IN THE PARTNERSHIP NAME; but the
partnership may recover such property UNLESS the partner's act NOTE:
binds the partnership under the provisions of the first paragraph of - Pars. 1,3,5, what is conveyed is TITLE
article 1818, or UNLESS such property has been conveyed by the or OWNERSHIP
grantee or a person claiming through such grantee to a holder for - Pars. 2,4, what is coveyed is merely the
value without knowledge that the partner, in making the EQUITABLE INTEREST.
conveyance, has exceeded his authority.
- The term “conveyance” used in the
Where title to real property is in the name of the partnership, a last paragraph includes mortgage.
conveyance executed by a partner, in his own name, passes the
EQUITABLE INTEREST of the partnership, PROVIDED the act is one
within the authority of the partner under the provisions of the first INNOCENT PURCHASERS WITHOUT NOTICE
paragraph of article 1818. - Where the legal title is in the partner making the
conveyance, although the equitable title is in the firm, a
Where title to real property is in the name of one or more but not purchaser without notice MAY ACQUIRE A VALID TITLE
all the partners, and the record does not disclose the right of the since he has the right to presume that possession or
partnership, THE PARTNERS IN WHOSE NAME THE TITLE STANDS interest of the partnership is subordinate to and not
MAY CONVEY TITLE TO SUCH PROPERTY, but the partnership may inconsistent with the record title.
recover such property if the partners' act does not bind the
partnership under the provisions of the first paragraph of article NOTE:
1818, UNLESS the purchaser or his assignee, is a holder for value, -A conveyance by partner of
without knowledge. PARTNERSHIP PROPERTY IN THE
PARTNERSHIP NAME EVEN THOUGH WITHOUT
Where the title to real property is in the name of one or more or all AUTHORITY, CANNOT BE RECOVERED BY THE
the partners, or in a third person in trust for the partnership, A PARTNERSHIP where it has been conveyed by
CONVEYANCE EXECUTED BY A PARTNER IN THE PARTNERSHIP the grantee to a holder for value and without
NAME, OR IN HIS OWN NAME, PASSES THE EQUITABLE INTEREST OF notice or knowledge that the partner, in
THE PARTNERSHIP, provided the act is one within the authority of making the conveyance, had exceeded his
the partner under the provisions of the first paragraph of article authority.
1818.
- The purchaser NEED NOT HAVE either actual or constructive
Where the TITLE to real property is in the name of all the partners notice of any trust or other condition limiting the
A CONVEYANCE EXECUTED BY ALL THE PARTNERS PASSES ALL authority of the partner making the conveyance.
THEIR RIGHTS IN SUCH PROPERTY. (n)
- The PRESUMPTION is that, property purchased with An ADMISSION OR REPRESENTATION made by any partner
partnership funds belongs to the partnership UNLESS a
contrary intent is shown. concerning partnership affairs within the scope of his authority in
accordance with this Title is evidence against the partnership.
(n)
LEGAL EFFECTS OF CONVEYANCE OF REAL PROPERTY BELONGING
TO THE PARTNERSHIP
- GENERAL RULE: A person is NOT BOUND by the act,
- it depends in whose name it is registered and in whose admission, statement, or agreement of
name it is conveyed. another of which he has no knowledge or
to which he has not given his consent.
- EXCEPTIONS: By virtue of a particular relation between
THE REAL PROPERTY MAY BE REGISTERED OR OWNED IN THE them.
NAME OF:
a. The Partnership (par. 1&2) § Admissions by a PARTY as testified to
b. One or more but not all the partners (par. 3) by a third person are admissible in
c. One or more or all the partners, or in a third person in evidence against him in litigation.
trust for the partnership (par. 4)
d. All the partners (par.5)
Source: ATP by De Leon | CARRASCO 24
DIFFERENT FROM LIABILITY UNDER ARTICLE 1816 MISAPPLICATION OF MONEY OR PROPERTY OF A THIRD PERSON
ARTICLE 1816 ARTICLES 1822, 1823, - the PARTNERSHIP is liable for any LOSSES SUFFERED BY A
1824 THIRD PERSON whose money or property is
- JOINT LIABILITY - SOLIDARY LIABILITY misappropriated by a partner who received it within the
- The liability here - Covers the liability scope of his authority or by any other partner after it was
refers to of the partnership received by the partnership in the ordinary course of
PARTNERSHIP arising from the business while in its custody.
OBLIGATIONS wrongful acts or
omissions of ANY
PARTNER.
ARTICLE 1825
Note: the act or omission
is called “quasi-delict” or When a PERSON, by words spoken or written or by conduct,
“tort” when it does not
constitute a crime or REPRESENTS HIMSELF, OR CONSENTS TO ANOTHER
felony punishable by law. REPRESENTING HIM TO ANYONE, AS A PARTNER IN AN EXISTING
PARTNERSHIP or with one or more persons not actual partners,
HE IS LIABLE TO ANY SUCH PERSONS TO WHOM SUCH
NOTE:
REPRESENTATION HAS BEEN MADE, who has, on the faith of such
- Since the partners are liable
solidarily, THE PARTY representation, given credit to the actual or apparent partnership,
AGGRIEVED HAS HIS ELECTION AND IF HE HAS MADE SUCH REPRESENTATION OR CONSENTED TO
to sue the firm or to sue one or ITS BEING MADE IN A PUBLIC MANNER he is liable to such person,
more of its members.
whether the representation has or has not been made or
- He may even single
out for suit s partner, communicated to such person so giving credit by or with the
who, personally was knowledge of the apparent partner making the representation or
in no wise involved. consenting to its being made:
RIGHTS OF EXISTING AND SUBSEQUENT CREDITORS - The rule applies only in the event of the DISPOSITION OF
- Existing and subsequent creditors have EQUAL RIGHTS as PARTNERSHIP PROPERTY among its creditors to pay
against partnership property and separate property of the partnership debts. The partners may deal with partnership
previously existing members of the partnership WHILE property in the usual course of business as they see fit.
ONLY SUBSEQUENT CREDSITORS HAVE RIGHTS AGAINST § Both the partnership and the separate
THE SEPARATE ESTATE OF THE NEWLY ADMITTED partners thereof may be joined in the
PARTNER. same action.
• BUT THE PRIVATE PROPERTY
of the partners CANNOT be
Q: Suppose, an incoming partner has assumed the taken in payment of
obligation of the RETIRING PARTNER as one of the terms partnership debts UNTIL the
of the contract by which he is admitted into the firm, IS common property of the
HE LIABLE DIRECTLY TO THE OLD PARTNERSHIP concern is exhausted.
CREDITORS SUCH THAT THE LATTER HAS A RIGHT OF
ACTIONS AGAINST THE INCOMING PARTNERS?
A: YES. [this situation is governed by Article 1311 (par. 2) REMEDY OF PRIVATE CREDITORS OF A PARTNER
of the NCC.
- The creditors of each partner may ask for the ATTACHMENT
REASONS FOR RULE MAKING THE NEW PARTNER LIABLE AND PUBLCI SALE OF THE SHARE of the latter in the
partnership assets.
- It cannot be considered harsh because the new partner NOTE:
partakes of the benefits of he partnership property and an
established business. He has every means of obtaining full - The purchaser at the public sale does
knowledge of the debts of the partnership and protecting not become a partner.
himself because he may insist on the liquidation or
settlement of existing partnership debts.
ARTICLE 1827
The provisions were adopted with suitable modifications - When a partnership ends, it involves three separate stages:
from the Uniform Partnership Act. It was considered advisable to do DISSOLUTION; WINDING UP; and TERMINATION.
so because these provisions are ample and comprehensive on the
subject, while the lone provision of the present Civil that the
partition among the partners shall be governed by the rules for the DISSOLUTION- change in the relation of the partners caused
partition of inheritances, with regard to its form as well as the by any partner ceasing to be associated in the
obligations arising therefrom, is deemed unsatisfactory there being carrying on of the business.
no similarity between a partnership and an inheritance. • Anytime a partners leaves the business,
the partnership is dissolved.
ARTICLE 1828 WINDING UP- the actual process of settling the business or
partnership affairs after dissolution
The DISSOLUTION OF A PARTNERSHIP is the change in the relation
of the partners caused by any partner ceasing to be associated in [Involves the collection and distribution of
partnership assets, payment of debts, and
the carrying on as distinguished from the winding up of the determination of the value of each partner’s
business. (n) interest in the partnership.]
(c) By the express will of all the partners who have not - In Article 1840, AUTOMATIC DISSOLUTION also
takes place when a new partner is admitted or
assigned their interests or suffered them to be charged for when a partner retires, withdraws, or is expelled
their separate debts, either before or after the termination of from the partnership.
any specified term or particular undertaking;
- There is NO AUTOMATIC DISSOLUTION under
(d) By the expulsion of any partner from the business bona
Article 1831 which enumerates the grounds for
the judicial dissolution of the partnership.
fide in accordance with such a power conferred by the
agreement between the partners; - It has been held that the statutory enumeration
of the causes of dissolution PRECLUDES
(2) In contravention of the agreement between the partners, DISSOLUTION FOR ANY OTHER CAUSE.
where the circumstances do not permit a dissolution under any
- Once a partnership is dissolved, the same
other provision of this article, by the express will of any partner partners may form a new partnership to continue
at any time; the business under the same terms.
(3) By any event which makes it unlawful for the business of the
partnership to be carried on or for the members to carry it on in - EFFECT OF SALE OR ASSIGNMENT BY ONE PARTNER OF
HIS ENTIRE INTEREST IN THE PARTNERSHIP TO A THRID
partnership;
PERSON
o The dissolution created in this case is only
(4) When a specific thing, a partner had promised to contribute TECHNICAL, and not actual only in the sense
to the partnership, perishes before the delivery; in any case by that his connection with the partnership is
the loss of the thing, when the partner who contributed it having terminated.
reserved the ownership thereof, has only transferred to the
partnership the use or enjoyment of the same; but the
partnership shall not be dissolved by the loss of the thing when it DISSOLUTION WITHOUT VIOLATION OF PARTNERSHIP AGREEMENT
occurs after the partnership has acquired the ownership thereof;
FOUR WAYS:
(5) By the death of any partner; 1. TERMINATION OF THE DEFINITE TERM OR
PARTICULAR UNDERTAKING
(6) By the insolvency of any partner or of the partnership; - After the expiration of the term or
particular undertaking, the partnership is
automatically dissolved without the partners
(7) By the civil interdiction of any partner;
extending the said term or continuing the
undertaking.
(8) By decree of court under the following article. (1700a and - If after said expiration the partners continue
1701a) the partnership without making a new agreement,
the firm becomes a PARTNERSHIP AT WILL.
DISSOLUTION IN CONTRAVENTION OF PARTNERSHIP AGREEMENT 3. LOSS, WHERE ONLY USE OR ENJOYMENT CONTRIBUTED –
the loss of the same before or after delivery dissolves
the partnership because the partner cannot fulfill his
- Any partner may cause the dissolution of the partnership undertaking to make available the use of the specific
at ANY TIME WITHOUT THE CONSENT OF HIS thing contributed.
CO-PARTNERS for any reason which he deems sufficient
by expressly withdrawing therefrom even though the § Here, the partner bears the loss and he
partnership was entered into for a definite term or is considered in default with respect to
particular undertaking. his contribution.
§ Upon dissolution, the partners may - One who is without capacity to manage his own property
demand for an accounting and SHOULD NOT BE LLOWED to manage partnership
liquidation. property.
DEATH OF ANY PARTNER
NOTES:
- The deceased partner ceases to be associated in the - In the absence of an express agreement to that
carrying of the business; hence, the ipso facto dissolution effect, THERE EXISTS NO RIGHT OR POWER OF ANY
of the partnership by his death by operation of law. MEMBER, OR EVEN A MAJORITY OF THE MEMBERS, to
- The surviving partners HAVE NO AUTHORITY TO expel all other members of the firm at will. Nor can
CONTINUE THE BUSINESS EXCEPT SO FAR AS IS they at will forfeit the share or interest of a member
NECESSARY TO WIND UP EXCEPT AS PROVIDED IN ARTICLE or members and compel him or them to quit the firm,
1833. even paying what is due him.
- The insolvency MUST BE ADJJUDGED BY A COURT. (2) A PARTNER BECOMES IN ANY OTHER WAY INCAPABLE of
1. BY THE INSOLVENCY OF A PARTNER, his credit is impaired. performing his part of the partnership contract;
AN INSOLCENT PARTNER HAS NO AUTHORITY TO ACT FOR
THE PARTNERSHIP OR THE OTHER PSRTNERS TO ACT FOR (3) A partner has been GUILTY OF SUCH CONDUCT AS
HIM. TENDS TO AFFECT PREJUDICIALLY THE CARRYING ON OF
THE BUSINESS;
2. THE INSOLVENCY OF THE PARTNERSHIP renders its property
in the hands of the partners liable for the satisfaction of
partnership obligations resulting in their inability to continue (4) A partner WILLFULLY OR PERSISTENTLY COMMITS A
the business, which practically amounts to a dissolution. BREACH OF THE PARTNERSHIP AGREEMENT, or otherwise so
conducts himself in matters relating to the partnership
CIVIL INTERDICTION OF ANY PARTNER business that it is not reasonably practicable to carry on the
business in partnership with him;
- A person under civil interdiction (or civil death) cannot
validly give consent, as his capacity to act is limited (5) The business of the partnership can only be carried on
thereby.
(a) When the dissolution is not by the act, insolvency or WHEN A PARTNER HAS KNOWLEDGE OR NOTICE OF A FACT
death of a partner; or
- UNIFORM PARTNERSHIP ACT:
1. A person has knowledge of a fact not only when
(b) When the dissolution is by such act, insolvency or death he has actual knowledge thereof, but also when he
of a partner, in cases where Article 1833 so requires; has knowledge of such other facts as in
circumstances show bad faith.
(2) With respect to persons not partners, as declared in article
2. “A person has notice of a fact when the person
1834. (n)
who claims the benefit of the notice:
a. States the fact to such person, or
b. Delivers through the mail or by other
means of communication, a written
EFFECT OF DISSOLUTION ON AUTHORITY OF PARTNER statement of the fact to such person or to a
proper person at his place of business or
GENERAL RULE: residence.
- Unless otherwise stipulated, Every partner is
considered the agent of the partnership with
authority to bind the partnership as well as the
other partners with respect to the transaction ARTICLE 1834
of its business.
AFTER DISSOLUTION, a partner can bind the partnership, EXCEPT
QUALIFICATIONS TO THAT RULE: as provided in the third paragraph of this article:
- qualifications set forth in Articles 1833 and
1834 in relation to Article 1832.
(1) By an act appropriate for winding up partnership affairs
or completing transactions unfinished at dissolution;
ARTICLE 1833
(2) By any transaction which would bind the partnership if
Where the dissolution is caused by the ACT, DEATH OR dissolution had not taken place, provided the other party to
INSOLVENCY OF A PARTNER, each partner is liable to his the transaction:
co-partners for his share of any liability created by any partner
acting for the partnership as if the partnership had not been (a) Had extended credit to the partnership prior to
dissolved UNLESS: dissolution and had no knowledge or notice of the dis-
solution; or
(1) The dissolution being by act of any partner, the partner
acting for the partnership had knowledge of the dissolution; (b) Though he had not so extended credit, had
or nevertheless known of the partnership prior to
dissolution, and having no knowledge or notice of
(2) The dissolution being by the death or insolvency of a dissolution, the fact of dissolution had not been
partner, the partner acting for the partnership had knowledge advertised in a newspaper of general circulation in the
or notice of the death or insolvency. place (or in each place if more than one) at which the
partnership was regularly carried on.
NOTE: The liability of a partner under the first paragraph, No. 2, shall be
- The rule in No. 1 is designed to protect the
remaining partner or partners who might continue to satisfied out of partnership assets alone when such partner had
act for the partnership as a going concern, not been prior to dissolution:
having actual knowledge of the dissolution.
(1) Unknown as a partner to the person with whom the NOTICE OF DISSOLUTION TO CREDITORS
contract is made; and
- Persons who extended credit to the partnership prior to
its dissolution MUST HAVE KNOWLEDGE OR NOTICE OF
(2) So far unknown and inactive in partnership affairs that THE DISSOLUTION to relieve the partnership from liability.
the business reputation of the partnership could not be said
to have been in any degree due to his connection with it. NOTE:
- As to persons who had not so extended
credit prior to its dissolution, but who had
The partnership is in no case bound by any act of a partner after known of its existence, the fact that the
dissolution: dissolution had been published in the
newspaper would be sufficient EVEN IF THEY
(1) Where the partnership is dissolved because it is unlawful DID NOT ACTUALLY READ THE
ADVERTISEMENT.
to carry on the business, unless the act is appropriate for
winding up partnership affairs; or NOTES:
- Notice of dissolution is UNNECESSARY, EXCEPT in case no.
(2) Where the partner has become insolvent; or 3, where that partner has NO AUTHORITY TO WIND UP
PARTNERSHIP AFFAIRS.
(3) Where the partner had no authority to wind up
partnership affairs, except by a transaction with one who — - As to insolvency, the law makes a distinction between the
right of a partner who has no knowledge or notice of the
other partner’s insolvency to bind the partnership and the
(a) Had extended credit to the partnership prior to right of a third person to claim that his contract with the
dissolution and had no knowledge or notice of his partnership is valid, notwithstanding its dissolution
want of authority; or through insolvency of the partner with whom the contract
was made.
§ The former is recognized under Article
(b) Had not extended credit to the partnership prior 1833 (2) while; the latter is denied
to dissolution, and, having no knowledge or notice of under Article 1834 (par. 3, No. 2).
his want of authority, the fact of his want of
authority has not been advertised in the manner
provided for advertising the fact of dissolution in the CHARACTER OF NOTICE REQUIRED
first paragraph, No. 2(b).
- It varies in accordance with the class of persons required
NOTHING IN THIS ARTICLE SHALL AFFECT THE LIABILITY UNDER to be notified.
ARTICLE 1825 of any person who after dissolution represents
1. AS TO PRIOR DEALERS - Notice must be ACTUAL.
himself or consents to another representing him as a partner in a
partnership engaged in carrying on business. (n) NOTE:
- it was held that a prior dealer
entitled as such to actual notice, may
- Upon the dissolution of the partnership, as between not be said as a matter of law to
themselves, the power of one partner to act and bind the have received notice by reason
others is effectively terminated. (Arts. 1832, 1833.) But merely of the fact that the retirement
the authority of a partner may apparently continue as was mentioned in a newspaper to
regards third persons on the assumption that the which the prior dealer subscribed, or
partnership is still existing. although the fact of dissolution was
mentioned editorially in the local
- The measure of the right of third persons who continue to newspaper.
deal with a dissolved partnership depends upon the
question of whether they knew or should have known of - PRIOR / FORMER DEALER - is one
the fact of dissolution. who has extended credit on the faith
of the partnership, through
o If they did, the validity of their transactions is confidence in the solvency and
governed by the question whether those probity of the firm.
transactions were necessary to liquidate the
partnership affairs. 2. AS TO ALL OTHERS - Notice is accomplished by
an advertisement in a local newspaper. Actual
notification is not necessary.
The individual property of a deceased partner shall be liable for all PERSONS AUTHORIZED TO WIND UP
obligations of the partnership incurred while he was a partner, but (a) The PARTNERS designated by the agreement;
subject to the prior payment of his separate debts. (n) (b) In the absence of such agreement,
- ALL THE PARTNERS WHO HAVE NOT WRONGFULLY
DISSOLVED THE PARTNERSHIP; or
(c) THE LEGAL REPRESENTATIVE (executor or administrator)
EFFECT OF DISSOLUTION ON PARTNER’S EXISTING LIABILITY OF THE LAST SURVIVING PARTNER (when all the
partners are already dead), not insolvent.
- A PARTNER MAY BE RELIEVED from all existing liabilities
upon dissolution ONLY BY AN AGREEMENT TO THAT NOTES:
EFFECT between himself, the partnership creditor, and the - THE COURT may, in its discretion, after considering all
other partners. the facts and circumstances of the particular case,
§ The CONSENT, however, of the creditor appoint a receiver to wind up the partnership affairs
and the other partners to the novation where such step is shown to be to the best interests of
may be implied from their conduct. all persons concerned.
- INSOLVENT PARTNER does not have the right to wind IN CASH ONLY THE NET AMOUNT DUE HIM FROM THE
up partnership affairs.
PARTNERSHIP.
- When a member of a partnership dies, the DUTY OF
LIQUIDATING ITS AFFAIRS DEVOLVES UPON THE When DISSOLUTION IS CAUSED IN CONTRAVENTION OF THE
SURVIVING MEMBER OR MEMBERS OF THE FIRM, not upon PARTNERSHIP AGREEMENT, the rights of the partners shall be as
the legal representative of the deceased partner follows:
(EXCEPT when such partner was the last surviving
partner).
- even in the absence of agreement, the (1) Each partner who has not caused dissolution wrongfully shall
surviving partner or liquidating partner is have:
entitled to REASONABLE COMPENSATION in
exceptional situations as where the services (a) All the rights specified in the first paragraph of this
rendered are extraordinary or substantial in
nature. article, and
(b) The right, as against each partner who has caused the
POWERS OF LIQUIDATING PARTNER dissolution wrongfully, to damages for breach of the
1. MAKE NEW CONTRACTS agreement.
- a liquidating partner is sole agent of the
partnership, but merely for that one specific purpose. (2) The partners who have not caused the dissolution wrongfully,
THUS, without express authorization, HE CANNOT MAKE if they all desire to continue the business in the same name either
NEW CONTRACTS OR CREATE NEW LIABILITIES, nor CAN
HE EXTEND THE TIME FOR THE PAYMENT OF EXISTING by themselves or jointly with others, may do so, during the
OBLIGATIONS TO THE FIRM, or MAKE agreed term for the partnership and for that purpose may
ACKNOWLEDGMENTS OF THE VALIDITY OF CLAIMS possess the partnership property, provided they secure the
AGAINST THE FIRM. payment by bond approved by the court, or pay to any partner
2. RAISE MONEY TO PAY PARTNERSHIP DEBTS who has caused the dissolution wrongfully, the value of his
- he may bind the partnership by borrowing interest in the partnership at the dissolution, less any damages
money to meet its accruing liabilities, and may sell its recoverable under the second paragraph, No. 1(b) of this article,
real estate to raise money to pay its debts. and in like manner indemnify him against all present or future
3. INCUR OBLIGATIONS TO COMPELTE EXISTING partnership liabilities.
CONTRACTS OR PRESERVE PARTNERSHIP ASSETS
(3) A partner who has caused the dissolution wrongfully shall
4. INCUR EXPENSES NECESSARY IN THE CONDUCT OF have:
LITIGATION
- Where a liquidating partner is confronted
with the necessity of litigation, he has power to employ (a) If the business is not continued under the provisions of
an attorney, with resultant obligations, to prosecute and the second paragraph, No. 2, all the rights of a partner
defend the action or to incur other expenses necessary under the first paragraph, subject to liability for damages in
in the conduct of such litigation.
the second paragraph, No. 1(b), of this article.
ARTICLE 1837 (b) If the business is continued under the second paragraph,
No. 2, of this article, the right as against his co-partners
WHEN DISSOLUTION IS CAUSED IN ANY WAY, except in and all claiming through them in respect of their interests in
contravention of the partnership agreement, EACH PARTNER, AS the partnership, to have the value of his interest in the
AGAINST HIS CO-PARTNERS AND ALL PERSONS CLAIMING partnership, less any damage caused to his co-partners by
THROUGH THEM IN RESPECT OF THEIR INTERESTS IN THE the dissolution, ascertained and paid to him in cash, or the
PARTNERSHIP, unless otherwise agreed, MAY HAVE THE payment secured by a bond approved by the court and to
PARTNERSHIP PROPERTY APPLIED TO DISCHARGE ITS LIABILITIES, be released from all existing liabilities of the partnership; but
AND THE SURPLUS APPLIED TO PAY IN CASH THE NET AMOUNT in ascertaining the value of the partner’s interest, the value
OWING TO THE RESPECTIVE PARTNERS. But if dissolution is of the good will of the business shall not be considered. (n)
caused by expulsion of a partner, bona fide under the partnership
agreement and if the expelled partner is discharged from all PARTNER’S LIEN
partnership liabilities, EITHER BY PAYMENT OR AGREEMENT UNDER - it constitutes the right of every partner, on a dissolution,
THE SECOND PARAGRAPH OF ARTICLE 1835, HE SHALL RECEIVE against the other partners and persons claiming through them
(c) To continue the business in the same name during the ARTICLE 1838
agreed term of the partnership, by themselves or jointly
with others; and WHERE A PARTNERSHIP CONTRACT IS RESCINDED on the ground
of the fraud or misrepresentation of one of the parties thereto,
(d) To possess partnership property should they decide to
continue the business. the party entitled to rescind is, without prejudice to any other
right, entitled:
(2) RIGHTS OF PARTNER WHO HAS WRONGFULLY CAUSED THE
DISSOLUTION: (1) To a lien on, or right of retention of, the surplus of the
partnership property after satisfying the partner- ship
(a) If the business is not continued by the other partners, to
have the partnership property applied to discharge its liabilities to third persons for any sum of money paid by him
liabilities and to receive in cash his share of the surplus for the purchase of an interest in the partnership and for
less damages caused by his wrongful dissolution. any capital or advances contributed by him;
(b) If the business is continued:
(2) To stand on, after all liabilities to third persons have
1) To have the value of his interest in the been satisfied, in the place of the creditors of the
partnership at the time of the dissolution, partnership for any payments made by him in respect of the
less any damage caused by the dissolution to partnership liabilities; and
his co-partners, ascertained and paid in cash
or secured by bond approved by the court;
(3) To be indemnified by the person guilty of the fraud of
2) To be released from all existing and future making the representation against all debts and liabilities of
liabilities of the partnership. the partnership. (n)
NOTE:
- in ascertaining the value of their interest, the NOTES:
value of the GOODWILL OF THE BUSINESS IS NOT - If one is induced by fraud or misrepresentation to
CONSIDERED, obviously as a penalty for their bad become a partner, the contract is VOIDABLE OR
faith. ANNULLABLE.
- If the contract is annulled, the injured partner is
entitled to RESTITUTION.
RIGHTS OF THE INJURED PARTNER WHERE CONTRACT RESCINDED lien or secured creditors.
-[on the ground of fraud or misrepresentation]
-(Article 1838 (1)(2)(3)) (9) Where a partner has become insolvent or his estate is
insolvent, the claims against his separate property shall rank in
the following order:
In settling accounts between the partners after dissolution, the (b) Those owing to partnership creditors;
following rules shall be observed, subject to any agreement to
the contrary: (c) Those owing to partners by way of contributions. (n)
- The individual property of a deceased partner shall be (4) When all the partners or their representatives assign their
liable for his share of the contributions necessary to rights in partnership property to one or more third persons who
satisfy the liabilities of the partnership incurred while he promise to pay the debts and who continue the business of the
was a partner. dissolved partnership;
- When partnership property and the individual proper- ties
of the partners are in possession of the court for (5) When any partner wrongfully causes a dissolution and the
distribution, partnership creditors shall first be paid from remaining partners continue the business under the provisions of
partnership property and separate creditors from the article 1837, second paragraph, No. 2, either alone or with
individual properties of the partners. others, and without liquidation of the partnership affairs;
- GENERAL RULE: “PARTNERSHIP ASSETS to partnership
creditors, INDIVIDUAL ASSETS to individual creditors; (6) When a partner is expelled and the remaining partners
anything left from either goes to the other.” continue the business either alone or with others without
liquidation of the partnership affairs.
DOCTRINE OF THE MARSHALLING OF ASSETS
The liability of a third person becoming a partner in the
- the ranking of assets in a certain order toward the
payment of outstanding debts. partnership continuing the business, under this article, to the
creditors of the dissolved partnership shall be satisfied out of the
partnership property only, unless there is a stipulation to the
DISTRIBUTION OF PROPERTY OF INSOLVENT PARTNER contrary.
. (a) First, to those owing to separate creditors;
. (b) Then, to those owing to partnership creditors; and When the business of a partnership after dissolution is continued
. (c) Lastly, to those owing to partners by way of under any conditions set forth in this article the creditors of the
contribution. dissolved partnership, as against the separate creditors of the
retiring partner or deceased partner or the representative of the
deceased partner, have a prior right to any claim of the retired
ARTICLE 1840 partner or the representative of the deceased partner against the
person or partnership continuing the business, on account of the
In the following cases, creditors of the dissolved partnership are retired or deceased partner’s interest in the dissolved partnership
also creditors of the person or partnership continuing the or on account of any consideration promised for such interest or
business: for his right in partnership property.
(1) When any new partner is admitted into an existing Nothing in this article shall be held to modify any right of
partnership, or when any partner retires and assigns (or the creditors to set aside any assignment on the ground of fraud.
representative of the deceased partner assigns) his rights in
partnership property to two or more of the partners, or to one or The use by the person or partnership continuing the business of
more of the partners and one or more third persons, if the the partnership name, or the name of a deceased partner as part
business is continued without liquidation of the partnership thereof, shall not of itself make the individual property of the
affairs; deceased partner liable for any debts contracted by such person
or partnership. (n)
(2) When all but one partner retire and assign (or the
representative of a deceased partner assigns) their rights in
(2) One or more general partners control the business and are
WHEN LIQUIDATION NOT REQUIRED personally liable to creditors (Arts. 1848, 1850.);
(4) The limited partners may ask for the return of their capital
contributions under the conditions prescribed by law (Arts.
1844[h], 1857.); and
(5) The partnership debts are paid out of common fund and
the individual properties of the general partners.
- - A limited partnership, unless (l) The RIGHT, if given, OF ONE OR MORE OF THE
prohibited by law, may carry LIMITED PARTNERS TO PRIORITY OVER OTHER LIMITED
on any business which could PARTNERS, as to contributions or as to compensation
be carried on by a general
partnership. by way of income, and the nature of such priority;
2. Such certificate must be filed for record in the Office PRESUMPTION OF GENERAL PARTNERSHIP
of the Securities and Exchange Commission. - A partnership transacting business is, prima facie, a
REASON: to give actual or constructive notice to general partnership and those who seek to avail
potential creditors or persons dealing with the themselves of the protection of laws permitting the
partnership to acquaint them with its essential creation of limited partnerships must show due
features, foremost among which is the limited compliance with such laws.
liability of the limited partners so that they may - The failure of a limited partnership to extend its term
not be defrauded or misled. when it expired and to register it anew with the
Commission, has the effect of divesting the limited
NOTES: partners of the privilege of limited liability.
- a REASONABLE TIME is allowed depending on
the circumstances of the particular case, for
the filing of the certificate.
- a limited partnership CANNOT BE CONSTITUTED CONSTRUCTION OF PROVISIONS ON LMITED PARTNERSHIP
ORALLY since a prime requisite to the
formation of a limited partnership is he - the courts must consider SUBSTANCE rather than form in
execution of the prescribed certificate. construing the law.
- A person who files a false certificate thereby o However, it should be construed to insure
renders himself liable as a general partner since substantial compliance with all the statutory
he is a contributor of capital to a partnership provisions which are designed for the protection
operating him his behalf. of persons dealing with the partnership.
- The filing of a false affidavit does not result in
imposing personal liability as a penalty, but
merely as a consequence of the fact that the
law refuses protection to one filing a false WHO MAY BECOME LIMITED PARTNERS
affidavit. - An existing general partnership may be changed into a
limited one, and a partner in the former general
partnership may become a limited partner in a limited
partnership thus formed.
SUBSTANTIAL COMPLIANCE IN GOOD FAITH
1. RULES APPLICABLE WHERE THERE IS NO SUBSTANTIAL
COMPLIANCE
- There is authority to the effect that the firm is such ARTICLE 1845
a general partnership only as to its relation to third
persons
- the firm, in form is a limited partnership, subject to The contributions of a limited partner may be cash or property,
all the rules applicable to such partnership but not services.
- as between the partners they are bound by their
agreement; and that all the limited partner’s
relations to his co-partners and their obligations to NOTES:
him growing out of the relation remain unimpaired.
MEDIUM:
- a limited partner treated as a general partner as far
as third persons are concerned is entitled to - A limited partner or special partner is NOT ALLOWED TO
reimbursement from the general partner or partners CONTRIBUTE SERVICES. He can contribute only money or
for whatever obligations he might have paid to property; OTHERWISE, HE SHALL BE CONSIDERED AN
partnership creditors beyond his capital contribution. INDUSTRIAL AND GENERAL PARTNER, in which case, he
shall not be exempted from personal liability.
2. RULES WHERE PARTNERSHIP CREDITOR GUILTY OF o A partner may be a general partner and a limited
ESTOPPEL partner in the same partnership at the same time,
- Where a certificate of formation is defective and provided that this fact shall be stated in the
shows on its face that the statutory requirements certificate provided for in Article 1844 (Art.
have not been complied with, it has been held that a 1853.),
court can on its own motion hold that a limited o but A LIMITED PARTNER MAY NOT BE AN
partnership has not been formed. INDUSTRIAL PARTNER WITHOUT BEING A
o But if attaching creditors recognize and deal GENERAL PARTNER in view of Article 1845 which
with a firm as a limited partnership, they will be requires that a limited partner must be a capital
estopped from insisting that there is no such contributor.
partnership, or that the terms of the partnership
were not sufficiently stated in the notice of its - The law is NOT SATISFIED BY THE LIMITED PARTNER’S
formation. CONTRIBUTION IN PROMISSORY NOTES, CHECKs,
particularly if they are post-dated, OR BONDS, OR BY A
ARTICLE 1847
ACTIVE MANAGEMENT OF PARTNERSHIP BUSINESS CONTEMPLATED
IF THE CERTIFICATE CONTAINS A FALSE STATEMENT, one who - THE LIMITED PARTNER takes part in the management of
suffers loss by reliance on such statement may hold liable any the business and is liable generally for the firm’s
party to the certificate who knew the statement to be false: obligations where:
(1) At the time he signed the certificate, or (1) The business of the partnership is in fact carried on by
a board of directors chosen by the limited partners;
(2) Subsequently, but within a sufficient time before the (2) By the terms of the contract between the parties, an
statement was relied upon to enable him to cancel or amend appointee of the limited partner becomes the directing
the certificate, or to file a petition for its cancellation or manager of the firm;
amendment as provided in article 1865.
(3) The limited partner purchases the entire property of granted the general authority to manage the firm’s
the partnership, taking title in himself and then carries on business.
the business in his own name and for his own exclusive - In the absence of an agreement to the contrary, he
benefit; or is not entitled to compensation for his services
(4) He makes or is a party to a contract with creditors of beyond his share of the profits.
an insolvent firm with respect to the disposal of the firm’s
assets in payment of the firm’s debts. (Ibid.) 2. ACTS OF ADMINISTRATION/ ACTS OF STRICT DOMINION
- He may bind the partnership by any act of
NOTE: a limited partner is not subject to general liability administration, but he has no power to do the
for taking part in the management of the firm because he specific acts enumerated in Article 1850 (even if
settles its affairs after dissolution. agreed to by all the general partners) without the
written consent or at least ratification of all the
limited partners.
- The general partner who violates the requirements
ARTICLE 1849 imposed by by Article 1850 is liable for damages to
the limited partners.
After the formation of a lifted partnership, ADDITIONAL LIMITED
PARTNERS may be admitted upon filing an amendment to the 3. OTHER LIMITATIONS
original certificate in accordance with the requirements of article - The general partners have NO POWER TO BIND THE
1865. LIMITED PARTNERS BEYOND THE LATTER’S
INVESTMENT.
NOTE: - They have no power to act for the firm beyond the
purpose and scope of the partnership.
- Proper amendment to the certificate MUST BE SIGNED
AND SWORN TO BY ALL OF THE PARTNERS, including the - They have no power to change the nature of the
new limited partners, and filed in the Securities and business without the consent of the limited partners.
Exchange Commission pursuant to the requirements of
Article 1865.
ARTICLE 1851
ARTICLE 1850 A limited partner shall have THE SAME RIGHTS AS A GENERAL
PARTNER to:
A general partner shall have all the rights and powers and be (1) HAVE THE PARTNERSHIP BOOKS KEPT at the principal
subject to all the restrictions and liabilities of a partner in a place of business of the partnership, and at a reasonable hour
partnership without limited partners. However, without the written to inspect and copy any of them;
consent or ratification of the specific act by all the limited (2) Have on DEMAND TRUE AND FULL INFORMATION OF ALL
partners, a general partner or all of the general partners have no THINGS affecting the partnership, and a FORMAL ACCOUNT
authority to: OF PARTNERSHIP AFFAIRS whenever circumstances render it
just and reasonable; and
(1) Do any act in contravention of the certificate; (3) Have DISSOLUTION AND WINDING UP BY DECREE OF
(2) Do any act which would make it impossible to carry on COURT.
the ordinary business of the partnership;
(3) Confess a judgment against the partnership; A limited partner shall have the RIGHT TO RECEIVE A SHARE OF
(4) Possess partnership property, or assign their rights in THE PROFITS OR OTHER COMPENSATION by way of income, and
specific partnership property, for other than a partnership to the return of his contribution as provided in articles 1856 and
purpose; 1857.
(5) Admit a person as a general partner;
(6) Admit a person as a limited partner, unless the right so
to do is given in the certificate;
(7) Continue the business with partnership property on the RIGHTS, in general, OF A LIMITED PARTNER
death, retirement, insanity - [limited partner’s powers, actual or implied are much more
limited than those of a general partner.]
- WRONGDOING OR IMPROPER ACTS on the part of general
partners may not give a limited partner greater rights
RIGHTS, POWERS, AND LIABILITIES OF A GENERAL PARTNER than the law and what his contract grants him.
- The rights of a limited partner are necessarily lesser than
1. RIGHT OF CONTROL/ UNLIMITED PERSONAL LIABILITY those of a general partner.
- It is in consideration of his unlimited personal liability
for the obligation of the partnership that he is
SPECIFIC RIGHTS OF A LIMITED PARTNER before the partnership has become liable to third
persons who cannot be blamed for considering him a
(1) To REQUIRE THAT THE PARTNERSHIP BOOKS BE KEPT at general partner. Where no partnership creditors are
the principal place of business of the partnership prejudiced, it would seem that renunciation of his
(2) To INSPECT AND COPY AT A REASONABLE HOUR interest is not necessary.
partnership books or any of them;
(3) To DEMAND TRUE AND FULL INFORMATION of all things - There is NO OBLIGATION TO RETURN OR PAY BACK
affecting the partnership; PROFITS OR COMPENSATION ALREADY RECEIVED,
(4) To DEMAND A FORMAL ACCOUNT OF PARTNERSHIP since the requirement of renunciation refers only to
AFFAIRS whenever circumstances render it just and profits or compensation not yet paid over for a
reasonable; person can hardly be said to have an interest in
(5) To ASK FOR DISSOLUTION AND WINDING up by decree of profit or compensation he has already received.
court;
(6) To RECEIVE A SHARE OF THE PROFITS or other - An HEIR OF A DECEASED GENERAL PARTNER,
compensation by way of income; and ADMITTED AS A PARTNER under the articles of
(7) To RECEIVE THE RETURN OF HIS CONTRIBUTION provided partnership providing for such admission,
the partnership assets are in excess of all its liabilities. ORDINARILY BECOMES A LIMITED PARTNER for his
own protection because he would normally prefer to
avoid any liability in excess of the value of the
estate inherited so as not to jeopardize his personal
assets.
ARTICLE 1852
o RIGHT TO ELECT TO BECOME GENERAL
PARTNER MAY BE EXERCISED: the heir may
Without prejudice to the provisions of article 1848, a person who elect to become a collective or general
has contributed to the capital of a business conducted by a partner, with all the rights and privileges of
person or partnership erroneously believing that he has become a one, and answering for the debts of the firm
limited partner in a limited partnership, IS NOT, by reason of his not only with the inheritance but also with
exercise of the rights of a limited partner, A GENERAL PARTNER the heir’s personal fortune. (this choice is
WITH THE PERSON OR IN THE PARTNERSHIP CARRYING ON THE exclusive to the heir and requires no assent
BUSINESS, OR BOUND BY THE OBLIGATIONS OF SUCH PERSON OR of the surviving partner/partners)
PARTNERSHIP, provided that on ascertaining the mistake he
promptly renounces his interest in the profits of the business, or o The articles of partnership may validly
other compensation by way of income. provide that in the event of the death of a
partner “the partnership shall be continued
and the deceased partner shall be
- Article 1852 grants exemption from liability in favor of one represented by his heirs and assignees in said
who has contributed to the capital of a business conducted partnership” as general partners. (NOTE: he
by a person or partnership erroneously believing that he has stipulation would not bind the heirs of the
become a limited partner in a limited partnership, or in a deceased partner should they refuse to
general partnership thinking that it is a limited partnership. assume personal and unlimited responsibility
It introduces a substantial modification of liability where for the obligations of the firm.)
there has been a failure to create a limited partnership.
LIABLE WITH HIS SEPARATE PROPERTY TO THIRD PERSONS (Art. the obligation of the partnership when any
1816). payment or conveyance is made or release is given
to the limited partner by, or when he receives
However, with respect to his contribution as a limited partner, security from, the partnership.
he would have the right of a limited partner insofar as the other
partners are concerned. (Arts. 1855-1858.) - In transacting business with the partnership as a
non-member, the limited partner is considered as a
This means that while he is not relieved from personal liability non-partner creditor. HOWEVER, THIRD PERSONS
to third persons for partnership debts, he is entitled to recover ALWAYS ENJOY PREFERENTIAL RIGHTS INSOFAR AS
from the general partners the amount he has paid to such third PARTNERSHIP ASSETS ARE CONCERNED (see Art.
persons; and in settling accounts after dissolution, he shall have 1827.) in view of the natural tendency of the
priority over general partners in the return of their respective partners to give preference to each other.
contributions. (Art. 1863.) § (this rule is “designed to prevent illegal
competition between the limited partner
and creditors of the partnership for the
assets of the partnership” in case there is
ARTICLE 1854 insufficiency of partnership assets with
which to discharge partnership liabilities to
non- partner creditors.)
A limited partner ALSO MAY LOAN MONEY TO AND TRANSACT
OTHER BUSINESS WITH THE PARTNERSHIP, and, unless he is also a
general partner, RECEIVE ON ACCOUNT OF RESULTING CLAIMS
AGAINST THE PARTNERSHIP, with general creditors, a pro rata
share of the assets. No limited partner shall in respect to any ARTICLE 1855
such claim:
(1) RECEIVE OR HOLD AS COLLATERAL SECURITY any Where there are SEVERAL LIMITED PARTNERS the members may
partnership property, or agree that one or more of the limited partners shall have a
(2) RECEIVE FROM A GENERAL PARTNER OR THE PRIORITY OVER OTHER LIMITED PARTNERS AS TO THE RETURN OF
PARTNERSHIP any payment, conveyance, or RELEASE FROM THEIR CONTRIBUTIONS, AS TO THEIR COMPENSATION BY WAY OF
LIABILITY if at the time the assets of the partnership are INCOME, or AS TO ANY OTHER MATTER. If such an agreement is
not sufficient to discharge partnership liabilities to persons made it shall be stated in the certificate, and in the absence of
not claiming as general or limited partners. such a statement all the limited partners shall stand upon equal
footing
The receiving of collateral security, or payment, conveyance, or
release in violation of the foregoing provisions is a fraud on the
creditors of the partnership. PREFERRED LIMITED PARTNERS
NOTE:
ALLOWABE TRANSACTIONS (by a limited partner, who is not also a - such agreement must be stated in the certificate.
general partner) If not, even if there is agreement, all the limited
partners shall stand on equal footing in respect of
1. Granting loans to the partnership these matters.
2. Transacting other business with it
3. Receiving a pro rata share of the partnership assets with
general creditors id=f he is not also a genera partner. ARTICLE 1856
PROHIBITED TRANSACTIONS
A limited partner MAY RECEIVE FROM THE PARTNERSHIP THE
1. Receiving or holding as collateral security any partnership SHARE OF THE PROFITS OR THE COMPENSATION BY WAY OF
property; or INCOME STIPULATED FOR IN THE CERTIFICATE; provided, that
2. Receiving any payment, conveyance, or release from after such payment is made, whether from property of the
liability if it will prejudice the right of third persons. partnership or that of a general partner, the partnership assets
are in excess of all liabilities of the partnership EXCEPT liabilities
NOTES: to limited partners on account of their contributions and to
- Any violation of the prohibition will give rise to the general partners.
presumption that it has been made to defraud
partnership creditors.
- 1854 (1) is not absolute COMPENSATION OF LIMITED PARTNER
- Nos. (1) and (2) of Article 1854 are modified by The right of the limited partner to receive his share of the
the requirement of sufficient assets to discharge profits or compensation by way of income stipulated for in the
certificate is SUBJECT TO THE CONDITION THAT PARTNERSHIP REQUISITES BEFORE THE CONTRIBUTION OF A LIMITED PARTNER
ASSETS WILL STILL BE IN EXCESS OF PARTNERSHIP LIABILITIES CAN BE RETURNED TO HIM (Art. 1857(1))
AFTER SUCH PAYMENT. In other words, third-party creditors have
priority over the limited partner’s rights. WHEN RETURN OF CONTRIBUTION A MATTER OF RIGHT (Art. 1857
(2))
NOTE:
- In determining the liabilities of the partnership, THE NOTE: Under the second paragraph, the limited partner may
LIABILITIES TO THE LIMITED PARTNERS FOR THEIR demand, as a matter of right, the return of his contribution
CONTRIBUTIONS AND TO GENERAL PARTNERS, provided the conditions in paragraph 1, Nos. 1 and 3 have been
WHETHER FOR CONTRIBUTIONS OR NOT, ARE NOT complied with.
INCLUDED.
RIGHT OF LIMITED PARTNER TO CASH IN RETURN FOR
CONTRIBUTION (Art. 1857(3))
ARTICLE 1857
Under the third paragraph, even if a limited partner has
contributed property, he has only the right to demand and receive
A limited partner SHALL NOT RECEIVE FROM A GENERAL cash for his contribution.
PARTNER OR OUT OF PARTNERSHIP PROPERTY ANY PART OF HIS
CONTRIBUTIONS until: The EXCEPTIONS are:
(1) When there is stipulation to the contrary in the
(1) ALL LIABILITIES OF THE PARTNERSHIP, except certificate; or
liabilities to general partners and to limited partners on (2) Where all the partners (general and limited)
account of their contributions, HAVE BEEN PAID OR consent to the return other than in the form of cash.
THERE REMAINS PROPERTY OF THE PARTNERSHIP
SUFFICIENT TO PAY THEM; WHEN LIMITED PARTNER MAY HAVE PARTNERSHIP DISSIOLVED (Art.
(2) THE CONSENT OF ALL MEMBERS IS HAD, unless the 1857(4))
return of the contribution may be rightfully demanded
under the provisions of the second paragraph; and NOTES:
(3) THE CERTIFICATE IS CANCELLED OR SO AMENDED
AS TO SET FORTH THE WITHDRAWAL OR REDUCTION. - In other words, were it not for this first condition
in the first paragraph of Article 1857 which is not
Subject to the provisions of the first paragraph, A present, he would have been entitled to the return
LIMITED PARTNER MAY RIGHTFULLY DEMAND THE of his contribution because of the presence of the
RETURN OF HIS CONTRIBUTION: second and third conditions.
- The limited partner must first ask the other
(1) On the dissolution of a partnership; or partners to have the partnership dissolved; if they
(2) When the date specified in the certificate for refuse, then he can seek the dissolution of the
its return has arrived, or partnership by judicial decree.
(3) After he has six months' notice in writing to all
other members, if no time is specified in the
certificate, either for the return of the contribution
or for the dissolution of the partnership. ARTICLE 1858
In the absence of any statement in the certificate to the
contrary or the consent of all members, A LIMITED PARTNER, A limited partner is LIABLE to the partnership:
irrespective of the nature of his contribution, HAS ONLY THE
RIGHT TO DEMAND AND RECEIVE CASH IN RETURN FOR HIS (1) For the difference between his contribution as actually
CONTRIBUTION. made and that stated in the certificate as having been
made, and
A LIMITED PARTNER MAY HAVE THE PARTNERSHIP DISSOLVED (2) For any unpaid contribution which he agreed in the
AND ITS AFFAIRS WOUND UP WHEN: certificate to make in the future at the time and on the
conditions stated in the certificate.
(1) He rightfully but unsuccessfully demands the return
of his contribution, or A limited partner holds as TRUSTEE for the partnership:
(2) The other liabilities of the partnership have not been
paid, or the partnership property is insufficient for their (1) SPECIFIC PROPERTY STATED IN THE CERTIFICATE AS
payment as required by the first paragraph, No. 1, and CONTRIBUTED BY HIM, but which was not contributed or
the limited partner would otherwise be entitled to the which has been wrongfully returned, and
return of his contribution. (2) MONEY OR OTHER PROPERTY WRONGFULLY PAID OR
CONVEYED TO HIM ON ACCOUNT OF HIS CONTRIBUTION.
OF ALL MEMBERS; but a waiver or compromise shall not - So, A should pay the difference of P2,000.00
affect the right of a creditor of a partnership who extended and B, the amount of P4,000.00 on the date
credit or whose claim arose after the filing and before a specified or now, if the date has arrived.
cancellation or amendment of the certificate, to enforce
such liabilities.
LIABILITY AS TRUSTEE (second par.)
When a CONTRIBUTOR has rightfully received the return in whole
or in part of the capital of his contribution, he is nevertheless REQUISITES FOR WAIVER OR COMPROMISE OF LIABILITIES (third
LIABLE TO THE PARTNERSHIP FOR ANY SUM, not in excess of par.)
such return with interest, necessary to discharge its liabilities to
all creditors who extended credit or whose claims arose before 1. The waiver or compromise is made with the consent of
such return. all the partners; and
2. The waiver or compromise does not prejudice
partnership creditors who extended credit or whose claims
arose before the cancellation or amendment of the
LIABILITIES OF A LIMITED PARTNER certificate.
1. TO THE PARTNERSHIP: EXAMPLE:
As a rule, their liability is to the partnership not to - In the preceding illustration, suppose after the
creditors of the partnership. The general partners liabilities of A and B were waived or compromised
CANNOT, however, waive any liability of the limited with the consent of all the partners, X extended
partners to the prejudice of such creditors. credit to the partnership.
2. TO PARTNERSHIP CREDITORS AND OTHER PARTNERS: - Later on, the certificate was amended to set
Liable for partnership obligations: forth the necessary change.
1. when he contributes services instead of only - Here, the credit was extended after the filing but
money or property to the partnership (Art. before the amendment of the certificate.
1845.); - If the remaining assets are insufficient, X can still
2. when he allows his surname to appear in the enforce the liabilities of A and B.
firm name (Art. 1846.);
3. when he fails to have a false statement in the
certificate corrected, knowing it to be false (Art. LIABILITY FOR RETURN OF CONTRIBUTION ALREADY RECEIVED
1847); (fourth par.)
4. when he takes part in the control of the
business (Art. 1848.); EXAMPLE:
5. when he receives partnership property as - Suppose that A lawfully received the return of
collateral security, payment, conveyance, or his contribution in the amount of P10,000.00 on
release in fraud of partnership creditors (Art. the date specified in the certificate.
1854); and - Subsequently, the partnership became liable to X.
6. when there is failure to substantially comply
with the legal requirements governing the - In this case, if the assets of the partnership are
formation of limited partnerships. (Art. 1844, insufficient, the claim of X should be directed
par. 2.) against the general partners.
- But if X extended credit or his claim arose before
3. TO SEPARATE CREDTIORS: A received the return of his contribution, then, A
The creditor of a limited partner may apply to the is liable to the partnership.
proper court for a “charging order” subjecting the - Thus, if the partnership needs P7,000.00 to
interest in the partnership of the debtor partner for the discharge the liabilities to X, then A is liable for
payment of his obligation. the said amount plus interest.
- But in no case is A liable beyond P10,000.00
plus interest because he is only a limited partner.
LIABILITY FOR UNPAID CONTRIBUTION (first par.)
EXAMPLE:
- A and B are limited. In the certificate of
partnership, it appears that A contributed ARTICLE 1859
P10,000.00. Actually, he contributed only
P8,000.00.
- In the certificate too, B promised to give an A limited partner's INTEREST IS ASSIGNABLE.
additional contribution of P4,000.00 at a
specified date. A SUBSTITUTED LIMITED PARTNER is a person admitted to all the
rights of a limited partner who has died or has assigned his
interest in a partnership.
EFFECT OF CHANGE IN THE RELATION IN THE LIMITED PARTNERS The retirement, death, insolvency, insanity or civil interdiction of
- The substitution of a person as a limited partner in place a general partner DISSOLVES THE PARTNERSHIP, unless the
of an existing limited partner (Art. 1859.), or the business is continued by the remaining general partners:
withdrawal, death, insolvency, insanity, or civil interdiction (1) Under a right so to do stated in the certificate, or
of a limited partner (Art. 1860.), or the addition of new (2) With the consent of all members.
limited partners (Art. 1849.) DOES NOT NECESSARILY
DISSOLVE THE PARTNERSHIP.
NOTES:
NOTE: - while any of such causes affecting a limited partner (see Art.
- No limited partner can withdraw his contributions 1861.) does not result in its dissolution unless, of course,
UNTIL all liabilities to creditors are paid. there is only one limited partner. (see Art. 1843.)
ARTICLE 1861
REQUISITES IN ORDER THAT ASSIGNEE MAY BECOME SUBSTITUTED
BY LIMITED PARTNER
- [A substituted limited partner is a person admitted to all On the death of a limited partner his EXECUTOR or
the rights of a limited partner who has died or has ADMINISTRATOR shall have all the rights of a limited partner for
assigned his interest in a partnership.] the purpose of setting his estate, and such power as the
deceased had to constitute his assignee a substituted limited
1. ALL THE MEMBERS MUST CONSENT to the assignee partner.
becoming a substituted limited partner or the limited
The ESTATE OF A DECEASED LIMITED PARTNER shall be liable for ARTICLE 1863
all his liabilities as a limited partner.
The remedies conferred by the first paragraph shall not be - Article 1863 expressly provides for priority in the
deemed exclusive of others which may exist. distribution of the assets after dissolution
ARTICLE 1864
WHEN NOTICE OF DISSOLUTION NOT NECESSARY:
- When the firm is dissolved by the expiration of the
term fixed in the certificate. The certificate shall be CANCELLED WHEN THE PARTNERSHIP IS
Reason: since the papers filed and recorded in the DISSOLVED OR ALL LIMITED PARTNERS CEASE TO BE SUCH.
Securities and Exchange Commission are notice to all
the world of the term of the partnership. A certificate shall be AMENDED WHEN:
(1) There is a change in the name of the partnership or in
o HOWEVER, the dissolution is by the express will the amount or character of the contribution of any limited
of the partners, the certificate shall be cancelled, partner;
and a dissolution of the partnership is not (2) A person is substituted as a limited partner;
effected until there has been compliance with (3) An additional limited partner is admitted;
the requirement in this respect. (4) A person is admitted as a general partner;
(5) A general partner retires, dies, becomes insolvent or
insane, or is sentenced to civil interdiction and the
business is continued under article 1860;
NOTEs: (6) There is a change in the character of the business of
- The partnership continues in operation while winding up. the partnership;
- When a limited partnership has been duly dissolved, the (7) There is a false or erroneous statement in the
general partners have the right and power to wind up its certificate;
affairs, as in a general partnership. (8) There is a change in the time as stated in the
certificate for the dissolution of the partnership or for the
- It is not the duty of the limited partner or of the return of a contribution;
representative of a deceased limited partner to care for or (9) A time is fixed for the dissolution of the partnership,
collect the assets of the firm. or the return of a contribution, no time having been
- The representatives of the general partners, not the specified in the certificate, or
limited partners, succeed the general partners. (10) The members desire to make a change in any other
statement in the certificate in order that it shall
accurately represent the agreement among them.
SHARE OF LIMITED PARTNERS IN PARTNERSHIP ASSETS (last par.)
- This proportional sharing by the limited partners takes
place where the partnership assets are insufficient to pay
such claims.
WHEN CERTIFICATE SHALL BE CANCELLED OR AMENDED
PRIORITY OF CLAIMS OF LIMITED PARTNERS - CANCELLED
- The members of a limited partnership, as among (a) When the partnership is dissolved other than by
themselves, may include in the partnership articles an reason of the expiration of the term of the partnership;
agreement for priority of distribution on the winding up of (b) When all the limited partners cease to be such. A
partnership affairs. limited partnership cannot exist as such if there are no
o Such agreement ordinarily becomes controlling more limited partners. (Art. 1843.)
as between the partners themselves.
o In the absence of any contrary agreement, all - In all other cases, only an amendment of the certificate is required.
the limited partners stand upon equal footing. (Art. 1864, Nos. 1-10.)
NOTES:
- Claims arising from individual loans to, or other
business transactions with, the partnership,
other than for capital contributions, the limited ARTICLE 1865
partner is placed in the same category as a
non-member creditor. (Art. 1854, par. 1.)
- If return is made to a limited partner of his The writing to amend a certificate shall:
contribution before creditors are paid, he is (1) Conform to the requirements of article 1844 as far as
under an obligation to reimburse such payments, necessary to set forth clearly the change in the certificate
with interest, so far as necessary to satisfy the which it is desired to make; and
claims of creditors. (see Art. 1858, last par.) (2) Be signed and sworn to by all members, and an
amendment substituting a limited partner or adding a
- In the event of insolvency of the partnership, its limited or general partner shall be signed also by the
creditors take preference over both general and member to be substituted or added, and when a limited
limited partners. partner is to be substituted, the amendment shall also be
signed by the assigning limited partner.
A person desiring the cancellation or amendment of a A CONTRIBUTOR, unless he is a general partner, IS NOT A
certificate, if any person designated in the first and PROPER PARTY TO PROCEEDINGS BY OR AGAINST A
second paragraphs as a person who must execute the PARTNERSHIP, except where the object is to enforce a limited
writing refuses to do so, may petition the court to order partner's right against or liability to the partnership.
a cancellation or amendment thereof.
If the court finds that the petitioner has a right to have the LIMITED PARTNER, A MERE CONTRIBUTOR
writing executed by a person who refuses to do so, IT SHALL
ORDER THE OFFICE OF THE SECURITIES AND EXCHANGE - He is practically a stranger in the limited partnership
COMMISSION WHERE THE CERTIFICATE IS RECORDED, to record whose liability is limited to his interest in the firm (Art.
the cancellation or amendment of the certificate; and when the 1843.), without any right and power to participate in the
certificate is to be amended, THE COURT SHALL ALSO CAUSE management and control of the business. (see Arts. 1848,
TO BE FILED FOR RECORD IN SAID OFFICE A CERTIFIED COPY OF 1851.)
ITS DECREE SETTING FORTH THE AMENDMENT. - A limited partner is, therefore, not prohibited from
engaging in business for himself even in competition with
A CERTIFICATE IS AMENDED OR CANCELLED WHEN there is filed that conducted by the partnership (see Arts. 1789, 1808.)
for record in the Office of the Securities and Exchange and may transact business with the partnership for
Commission, where the certificate is recorded: ordinary purposes as though he were a stranger. (see Art.
(1) A writing in accordance with the provisions of the first 1854.)
or second paragraph, or
(2) A certified copy of the order of the court in PARTIES TO ACTION BY OR AGAINST PARTNERSHIP
accordance with the provisions of the fourth paragraph; - Since limited partners are not principals in partnership
(3) After the certificate is duly amended in accordance transactions, their liability, as a general rule, is to the
with this article, the amended certified shall thereafter be partnership, not to the creditors of the partnership. (see
for all purposes the certificate provided for in this Art. 1858.)
Chapter. o they have no right of action against third
persons against whom the partnership has any
enforceable claim.
- Hence, unless a limited partner is also a general partner,
or has become liable as a general partner, he is not a
REQUIREMENT FOR AMENDMENT AND CANCELLATION OF proper party to proceedings by or against the partnership.
CERTIFICATE
WHEN LIMITED PARTNER A PROPER PARTY
AMENDMENT - where the object is to enforce his individual rights against
a. The amendment must be in writing; the partnership (Art. 1851.), and to recover damages for
b. It must be signed and sworn to by all the members violation of such right.
including the new members, and the assigning limited
partner in case of substitution or addition of a limited or - Similarly, he is a proper party to a proceeding to enforce
general partner; and his liability to the partnership. (Art. 1858.)
c. The certificate, as amended, must be filed for record in
the Securities and Exchange Commission. NOTES:
- An action at law may be maintained by creditors
CANCELLATION of a firm against a limited partner to account for
a. must also be in writing and restore sums withdrawn by him from the
b. signed by all the members capital of the firm with outstanding debts on a
c. filed with the Office of the Securities and Exchange voluntary dissolution.
Commission. § But there is authority that such relief
d. [If the cancellation is ordered by the court,] certified copy against limited partners who have
of such order shall be filed with the Commission. withdrawn their contributions from an
insolvent firm on dissolution is confined
to judgment creditors of the firm with
NOTE: unsatisfied executions against the
- From the moment the amended certificate or a general partners
certified copy of a court order granting the petition • this remedy has been denied
for amendment has been filed, such amended to creditors who have not
certificate shall thereafter be for all purposes the exhausted their remedies at
certificate of the partnership under Article 1844. law against the general
- The approval by the Commission of the amendment partners.
or cancellation is not required.
ARTICLE 1867