Agency, Trust & Partnership Reviewer - 1810-1836 (Cambri Notes)

7/23/2019 Agency, Trust & Partnership Reviewer - 1810-1836 (Cambri Notes)

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1810Property Rights of a Partner

interest in the partnershipthe partners shares of the

prots and losses

Right to participate in the managementproperty right

Partnership Capitalconstant and remains unchanged and not

aected by uctuations in the value of partnership property

although it may be increased or decreased by consent of

partners! It represents the aggregate of the individual

contributions made by the partners.

Partnership Propertyvariable it changes! It includes not

only the original capital but all property subsequently

acquired on account of partnership name.

1811Co-ownership in Specic Partnership Property

"a partner is a co"o#ner #ith his partners of specic

partnership property but rules of co"o#nership does not

necessarily apply

Rights of a Partner in Specic Partnership Property

contemplates only tangible things

$! has an e%ual right #ith his partners to possess but

only for partnership purposes&not for other

purposes' without the consent of other partners.a! (ransmissible to surviving heirs! (hey have

the right to #ind up business!)! he cannot assign his right except if all the other

partners assign their rights in the same

property;violation of this rule renders the

assignment is void!a! Reasonit is impossible to determine the

e*tent of his benecial interest in the

property until after li%uidation of partnership

aairs!A partner has no interest in it but his

share of what remains after all partnership

debts are paid.b! Reason for non-assigna!ility+ prevents

interference by outsiders in partnership

aairs!c! ,n authori-ed assignment by a partner of

his right is void but it may be regarded as a

valid assignment of the partners interest in

the partnership!.! /is right is not sub0ect to attachment or e*ecution

#ithout the consent of all partners &e*cept on a claim

against the partnership'a! 1f there is a partnership debt the specic

property C,2 be attached! (he partners

cannot claim e*emption under homestead

or e*emption la#s!b! Reason why in general" right cannot !e

attache#1f he cannot ma3e a voluntary

assignment neither should his separate

creditors be allo#ed an involuntary

assignment because the benecial rights of

the separate creditors of a partner in

specic partnership property should be no

greaterthan the benecial rights of their

debtor!4! /is right is not sub0ect to legal support &,rt!)5$'

a! Reason+ #ould result to diminution of

property to the e*tent of the e*emption

granted!

b! $ot su!%ect to legal supportbecause

the property belongs to the partnership and

not to the others! 6ut their interest in

partnership is sub0ect to support!

181&Partner's (nterest in the Partnership

, partners interest in the partnership &his share in the prots

and surplus' can in general be assigned be attached and be

sub0ect to legal support!

(ransferee cannot interfere or participate in the management

or administration but he can receive the net prots to #hich

the partner #ould have been entitled!

Protmeans the e*cess of returns over e*penditure in a

transaction or series of transactions7 or the net income of the

partnership

Surplusassets of the partnership after partnership debts

and liabilities are paid and settled and the rights of the

partners among themselves are ad0usted! It is the excess of

assets over liabilities.

) partner is not a cre#itor of the partnership for the

amount of his share*

181+,ects of Con.eyance /y Partner of is interest

in the Partnership

, partner may assign his interest in the partnership to any of

his co"partners or to a third person #ithout the consent of the

other in the absence of agreement!

$! 1f a partner conveys &assigns sells donates' his

#hole interest either t#o things may happena! (he partnership may still remainb! (he partnership may be dissolved

)! (he assignee does not necessarily become a partner!

(he assignor is still the partner #ith a right to

demand accounting and settlement!.! (he assignee cannot e.en interfere in the

management or a#ministration!* (he assignee cannot #eman# information"

accounting2* Cannot inspect any of the partnership !oo3s*

Rights of )ssignee

$! (o get #hatever prots the assignor"partner #ould

have obtained)! (o avail himself of the usual remedies in case of fraud

in the management.! (o as3 for annulment of the contract of assignment if

he #as induced to enter into thru any vices of

consent or he himself #as incapacitated to giveconsent!

4! (o demand accounting

8, partners conveyance operates as #issolutiononly #hen

it is clear that the parties contemplated and intended the

#ithdra#al from the partnership of such partner and the

termination of the partnership as bet#een the partners!

181Charging of (nterst of a partner

Charging 4r#ersub0ecting the interest of the debtor in the

partnership #ith the payment of unsatised amount of

0udgment!

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6R 9hile a partners interest in the partnership may be

charged or levied upon his interest in a specic rm property

cannot as a rule be attached!

Preferential Rights of Partnership Cre#itors

(he claims of partnership creditors must be satised

rst before the separate creditors of the partners can

be paid out of the interest charge!

Separate or in#i.i#ual cre#itors ha.e

preference in separate or in#i.i#ual properties*

Re#emption of interest charge#

Re#emptionmeans the e*tinguishment of the

charge or attachment on the partners interest in the

prots!

ow ma#e7$! :ay be redeemed or purchased #ith the

separate property of any one or more of the

partners ;R)! #ith partnership property #ith the consent

of all the partners #hose interests are not so

charged or sold!

(he charge may be redeemed or bought at

anytime 6 $)>,

=irmname title or style under #hich a company transacts

business &to distinguish the partnership #hich is a distinct and

separate 0uridical personality from individuals composing the

partnership!

>R+ (he partners may adopt any rm desired!

(he partners cannot use a name that is i#entical or

#ecepti.ely confusingly similar to that of any existing

or corporation or to any other namealready protected by

la# or is patently deceptive confusing or contrary to e*isting

la#s!

(he continued use of the name of a deceased partner is

permissible provided that the rm indicates in all its

communications that said partner is deceased! &CPR'

ia!ility for inclusion of name in rm name+ Persons

#ho not being partners include their names in the rm name

do not ac%uire the rights of a partner!

$! (he fact that the partner is an agent)! (he instances #hen he can bind the partnership

a! 2o duty on third persons as to acting

partners authority!b! (here is presumption that he has authority

to bind partnership!c! 6ut third parties ha# no right to assume

that partner has unlimited authority! 9hen a

partner #ho has no e*press implied or

apparent authority the partnership is not

liable for his acts!.! (he instances #hen he cannot bind the partnership

&he alone should be liable'

Partnership is a mutual agency!


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)! )cts of #ominion or ownership&par ) and .'a! Par+ limitations to the authority granted to

bind the partnershipb! Reasons

i! ,ssign the propertythe rm #ill

virtually be dissolvedii! @ispose of the good#illgood#ill is

valuable propertyiii! @o any other act #hich #ould ma3e

it impossible to carry onevidently

pre0udicial

iv! Confess a 0udgmentif done beforea case is led it is null and void

v! Compromisean act of o#nership

and may be e%uivalent to

alienationvi! ,rbitrationvii! Renounce a claimthe claim

belongs to the partnership.! )cts in contra.ention of a restriction on

authority DparEa! Partnership is not liable to third persons

having actual or presumptive 3no#ledge of

the restrictions #hether or not the acts are

for apparently carrying on in the usual #ay

the business of the partnership!

1818con.eyance of real property !elonging to the

partnership

,pplicable to real property only

9o con.ey or con.eyance means a sale or

donation or mortgage

Real property must !e registere# or owne# in the

name of

(he partnership

;ne or more but not all the partners

;ne or more or all the partners or in a third person

in trust for the partnership!

Par 1F& #hat is conveyed is the title

Par +F#hat is conveyed is eGuita!le interestall

interest #hich the partnership had e*cept title! (hese are

benecial interest li3e use fruits but not the na3ed

o#nership!

$! (itle in partnership name conveyance in partnership

name ithout authority'passes the title to

!uyere*cepta! (he conveyance is not in the usual #ay of

businessb! /ad 3no#ledge of the fact of no authority

)! (itle in partnership name conveyance in partnersnamee%uitable interest

.! (itle in name of one or more partners conveyance in

name of partner or partners in #hose name title

stands, and 6 sold the land in their o#n name!

(itle is conveyeda! If without authority:

i! 1f buyer is in good faith and had no

3no#ledgetitle passesii! 1f buyer is in bad faith the rm can

recover!4! (itle in name of one or more or all partners or a third

person in trust for partnership conveyance e*ecuted

in partnership name or in name of the partner

e%uitable interest in both casesA! (itle in name of all partners conveyance in name of

,BB partnerstitle passes

18&0a#mission !y a partner

6R a person is not bound by the act admission statement or

agreement of another of #hich he has no 3no#ledge or to

#hich he has not given is consent e*cept by virtue of a

particular relation bet#een them!

,n admission made by a partner is an admission against the

partnership under the conditions given+

$! (he admission must concern partnership aairs)! 9ithin the scope of his authority

9hen a partner ma3es admission for himself only he alone

shall be chargeable #ith his admissions!

Restriction

1* (he admission made before dissolution are binding

only when the partner has authority to act on

the particular matter*&* ,dmissions made after dissolution are binding only if

the admissions #ere necessary to #ind up the

business

18&1$49(C, 94" 4R H$4,6, 4:" ) P)R9$,R 4:

>)99,R )::,C9($6 P)R9$,RS(PS

(SS(4$ 4R /R,)C 4: 9R=S9 -- ,(1;2E D2@


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Partnership is not lia!leif the partner acted on his o#n

and not for the benet of the partnership in the course of

some transaction not connected #ith the partnership

business!

Criminal lia!ilitynon"acting partner is not liable unless the

partnership is engaged in an unla#ful enterprise!

hen the rm an# partners are not lia!le DParasE

1* 1f the #rongful act or omission #as not done #ithin

the scope of the partnership business and for its

benet!&* 1f the act or omission #as not #rongful!+* 1f the act or omission although #rongful did not

ma3e the partner concerned liable himself!* 1f committed after the rm has been dissolved!

>isapplication of money or property

1* #as received #ithin the scope of partner authority&* or by any other partner after it #as received by the

partnership in the ordinary course of business #hile

in its custody!

18&2partner !y estoppels

$! 1t is not a partnership!)!


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a! of ma3ing good all outstanding

engagementsb! of ta3ing and settling all accountsc! collecting all the property means and

assets for the benet of all interested!.! (ransaction of ne# business prohibited

18+0-C)=S,S 4: (SS4=9(4$ DautomaticE e*clusive

categories

1* ,ct of parties not in violation of their agreement1E (ermination of the denite term or particular

underta3ing&E 6y the e*press #ill of any partner #ho must

act in good faith #hen there is no denite

term and no specied underta3ing+E 6y e*press #ill of all the partners &e*cept

those #ho have assigned or #hose

interests have been charged'E


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18+2,::,C9 4: (SS4=9(4$ 4$ P)R9$,R'S

,L(S9($6 ()/((9?

@oes not of itself discharge the e*isting liability of a partner!

18+5($($6 =P

$! Ku#iciallyunder the control and direction of the

proper court upon cause sho#n by any partner his

legal representative or his assignee)! ,xtra%u#icially

a! by the partners themselves #ithoutintervention of the court

b! or by the legal representative of the last

surviving partner

Persons authoriMe# to win# up

1* (he partners designated by agreement!&* 1n the absence of such all the partners #ho not

#rongfully dissolved the partnership7 or+* (he legal representative of the last surviving partner* 8(he court may appoint a receiver to #ind up!

Powers of liGui#ating partner

1* :a3e ne# contracts&* Raise money to pay partnership debts+* 1ncur obligations to complete e*isting contracts or

preserve partnership assets!* 1ncur e*penses necessary in the conduct of litigation8the surviving partner has the full authority to do

everything that may be necessary but his po#er is

limited to the performance of acts #hich are

indispensable to that end!

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Agency, Trust & Partnership Reviewer - 1810-1836 (Cambri Notes)

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