QuickTime™ and aTIFF (Uncompressed) decompressorare needed to see this picture.
A
TENEO
C
ENTRAL
B
AR
O
PERATIONS
2007
Civil Law
SUMMER REVIEWER
—Adviser:
Dean Cynthia Roxas-Del Castillo
; Heads:
Joy Marie Ponsaran, Eleanor Mateo
; Understudies:
Joy StephanieTajan, John Paul Lim;
Subject Head:
Thea Marie Jimenez
; Pledgees:
Naealla Rose Bainto
,
Sandra May Maclang
—
CHAPTER 1: GENERAL PROVISIONS
(
General Professional Partnership
,
Art.1767¶2
)
Two or more persons may also form a partnershipfor the exercise of a profession.
ELEMENTS OF A PARTNERSHIP:
There shall be a partnership whenever:1. There is a meeting of the minds;2. To form a common fund;3. With intention that profits (and losses) will bedivided among the contracting parties.
ESSENTIAL FEATURES:1.
There must be a
VALID CONTRACT
.
2.
The parties must have
LEGAL CAPACITY
toenter into the contract.
3.
There must be a mutual contribution ofmoney, property, or industry to a
COMMONFUND.4.
There must be a
LAWFUL OBJECT
.
5.
The purpose or primary purpose must be toobtain
PROFITS
and
DIVIDE
the sameamong the parties.
•
It is also required that the articles of partnershipmust NOT be kept SECRET among themembers; otherwise, the association shall haveno legal personality and shall be governed by theprovisions on CO-OWNERSHIP (
Art. 1775
).
•
"kept secret among the members" =
secrecydirected not to third persons but to some of thepartners
CHARACTERISTICS:1.
Essentially contractual in nature (
Art. 1767,1784
)
2.
Separate juridical personality (
Art. 1768
)
3.
Delectus personae
4.
Mutual Agency (
Art. 1803
)
5.
Personal liability of partners for partnershipdebts
FORM OF PARTNERSHIP CONTRACTGENERAL RULE:
No special form is required for thevalidity of a contract. (
Art. 1356
)
CHAPTER 2: OBLIGATIONS OF PARTNERSPARTNERSHIP
-
a contract wherein two or morepersons bind themselves to contribute money,property, or industry to a common fund, withthe intention of dividing the profits amongthemselves. (
see
Art. 1767, CC
)
Art. 1784.
A partnership begins from the moment of the execution of the contract, unless it is otherwise stipulated.EXCEPTIONS:
1. Where immovable property/real rights arecontributed
(
Art. 1771
)
a.
Public instrument is necessary
b.
Inventory of the property contributedmust be made, signed by theparties and attached to the publicinstrument otherwise it is VOID
2.
When the contract falls under thecoverage of the Statute of Frauds
(
Art.1409
)3.
Where capital is P3,000 or more, in moneyor property
(
Art. 1772
)
a. Public instrument is necessaryb. Must be registered with SEC
NOTE:
•
SEC Opinion, 1 June 1960:
For purposes ofconvenience in dealing with governmentoffices and financial institutions, registrationof partnership having a capital of less thanPhp 3,000
is recommended.
SEPARATE JURIDICAL PERSONALITY
Art. 1768.
The partnership has a juridical personality separate and distinct form that of each of the partners, even in case of failure to comply with the requirements of Article 1772,first paragraph.
As a JURIDICAL PERSON, a partnership may:1. acquire and possess property of all kinds;2. incur obligations; and3. bring civil or criminal actions,in conformity with the laws and regulations of theirorganization. (See
Art. 46
)
PRINCIPLE OF DELECTUS PERSONARUMDELECTUS PERSONAE
—The selection or choice ofthe person.
Implications:
(Dean Villanueva)
QuickTimTIFF (Uncompressed)e™ and adecompressor
Civil Law Summer Reviewer
A
TENEO
C
ENTRAL
B
AR
O
PERATIONS
2007
Page 158 of 297
are needed to see this picture.
•
The assignment of a partner of his sharedoes not make assignee a partner (
Art.1804
and
1813
)
•
The existence of the partnership is closelytied-up to the particular contractualrelationship of the partners (
see instances of dissolution of the partnership upon change of contractual relationship.
)
Ortega v. CA
,
G.R. No. 109248, July 3, 1995
Doctrine of Delectus Personae:
The birth and life of a partnership at will is predicated on the mutual desire and consent of the partners. The right to choose with whom a person wishes to associate himself is the very foundation and essence of that partnership.
MEANING of MUTUAL AGENCY(According to Dean Villanueva)
•
In the absence of contractual stipulation, allpartners shall be considered agents andwhatever any one of them may do alone shallbind the partnership (
Art. 1803[1], 1818
)
•
Partners can dispose of partnership propertyeven when in partnership name (
Art. 1819
)
•
An admission or representation made by anypartner concerning partnership affairs is evidenceagainst the partnership (
Art. 1820
)
•
Notice to any partner of any matter relating topartnership affairs is notice to the partnership(
Art. 1821
)
•
Wrongful act or omission of any partner acting forpartnership affairs makes the partnership liable(
Art. 1822
)
•
Partnership bound to make good losses for actsor misapplications of partners (
Art. 1823
)
UNLIMITED LIABILITY(According to Dean Villanueva)
•
All partners are liable pro rata with all theirproperties and after partnership assets havebeen exhausted, for all partnership debts (
Art.1816
)
•
Any stipulation against personal liability ofpartners for partnership debts is void , except asamong them (
Art. 1817
)
•
All partners are liable solidarily with thepartnership for everything chargeable to thepartnership when caused by the wrongful act oromission of any partner acting in the ordinarycourse of business of the partnership or withauthority from the other partners and for partner'sact or misapplication of properties (
Art. 1824
)
•
A newly admitted partner into an existingpartnership is liable for all the obligations of thepartnership arising before his admission but outof partnership property shares (
Art. 1826
)
•
Partnership creditors are preferred to those ofeach of the partners as regards the partnershipproperty (
Art. 1827
)
•
Upon dissolution of the partnership, the partnershall contribute the amounts necessary to satisfythe partnership liabilities (
Art. 1839[4], [7]
)
PARTNERSHIP DISTINGUISHED FROM CO-OWNERSHIP AND CORPORATION
PARTNERSHIPCO-OWNERSHIPCORP
Creation
Created by acontract, bymereagreement ofthe partiesCreated bylawCreated bylaw
Juridical personal ity
Has a juridicalpersonalityseparate anddistinct fromthat of eachpartnerNone Has a juridicalpersonalityseparateand distinctfrom that ofeachstockholder
Purpose
Realization ofprofitsCommonenjoymentof a thingor rightDependson AOI
Duration/ Term of existenc e
No limitation 10 yearsmaximum50 yearsmaximum,extendibleto not morethan 50years inany oneinstance
Disposal / Transfer ability of interest
Partner maynot disposeof hisindividualinterestunlessagreed uponby allpartnersCo-ownermay freelydo soStockholder has aright totransfershareswithoutpriorconsent ofotherstockholders
Power to act with 3
rd
In absence ofstipulation tocontrary, aCo-ownercannotrepresentManagement is vestedwith the
QuickTime™ and aTIFF (Uncompressed) decompressorare needed to see this picture.
Civil Law Summer Reviewer
A
TENEO
C
ENTRAL
B
AR
O
PERATIONS
2007
Page 159 of 297
persons
partner maybindpartnership(each partneris agent ofpartnership)the co-ownershipBoard ofDirectors
Effect of death
Death ofpartnerresults indissolution ofpartnershipDeath ofco-ownerdoes notnecessarilydissolveco-ownershipDeath ofstockholderdoes notdissolvecorporation
Dissoluti on
May bedissolved atany time bythe will of anyor all of thepartnersMay bedissolvedanytime bythe will ofany or all ofthe co-ownersCan onlybedissolvedwith theconsent ofthe state
# of incor- porators
Minimum of 2personsMinimum of2 personsMinimum of5incorporators
Commen cement of juridical personal ity
From themoment ofexecution ofcontract ofpartnershipNone From dateof issuanceofcertificateofincorporation by theSEC
Heirs of Tan Eng Kee v. CA,
G.R. No. 126881,.
October 3, 2000
Particular partnership distinguished from joint venture
A particular partnership is distinguished from joint venture, to wit: 1) a joint venture (an American concept similar to our joint account) is a sort of informal partnership,with no firm name and no legal personality. In a joint account, the participating merchants can transact business under their own name, and can be individually liable therefore; and 2) usually, but not necessarily a joint venture is limited to a single transaction, although the business of pursuing to a successful termination may continue for a number of years; a partnership generally relates to a continuing business of various transactions of a certain kind.It would seem that under Philippine law, a joint venture is a
FORM of PARTNERSHIP
, specifically a particular partnership which has for its object specific undertaking.
Aurbach v. Sanitary Wares,
180 SCRA 130 (1989)
The Supreme Court has, however, recognized a distinction between these two business forms and has held that although a corporation cannot enter into a partnership, it may, however, engage in a joint venture with others.
WEAKNESSES OF A PARTNERSHIP
(Dean Villanueva)
•
Partners are co-owners of the partnershipproperties and enjoy personal possession (
Art.1811
)
•
Partners may individually dispose of real propertyof the partnership even when in partnershipname (
Art. 1819
)
•
Dissolution of the partnership can come about bythe change in the relationship of the partners,such as when a partner chosses to cease beingpart of the partnership (
Art. 1828, 1830[1]b
)
•
Expulsion of partner dissolves the partnership(
Art. 1830[1]d
)
•
Dissolved by the loss of the thing promised to becontributed to the partnership (
Art. 1830[4]
)
•
Death, insolvency, or civil interdiction of a partnerdissolves the partnership (
Art. 1830 [5],[6],[7]
)
•
Petition by partner will dissolve the partnershipwhen a partner has been declared insane; or thepartner has become incapable of performing hispart of the partnership contract; a partner hasbeen found guilty of such conduct as tends toaffect prejudicially the partnership business;partner willfully or persistently commits a breachof partnership agreement; the partnershipbusiness can only be carried at a loss; otherequitable reasons (
Art. 1831
)
NOTE:
•
SEC Opinion, 28 April 1995:
The death of apartner, as a general rule, dissolves thepartnership by operation of law, except if thearticles of partnership stipulate for thecontinuance of the partnership relations uponthe death of any of the partners.
•
SEC Opinion, 5 August 1997:
If theremaining partners of the dissolvedpartnership intended for all legal intents andpurposes, to continue the partnershipbusiness even after the death of a partner,there is continuity of personality of thepartnership as there exists a "partnership atwill."
of 00
Ateneo Central Bar Operations 2007 Civil Law Summer Reviewer
6,330 Reads
Info and Rating
Leave a Comment
walang laman??? sayang lang doc na inupload ko.