Professional Documents
Culture Documents
CHAPTER I
By: Atty. John Richard A. Delos Reyes
PARTNERSHIP
GENERAL PROVISIONS
(ARTS. 1767-1783, NEW CIVIL CODE)
Art. 1767
Two or more persons may also form a partnership for the exercise of a profession.
Definition of Partnership
2. Bilateral – formed by two or more persons creating reciprocal rights and obligations.
5. Onerous – contributions in the form of either money, property and/or industry must be made.
6. Commutative – the undertaking of each partner is considered as the equivalent of that of the others.
7. Principal – its existence or validity does not depend on some other contract.
Elements of Partnership
1. Intention to form a contract of partnership;
3. Community of interests.
Essential Requisites
2. The partners must have legal capacity to enter into the contract;
a. Partnership as partner – There is no prohibition against a partnership being a
partner in another partnership.
b. Corporation as partner – A corporation is without capacity or power to enter into a
contract of partnership, unless authorized by a statute or by its charter. The Supreme
Court, however, has recognized the distinction between a partnership and joint venture,
and has held that although a corporation cannot enter into a partnership contract, it
may, however, engage in a joint venture if the nature of the venture is authorized by its
charter. (Mendiola v. Court of Appeals, G.R. No. 159333, July 31, 2006)
Essential Requisites
Two or more persons may also form a partnership for the exercise of a
profession. The right to practice a profession is not a natural or
constitutional right but a privilege or franchise which may be enjoyed only
under such terms as the State may deem necessary.
Transparency of the Articles of Partnership
The Articles must not be kept secret among the partners; otherwise, the
association shall have no legal personality and shall be governed by the
provisions of the Civil Code relating to co-ownership.
Art. 1768
The partnership has a juridical personality separate and distinct from that of
each of the partner.
Partnership as a juridical person
General Rule: Persons who are partners as between themselves are partners
as to third persons.
Generally, the converse is true: if they are not partners between themselves,
they cannot be partners as to third persons. Partnership is a matter of intention,
each partner giving his consent to become a partner. However, whether a
partnership exists between the parties is a factual matter. Where parties declare
they are not partners, this, as a rule, settles the question between them.
Persons not partners as to each other
Where a person misleads third persons into believing that they are partners in a non-
existent partnership, they become subject to liabilities of partners. Whether or not the
parties call their relationship or believe it to be a partnership is immaterial. Thus, with the
exception of partnership by estoppel, a partnership cannot exist as to third persons if no
contract of partnership has been entered into between the parties themselves.
Illustration:
If A and B are not partners as to each other, neither will they be partners
with respect to C, a third person. But if A, with the consent of B, represents
to C that they are partners, then A and B will be considered partners as to C
even if they are not really partners.
Co-ownership or co-possession
There is co-ownership whenever the ownership of an undivided thing or right belongs to different persons.
Co-ownership does not of itself establish the existence of a partnership, although it is one of its essential elements. This is
true even if profits are derived from the joint ownership.
The profits must be derived from the operation of business by the members of the association and not merely from
property ownership. The law does not imply a partnership between co-owners because of the fact that they develop or
operate a common property, since they may rightfully do this by virtue of their respective titles or common dominion over
the property. There must be a clear intent to form a partnership.
Partners have a well-defined fiduciary relationship between them. Co-owners do not. Should there be dispute; the remedy
of partners is an action for dissolution, termination and accounting. For co-owners it would be one, for instance, for non-
performance of the contract. People can become co-owners without a contract but they cannot become partners without
one.
Illustration:
O, the owner of a passenger jeepney, agrees with D, a driver, that the latter
shall have full control and use of the jeepney to carry passengers, pay for
gasoline and oil, and shoulder the cost of repairs, and that the gross receipts
are to be divided between them
Is there a partnership formed?
No.
The sharing of gross returns does not of itself establish a partnership, whether or not the
persons sharing them have a joint or common right or interest in any property from which
the returns are derived.
Reason for the rule: In a partnership, the partners share profits after satisfying all of the
partnership liabilities. Partners are interested in both failures and successes; it is the chance
of loss or gain that characterizes a business. Where the contract requires a given portion of
gross returns to be paid over, the portion may be paid over as commission, wages, rent, etc.
Art. 1770
A partnership must have a lawful object or purpose, and must be
established for the common benefit or interest of the partners.
When an unlawful partnership is dissolved by a judicial decree, the
profits shall be confiscated in favor of the State, without prejudice to the
provisions of the Penal Code governing the confiscation of the instruments
and effects of a crime.
Object or Purpose of Partnership
1. The contract is void and the partnership never existed in the eyes of the law;
2. The profits shall be confiscated in favor of the government;
3. The instruments or tools and proceeds of the crime shall also be forfeited in favor of
the government;
4. The contributions of the partners shall not be confiscated unless they fall under #3.
Right to receive profits where partnership is unlawful
Law does not permit action for obtaining earnings from an unlawful
partnership because for that purpose, the partner will have to base his action upon
the partnership contract, which is null and without legal existence by reason of its
unlawful object; and it is self-evident that what does not exist cannot be a cause
of action.
Profits earned do not constitute or represent the partner’s contribution. It
would be immoral and unjust for the law to permit a profit from an industry
prohibited by it. Therefore, there cannot be no accounting demanded of a partner
for the profits which may be in his hands, nor can there be recovery.
Effect of subsequent illegality of partnership business
Contract will not be nullified. Where the business for which the
partnership is formed is legal when the partnership is entered into, but
afterward becomes illegal, an accounting may be had as to the business
transacted prior to such time.
Form of partnership contract
General rule:
No special form is required for the validity or existence of the contract of
partnership. The partnership contract may be made orally or in writing
regardless of the value of the contributions.
Exceptions
1. Where real property or real right is contributed: The execution of a public instrument is necessary for validity of
contract of partnership. To affect third persons, the transfer of real property to the partnership must be duly registered in
the Registry of Property.
2. When partnership agreement covered by the Statute of Frauds: An agreement to enter in a partnership at a future time,
which by its term is not to be performed within a year from the making thereof, is covered by the Statute of Frauds. Such
agreement is unenforceable unless it is in writing or at least evidenced by some note or memorandum.
Illustration:
Q: Today, A and J orally agreed to form a partnership one and one half years from today, each one to contribute P1,000. If
at the arrival of the period, J refuse to go ahead with the agreement, can A enforce the agreement?
A: No. Since the agreement is to be enforced after one (1) year form the making thereof, the same should be in writing as
prescribed under the Statute of Frauds.
3. Limited partnership which cannot be constituted orally: The requirements of the statute must be substantially
complied with; otherwise, the liability of the limited partners becomes the same as that of general partners.
Registration of Partnership
However, failure to comply with the above requirements does not prevent the formation of the
partnership or affect its liability and that of the partners to third persons. But any partner is granted
the right by law to compel each other to execute the contract in a public instrument.
Registration of Partnership
1. As to object
• Universal partnership. (Art. 1777)
a. Of all present property. (Art. 1778)
b. Of profits. (Art. 1780)
• Particular partnership. One which has for its object:
a. Determinate things;
b. Their use and fruits;
c. A specific undertaking; and
d. The exercise of a profession or occupation (Art. 1783).
Classifications of Partnership
2. As to liability
• General partner: one whose liability to third persons extends to his separate property.
• Limited partner: one whose liability to third persons is limited to his capital contribution.
3. As to management
• Managing partner: one who manages the business or affairs of the partnership.
• Silent partner: one who does not take any active part in the business although he may be known
to be a partner; thus, he need not be a secret partner.
• Liquidating partner: one who takes charge of the winding up of partnership affairs upon
dissolution.
Kinds of partners
5. As to membership
• Real partner: one who is really a contributing member of an existing legal partnership;
• Partner by estoppel: a quasi-partner; one who is not really a partner but is liable as a partner for the
protection of innocent third persons. He is one represented as being a partner but who is not so between the
partners themselves.
Kinds of partners
6. As to nature of membership
• Original partner: one who is a member of the partnership from the time of its commencement as a
juridical person.
• Incoming partner: one who becomes a member subsequent to the establishment of the firm or one
who is about to be admitted by the consent of all the members.
• Continuing partner: one who continues the business of a partnership after it has been dissolved by
reason of the admission of a new partner, or the retirement, death or expulsion of one or more partners.
• Retiring partner: one withdrawn from the partnership; a withdrawing partner.
• Surviving partner: one who remains after a partnership has been dissolved by the death of any
partner.
• Subpartner: one who, not being a member of the partnership, contracts with a partner with reference
to the latter’s share in the partnership.
Universal partnership of all present property explained
A universal partnership of profits is one which comprises all that the partners
may acquire by their industry or work during the existence of the partnership and
the usufruct of movable or immovable property which each of the partners may
possess at the time of the celebration of the contract. In this kind of partnership,
the following become the common property of all the partners:
a) Property which belonged to each of them at the time of the constitution of
the partnership;
b) Profits which they may acquire from the property contributed.
Contribution of future property
General rule:
Future properties cannot be contributed. The very essence of the contract of
partnership that the properties contributed be included in the partnership requires the
contribution of determinate things. The position of a partner is like that of a donor,
and donations cannot comprehend future property.
Thus, property subsequently acquired by inheritance, legacy, and donation cannot
be included by stipulation except the fruits thereof. Hence, any stipulation including
property so acquired is void. Profits from other sources (not from properties
contributed) will become common property only if there is a stipulation to that effect.
Illustration:
Q: Partners A and B entered into a universal partnership of all present property. No stipulation
was made regarding other properties. Subsequently, A received a parcel of land by inheritance
from his father; and another parcel of land from Batangas State University as remuneration for
A’s work as a professor therein.
May the two (2) parcels of land and their fruits be enjoyed by the partnership?
A: No, because there was no stipulation regarding future properties or their fruits. If there be a
stipulation, the land acquired as salary as well as its fruits will belong to the partnership; but the
land acquired by inheritance will not belong to the partnership since this cannot be stipulated
upon.
Universal partnership of profits explained
A universal partnership of profits is one which comprises all that the partners may
acquire by their industry or work during the existence of the partnership and the usufruct
of movable or immovable property which each of the partners may possess at the time
of the celebration of the contract.
The following become the common property of all partners:
1. All of which the partners may acquire by their industry or work during the existence
of the partnership; and
2. The usufruct of movable or immovable property which each of the partners may
possess at the time of the celebration of the contract.
Ownership of present and future property
The partners retain their ownership over their present and future
property. What passes to the partnership are the profits or income and the
use or usufruct of the same. Consequently, upon dissolution, such property is
returned to the partners who own it.
Fruits of property subsequently acquired by the partners do not belong to
the partnership. Such profits, however, may be included by express
stipulation.
Illustration: