Vous êtes sur la page 1sur 52

ATENEO CENTRAL BAR OPERATIONS 2007

Civil Law

SUMMER REVIEWER
HIP: the same
among the
CHAPTER There shall parties.
1: be a
GENERAL partnership It is also
PROVISIO whenever: required that
NS the articles
There is a of
meeting of partnership
must NOT
PARTNERS the minds; be kept
HIP - a To form a
common SECRET
contract among the
wherein two fund; members;
or more With
intention that otherwise,
persons the
bind profits (and
association
themselves losses) will shall have
to contributebe divided no legal
money, among the
personality
property, or contracting and shall be
industry to a parties. governed by
common the
fund, with ESSENTIAL provisions
the intention FEATURES: on CO-
of dividing OWNERSHI
the profits There must P (Art.
among be a VALID 1775).
themselves. CONTRACT. "kept
(see Art. The parties secret
1767, CC) must have among the
LEGAL members"
CAPACITY = secrecy
(General to enter into directed not
Profession the contract. to third
al persons but
Partnershi There must to some of
p, be a mutual the partners
Art.17672) contribution
of money, CHARACTE
Two or property, or RISTICS:
more industry to a
persons COMMON
may also FUND. QuickTime and a
1. Essentially
form a There must TIFF
contractual(Unco
partnership be a
mpressed)
decompressor
LAWFUL innature
for the (Art. 1767,
exercise of OBJECT. are needed to see this
picture.
a The purpose
1784)
profession. or primary Separate
purpose
juridical
must be to
ELEMENTS obtain personality
OF A (Art. 1768)
PROFITS
PARTNERS and DIVIDE Delectus
personae
Mutual money or
Agency property
(Art. 1803) (Art. 1772)
Personal
liability of Public
partners for instrument is
partnership CHAPTER necessary
debts 2: Must be
FORM OF OBLIGATIO registered
PARTNERS NS OF with SEC
HIP PARTNERS
CONTRAC NOTE:
T
Art. 1784. A SEC
GENERAL partnership Opinion, 1
RULE: No begins from June 1960:
special form the moment For
is required of the purposes of
for the execution convenience
validity of a of the in dealing
contract. contract, with
(Art. 1356) unless it is government
otherwise offices and
stipulated. financial
institutions,
EXCEPTION registration
S: of
partnership
Where having a
immovable capital of
property/rea less than
l rights are Php 3,000 is
contributed recommend
(Art. 1771) ed.
Public
instrument is SEPARATE
necessary JURIDICAL
Inventory of PERSONAL
the property ITY
contributed
must be
made,
signed by the
parties and
attached to
the public
instrument
otherwise it
is VOID
When the
contract
falls under
the
coverage of
the Statute
of Frauds
(Art. 1409)
Where
capital is
P3,000 or
more, in
separate bring civil or
and distinct criminal
form that of actions,
each of the in conformity
partners, with the
even in laws and
case of regulations
failure to of their
comply with organization
the . (See Art.
requirement 46)
s of Article
1772, first PRINCIPLE
paragraph. OF
DELECTUS
As a PERSONAR
JURIDICAL UM
PERSON, a
partnership DELECTUS
may: PERSONAE
The
acquire and selection or
possess choice of the
Art. 1768. property of person.
The all kinds;
partnershi incur Implication
p has a obligations; s: (Dean
juridical and Villanueva)
personality
Del Elean anie Tajan, John
Castill or Paul Lim; Subject
Adviser o ; Mateo Head: Thea Marie
: Dean Heads: ; Jimenez; Pledgees:
Cynthi Joy Under Naealla Rose
a Marie studie Bainto, Sandra
Roxas- Ponsa s: Joy May Maclang
ran, Steph
Civil Law instances of
dissolution of the
Summer partnership upon
Reviewer change of
contractual
relationship.)
ATENEO
CENTRAL BAR
OPERATIONS Ortega v. CA, G.R.
2007 No. 109248, July
3, 1995
The assignment
of a partner of his
share does not Doctrine of
make assignee a Delectus
partner (Art. 1804 Personae:
and 1813)

The existence of
The birth and life of
the partnership is
a partnership at
closely tied-up to
will is predicated
the particular
on the mutual
contractual
desire and consent
relationship of the
of the partners.
partners (see
The right to makes the
choose with partnership liable
whom a person (Art. 1822)
wishes to
associate himself Partnership bound
is the very to make good
foundation and losses for acts or
essence of that misapplications of
partnership. partners (Art.
1823)

MEANING of UNLIMITED
MUTUAL LIABILITY
AGENCY (According to
Dean Villanueva)
(According to All partners are
Dean Villanueva) liable pro rata with
all their properties
In the absence of and after
contractual partnership assets
stipulation, all have been
partners shall be exhausted, for all
considered partnership debts
agents and (Art. 1816)
whatever any one
of them may do Any stipulation
alone shall bind against personal
the partnership liability of partners
(Art. 1803[1], for partnership
1818) debts is void ,
except as
Partners can
among them (Art.
dispose of 1817QuickTim)e and a TIFF
partnership (Uncompressed) decompressor

property even
when in All partners
are
partnership name arenededliabletoseethi
(Art. 1819) s picture
solidarily. with
the partnership for
An admission or everything
representation chargeable to the
made by any partnership when
partner caused by the
concerning wrongful act or
partnership affairs omission of any
is evidence partner acting in
against the the ordinary course
partnership (Art. of business of the
1820) partnership or with
authority from the
Notice to any other partners and
partner of any for partner's act or
matter relating to misapplication of
partnership affairs properties (Art.
is notice to the 1824)
partnership (Art.
1821)
Wrongful act or
omission of any
partner acting for
partnership affairs
A newly admitted
partner into an
existing
partnership is
liable for all the
obligations of the
partnership
arising before his
admission but out OWNERS
of partnership
property shares
(Art. 1826)

Partnership
creditors are
preferred to those HIP
of each of the
partners as
regards the
partnership
property (Art.
1827)

Upon dissolution
of the partnership,
the partners hall
contribute the
amounts
necessary to
satisfy the HIP
partnership
liabilities (Art.
1839[4], [7])

PARTNERSHIP
DISTINGUISHED
FROM CO-
OWNERSHIP
AND
CORPORATION

PARTNERS Creation

Created by a
CO-
CORP Created by

Created by

contract, by

law

law
personality

mere

separate and

separate
agreement of

distinct from

the parties and distinct

that of each

Juridical

Has a
from that of

None

Has a
partner

personal

juridical
each

juridical

ity

personality
stockholder
Purpose existenc

Realization of

Common

Depends
extendible

e
profits

enjoyment

on AOI

to not more

of a thing

than 50

or right

years in
Duration/

No limitation

10 years

50 years
any one
Term of

maximum

maximum,
instance
prior
Disposal

Partner may
by all
Co-owner

Stockholde
consent of
/

not dispose

may freely partners

r has a

Transfer other

of his

do so

right to

ability of
stockholder
individual

transfer

interest

interest
s

Power to
shares In absence of

Co-owner

Manageme
unless
act with

stipulation to
without
cannot

nt is vested
agreed upon

3rd
contrary, a
with the
represent
Page 158 of 297

Civil Law corporation


Summer
Reviewer co-

ATENEO
CENTRAL BAR
OPERATIONS ownership
2007
Dissoluti
persons May be
partner may May be
the co- Can only
Board of on
dissolved at
dissolved
bind
be
ownership
Directors
any time by
anytime by
partnership
dissolved

the will of any


the will of
(each partner with the

or all of the
any or all of
is agent of consent of

partners
the co-
the state
partnership)

owners
Effect of
Death of
# of
Death of
Minimum of 2
Death of
Minimum of
death
Minimum of
partner
incor-
co-owner
persons
stockholder
2 persons
5
results in porators
does not
does not
incorporato
dissolution of
necessarily
dissolve

partnership rs
dissolve Commen
From the legal personality.
None In a joint account,
From date the participating
cement merchants can
moment of transact business
under their own
of issuance name, and can be
of individually liable
execution of therefore; and

2) usually, but not


of necessarily a joint venture is
juridical
contract of QuickTime and a

limited to a singleTIFFtransaction,
certificate (Ucompressed)decompressor
although the
personal business

partnership are eeded to see this picture.

of of pursuing to a
ity successful
termination may
continue for a
incorporati number of years;
a partnership
generally relates
to a continuing
business of
on by the various
transactions of a
certain kind.

SEC
It would seem that
under Philippine
Heirs of Tan Eng law, a joint
Kee v. CA, G.R. venture is a
No. 126881,. FORM of
October 3, 2000 PARTNERSHIP,
specifically a

Particular
partnership
distinguished
from joint venture

particular
A particular partnership which
partnership is has for its object
distinguished from specific
joint venture, to wit: undertaking.

1) a joint venture Aurbach v.


(an American Sanitary Wares,
concept similar to 180 SCRA 130
our joint account) is (1989) The
a sort of informal Supreme Court
partnership, with no has, however,
firm name and no recognized a
distinction between will dissolve the
these two business partnership when
forms and has held a partner has
that although a been declared
corporation cannot insane; or the
enter into a partner has
partnership, it may, become incapable
however, engage in of performing his
a joint venture with part of the
others. partnership
contract; a partner
has been found
WEAKNESSES OF guilty of such
A PARTNERSHIP conduct as tends
to affect
prejudicially the
(Dean Villanueva) partnership
business; partner
Partners are co- willfully or
owners of the persistently
partnership commits a breach
properties and of partnership
enjoy personal agreement; the
possession (Art. partnership
1811) business can only
be carried at a
Partners may loss; other
individually dispose equitable reasons
of real property of (Art. 1831)
the partnership
even when in NOTE:
partnership name
(Art. 1819) SEC Opinion, 28
Dissolution of the April 1995: The
partnership can death of a partner,
come about by the as a general rule,
change in the dissolves the
relationship of the partnership by
partners, such as operation of law,
when a partner except if the
chosses to cease articles of
being part of the partnership
partnership (Art. stipulate for the
1828, 1830[1]b) continuance of the
Expulsion of partnership
partner dissolves relations upon the
the partnership death of any of the
(Art. 1830[1]d) partners.
Dissolved by the
loss of the thing
promised to be SEC Opinion, 5
contributed to the August 1997: If
partnership (Art. the remaining
1830[4]) partners of the
dissolved
partnership
Death, insolvency, intended for all
or civil interdiction legal intents and
of a partner purposes, to
dissolves the continue the
partnership (Art. partnership
1830 [5],[6],[7]) business even
Petition by partner
after the death of a partnership as
partner, there is there exists a
continuity of "partnership at
personality of the will."

Page 159 of 297


Civil Law interest in any
property from
Summer which the returns
Reviewer are derived;

ATENEO The receipt by a


person of a share
CENTRAL BAR of the profits of a
OPERATIONS business is prima
2007 facie evidence
that he is a
RULES TO partner in the
DETERMINE business,
EXISTENCE OF UNLESS such
were received in
payment:
PARTNERSHIP
As debt by
installments or
GENERAL RULE: otherwise;
Persons who are As wages or rent;
NOT partners as As annuity;
between As interest on
themselves, loan;
CANNOT be As consideration
partners as to third for sale of goodwill
persons. (Art. of business/other
1769(1)) property by
EXCEPTION: installments

Partnership by
Estoppel under
Art. 1770. A
Article 1825
partnership must
have a lawful
OTHER RULES object or
TO DETERMINE purpose, and
WHETHER A must be
established for
PARTNERSHIP the common
EXISTS: (See Art. benefit or
1769) interest of the
Co-ownership or partners.
co-possession
does not of itself When an
establish a unlawful
partnership partnership is
dissolved by a
The sharing of judicial decree,
gross returns does the profits
not of itself
establish a shall be
partnership, confiscated in
whether or not the favor of the
persons sharing State, without
them have a joint prejudice to the
or common right or provisions of the
Where a part of
Penal Code the business of a
governing the partnership is
confiscation of legal and a part
the instruments illegal, an account
and effects of a of that which is
crime. legal may be had.
Where, without
EFFECTS OF AN the knowledge or
UNLAWFUL participation of the
PARTNERSHIP: 1. partners, the firm's
The contract is profits in a lawful
void ab initio and business have
the been increased by
wrongful acts, the
partnership never innocent partners
existed in the eyes are not precluded
of the law. (Art. as against the
1409[1]) guilty partners
from recovering
2. The profits their share of the
profits. (De Leon,
shall be
p. 65)
confiscated in
favor of the
government. (Art.
1770) WHO MAY BE
3. The instruments or PARTNERS
tools and proceeds of the
QuickTime and a
crime
shallTIFFalso(Uncmprbessed)forfeit
GENERAL RULE:
eddcompressorin favor of the Any person
are needed to see this picture.
capacitated to
government. (Art.
contract may enter
1770, Art. 45-
into a contract of
RPC)
partnership.
The contributions
EXCEPTIONS:
of the partners
shall not be
confiscated unless Persons who are
they fall under no. prohibited from
3. (See giving each other
any donation or
advantage
Arts. 1411 and
cannot enter into
1412)
a universal
partnership. (Art.
NOTE: Judicial 1782)
decree is not Persons
necessary to suffering from
dissolve an civil interdiction.
unlawful Persons who
partnership. cannot give
consent to a
contract:

Minors
insane persons
deaf-mutes who
EFFECT OF
do not know how
PARTIAL
to write
ILLEGALITY:
MAY
CORPORATIONS the business
ENTER INTO venture to be
undertaken by the
PARTNERSHIP? partnership is in
line with the
Philippine business
Corporate Law authorized by the
(2001) by Dean charter or AoI.
Villanueva (p.
902) citing various If it is a foreign
SEC Opinions: corporation, it
must obtain a
Corporations may license to transact
enter into business in the
partnership country in
agreements on the accordance with
following the Corporation
conditions: Code of the
Authority to enter Philippines.
into a partnership
relation is
expressly WHEN
conferred by the IMMOVABLES
charter or the OR REAL
articles of RIGHTS
incorporation (AoI),
and the nature of CONTRIBUTED

Page 160 of 297


Civil Law appearance in
public instrument
Summer and SEC
Reviewer Registration will
not affect the
liability of the
ATENEO partnership and
CENTRAL BAR the members
OPERATIONS thereof to third
2007 persons. (Art.
1772 2)
Art. 1773. A
contract of EXCEPTION:
partnership is When
void, whenever IMMOVABLE
immovable PROPERTY/
property is REAL RIGHTS
contributed are contributed,
thereto, if an *public
inventory of said instrument +
property is not inventory*
made, signed by
the parties, and made and signed
attached to the by the parties and
public attached to the
instrument. public instrument
(Arts. 1771 and
GENERAL RULE: 1773) is required
Failure to comply for the benefit of
with the third persons.
requirement of
EFFECT OF
ABSENCE OF No public
REQUIREMENTS
UNDER VOID
ARTICLES 1771
AND 1773
VOID

CONDITION OF Instrument, No

Inventory

PARTNERSHIP

WHERE REAL

BAUTISTA, E.

DE LEON

With Public
PROPERTY IS
VOID

VOID

Instrument, No

CONTRIBUTED

Inventory
Instrument, With

registry of

Inventory

VALID
property;

but either party


nonetheless,

may compel
partnership

execution of
agreement may

public instrument
be enforced (cf.

No Public

so it may be
Arts. 1356 to

registered in the QuickTime and a

VOID
1358)

TIFF (Uncompressed) decompressor

are needed to see this picture. (Source: Bar


Review Notes for
Partnership Law
by Atty. Villareal)

NOTE:
With Public
Torres v. CA, 320
SCRA 428 (1999)

VALID

Partnerships
void under
Art.1773, in
relation Art. 1771
may still be
considered either
de facto or
estoppel
partnerships vis--
Instrument, With vis third persons;
may even be
VALID treated as an
ordinary contract
from which rights
and obligations
may validly arise,
although not
exactly a
Inventory partnership under
the Civil Code.

Failure to
prepare an
inventory of the
immovable
property
contributed, in
spite of article
1773 declaring the comprises all that
partnership void the partners may
would not render acquire by their
the partnership industry or work
void when: during the
NO THIRD PARTY existence of the
INVOLVED (since partnership
Art. 1773 was
intended for the NOTE: Persons
protection of 3rd who are
parties; prohibited from
Partners have giving donations
MADE A CLAIM or advantage to
ON THE each other cannot
PARTNERSHIP enter into a
AGREEMENT. universal
partnership. (Art.
1782)
CLASSIFICATION
S OF 2. PARTICULAR
PARTNERSHIP PARTNERSHIP
has for its
AS TO EXTENT objects:
OF ITS SUBJECT
MATTER Determinate
things
UNIVERSAL Their use or fruits
PARTNERSHIP Specific
undertaking
UNIVERSAL Exercise of
PARTNERSHIP OF profession or
ALL PRESENT vocation
PROPERTY -
comprises the AS TO LIABILITY
following: OF PARTNERS
Property which
belonged to each 1. GENERAL
of the partners at PARTNERSHIP
the time of the consists of
constitution of the general partners
partnership who are liable pro
Profits which they rata and
may acquire from subsidiarily and
all property sometimes
contributed solidarily with their
UNIVERSAL separate property
PARTNERSHIP OF for partnership
PROFITS - debts.
Page 161 of 297

Civil Law 2. LIMITED


PARTNERSHIP
Summer one formed by 2
Reviewer or more persons
having as
members one or
ATENEO more general
CENTRAL BAR partners and one
OPERATIONS or more limited
2007 partners, the
latter not being
personally liable
for the obligations OR NON
of the partnership TRADING
PARTNERSHIP
one formed for
AS TO the exercise of a
DURATION profession

PARTNERSHIP KINDS OF
AT WILLone in PARTNERS:
which no time is
specified and is CAPITALIST
not formed for a one who
particular contributes
undertaking or money or
venture which property to the
may be common fund
terminated INDUSTRIAL
anytime by one who
mutual agreement contributes only
PARTNERSHIP his industry or
WITH A FIXED personal service
TERMthe term
for which the GENERALone
partnership is to whose liability to
exist is fixed or 3rd persons
agreed upon or extends to his
one formed for a separate property
particular LIMITEDone
undertaking whose liability to
3rd persons is
AS TO limited to his
LEGALITY OF capital
EXISTENCE contribution

DE JURE MANAGING
PARTNERSHIP one who
one which has manages the
complied with all affairs
the legal
the
QuickTi m and a

or
requirements for businessTIFF(Uncompresse
its establishment d)of

decompressorpartnership
are needed to see this picture.

DE FACTOone 6. LIQUIDATING
which has failed one who takes
to comply with all charge of the
the legal winding up of
requirements for partnership affairs
its establishment upon dissolution
7. PARTNERS
AS TO BY ESTOPPEL
PURPOSE one who is not
really a partner
COMMERCIAL but is liable as a
OR TRADING partner for the
PARTNERSHIP protection of
one formed for innocent 3rd
the transaction of persons
business

PROFESSIONAL
CONTINUING OBLIGATIONS
PARTNERone OF THE
who continues the PARTNERS TO
business of a ONE
partnership after it
has been ANOTHER
dissolved by
reason of the OBLIGATIONS
admission of a OF THE
new partner, PARTNERS
retirement, death AMONG
or expulsion of THEMSELVES
one of the
partners
1. PROMISED
CONTRIBUTION
SURVIVING
PARTNERone
who remains after Obligations with
a partnership has respect to
been dissolved by contribution of
death of any property:
partner
SUBPARTNER to contribute at
one who is not a the beginning of
member of the the partnership or
partnership who at the stipulated
contracts with a time the money,
partner with property or
reference to the industry which he
latter's share in may have
the partnership promised to
OSTENSIBLE contribute (Art.
one who takes 1786)
active part and
known to the To answer for
public as partner eviction in case
in the business the partnership is
deprived of the
SECRETone determinate
who takes active property
part in the contributed (Art.
business but is 1786)
not known to be a To answer to the
partner by outside partnership for
parties the fruits of the
SILENTone property the
who does not contribution of
take any active which he delayed,
part in the from the date they
business although should have been
he may be known contributed up to
to be a partner the time of actual
DORMANTone delivery (Art.
who does not 1786)
take active part in To preserve said
the business and property with the
is not known or diligence of a
held out as a good father of a
partner family pending
delivery to
partnership (Art.
1163) partnership for
any damage
To indemnify caused to it by
the retention
Page 162 of 297

Civil Law amount he may


have taken from
Summer the partnership
Reviewer coffers and
converted to his
own use
ATENEO To pay for the
CENTRAL BAR agreed or legal
OPERATIONS interest, if he fails
2007 to pay his
contribution on
time or in case he
of the same or by
takes any amount
the delay in its
from the common
contribution
fund and converts
(Arts. 1788,
it to his own use
1170)
To indemnify the
EFFECT OF
partnership for the
FAILURE TO
damages caused
CONTRIBUTE
to it by delay in
PROPERTY
the contribution or
PROMISED:
conversion of any
sum for his
Partners personal benefits
becomes ipso (See Art. 1788)
jure a debtor of
the partnership
2. FIDUCIARY
even in the
DUTY
absence of any
demand (See
Art. 1169[1]) A partnership is a
Remedy of the fiduciary relation
other partner is one entered
not rescission but into and to be
specific maintained on the
performance with basis of trust and
damages from confidence. With
defaulting partner that, a partner
(Art. 1788) must observe the
utmost good faith,
fairness, and
Obligations with
integrity in his
respect to
dealings with the
contribution of
others:
money and
money
converted to he cannot directly
personal use: or indirectly use
partnership assets
for his own
To contribute on
benefit;
the date fixed the
he cannot carry
amount he has
on a business of
undertaken to
the partnership for
contribute to the
his private
partnership
advantage;
To reimburse any
he cannot, in INDUSTRIAL
conducting the PARTNER
business of the CAPITALIST
partnership, take
any profit
clandestinely;
he
cannotQuickTimeobtainad
afor himself that he

TIFF (Uncompressed)
decompressor
PARTNER
are needed to see this picture.

should have obtained for the

partnership
(e.g.
business --cannot engage
opportunity) in
--cannot engage
in
he cannot carry
on another
business in
competition with
business (w/n
the partnership;
same line of
business (with
he cannot avail same
himself of
knowledge or
information which
may be properly
regarded as the business with the
property of the kind of business
partnership; with

partnership)
unless
the partnership)
for
PROHIBITION
AGAINST
ENGAGING
IN
partnership
COMPETITIVE expressly
BUSINESS his own account,

permits him to do
so.
unless there is a

(Art. 1789)
stipulation to the to the common
fund the profits he
derived from the
other business;
(Art. 1808)
he shall
personally bear
contrary. the losses; (Art.
1808)

he may be ousted
form the
partnership,
especially if there
was a warning.
( Art. 1808)
Obligations with
respect to
contribution to
partnership
capital:
CONSEQUENCE
S IF AN
INDUSTRIAL Partners must
PARTNER contribute equal
shares to the
capital of the
ENGAGES IN partnership unless
ANY BUSINESS: there is stipulation
(Art. 1789) to contrary (Art.
1790)
he can be Partners
excluded from the (capitalist) must
partnership; or contribute
the capitalist additional capital
partners can avail In case of
of the benefit he imminent loss to
obtained from the the business of
business, or the partnership
and there is no
the capitalist stipulation
partners have the otherwise; refusal
right to file an to do so shall
action for create an
damages against obligation on his
the industrial part to sell his
partner, in either interest to the
case. other

CONSEQUENCE partners (Art.


S IF THE 1790)
CAPITALIST Requisites:
PARTNER There is an
ENGAGES IN A imminent loss of
BUSINESS the business of
(which competes the partnership
with the business
of the The majority of
partnership): the capitalist
partners are of the
he may be opinion that an
required to bring additional
contribution to the would save the
common fund business
Page 163 of 297

Civil Law
Obligation of
Summer partner who
Reviewer receives share of
partnership credit
ATENEO
CENTRAL BAR Obliged to bring to
the partnership
OPERATIONS capital what he has
2007 received even
though he may
The capitalist have given receipt
partner refuses for his share only
deliberately to (Art. 1793)
contribute (not due
to financial Requisites:
inability)
A partner has
There is no received in whole
agreement to the or in part, his share
contrary of the partnership
Obligation of credit
managing The other partners
partners who have not collected
collects debt their shares
from person who
also owed the The partnership
partnership (Art. debtor has become
1792) insolvent

Apply sum BEARING THE


collected to 2 RISK OF LOSS
credits in OF THINGS
proportion to their
amounts
CONTRIBUTED
If he received it for
(Art. 1795)
the account of
partnership, the
whole sum shall be Specific
applied to and
partnership credit determinate
Requisites: things
There exists at Risk is borne by
least 2 debts, one
where the which are not
collecting partner is fungible where only
creditor and the partner
other, where the
partnership is the the use is
creditor contributed
Both debts are
demandable
The partner who
collects is
authorized to
manage and Specific
actually manages and
the partnership determinate
things determinate
things
Risk is borne by
Risk is borne by
the ownership of
which is which are not
fungible where only
partnership
partner
transferred to the
partnership the use is
contributed

QuickTime and a

Risk is borne by

TIFF (Unco press d) decompressor

Fungible things (consumable )


RULES FOR
DISTRIBUTION
OF PROFITS AND

are needed to see this picture. LOSSES (See Art.


partnership 1797)

Things contributed
to be sold
PROFITS

Risk is borne by LOSSES


With
According to
According to
agreement
agreement
agreement
Without
partnership 1.
Share of
Things brought and 1.
appraised in If sharing of
Risk is borne by agreement

the inventory capitalist

profits is

partnership
partner is in
Specific
and stipulated -
proportion to his 3.
Purely
apply to

capital
industrial
sharing of

contribution
partner not
losses

2.
Share of
2.
If no profit liable for

industrial

sharing losses

partner is not Art. 1799. A


stipulation which
stipulated - excludes one or
more partners
from any share in
the profits and
fixed - as may losses is void.

losses shall NOTE: Stipulation


exempting a
partner from losses
be just and should be allowed.
If a person can
be borne make a gift to
another, there is no
sound reason why
a person cannot
equitable under also agree to bear
all the losses. Of
according to course, as far as
THIRD PERSONS
are concerned, any
the such stipulation
may be properly
capital declared void.

(De Leon, pp. 124-


125, citing Espiritu
circumstances and Sibal)

contribution RIGHTS AND


OBLIGATIONS cause;
WITH RESPECT revoke power
TO
MANAGEMENT Revocable only

Partner is
Power of when in bad
Vote of
appointed
managing
partners faith
manager in the
partner is Partner is
representing Power is
articles of
irrevocable appointed
controlling revocable any
partnership
without manager after
interest time for any

just/lawful constitution of
necessary to cause

Page 164 of 297

Civil Law
case of tie,
Summer duties/stipulation
Reviewer
ATENEO decision of
CENTRAL BAR that each shall
OPERATIONS not
2007
partners
partnership
act w/o the other's

owning
2 or more persons consent
Each may
In case of
entrusted with
execute all acts controlling
opposition,
management of
of
interest shall
decision of
partnership
administration
majority shall
without prevail
Stipulated that
Concurrence of
Absence or
prevail; In none of the
specification of all necessary for
disability of
managing interest of
the validity of
any one
partners shall act consent
acts partnership,
cannot be
w/o the consent of

required for
court's
alleged
others

alteration of
intervention
unless there

immovable
may be
is imminent

property
sought
danger of
Other rights and
obligations of
partners:
grave or
Right to associate
another person
with him in his
share without
irreparable consent of other
partners
(subpartnership)
Right to inspect
injury to and copy
partnership books
at any reasonable
hour

partnership Right to a formal


Manner of account as to
1. partnership affairs
All partners (even during
If refusal of existence of
management not partnership):

are agents If he is wrongfully


partner is excluded from
agreed upon partnership
business or
of the possession
manifestly of its
propertyQuickTimebyandh
isa copartners
TIFF (Uncompressed) decompressor

partnership b. If
areneed
prejudicial to right existsdtos
ee this
underpicture. the
2. terms of any
Unanimous agreement
of what remains
c. As provided by after partnership
art 1807 debts have been
paid
d. Whenever
other NATURE OF
circumstances PARTNER'S
render it just and RIGHT IN THE
reasonable PARTNERSHIP
a share in the
profits and surplus
4. Duty to
render on demand OBLIGATION OF
true and full PARTNERS
information WITH REGARD
affecting TO THIRD
partnership to any PERSONS
partner or legal
representative of
any Every partnership
shall operate
under a firm
name. Persons
who include their
names in the
deceased partner partnership name
or of any partner even if they are
under legal not members shall
disability be liable as a
partner
Duty to account to
the partnership as All partners shall
fiduciary be liable for
contractual
PROPERTY obligations of the
RIGHTS OF A partnership with
PARTNER their property,
after all
partnership assets
His rights in have been
specific exhausted:
partnership Pro rata
property Subsidiary
His interest in the Admission or
partnership representation
His right to made by any
participate in the partner
management (Art. concerning
1810) partnership affairs
within scope of his
NATURE OF authority is
PARTNER'S evidence against
RIGHT IN the partnership
SPECIFIC
PARTNERSHIP Notice to partner
PROPERTYa of any matter
partner has an relating to
equal right to partnership affairs
possession which operates as notice
is not assignable to partnership,
and such right is except in case of
limited to the share fraud:
Knowledge, of communicated it
partner acting in to the acting
the particular partner
matter, acquired Partners and the
while a partner partnership are
Knowledge of the solidary liable to
partner acting in 3rd persons for the
the particular partner's tort or
matter then breach of trust
present to his mind
Knowledge of any
Liability of
other partner who
incoming partner
reasonably could
is limited to:
and should have
Page 165 of 297

Civil Law
usual way
Summer the
Reviewer business

ATENEO agent
CENTRAL BAR and
may
OPERATIONS
2007 of the partnership

His share in the


partnership
execute
property for
acts
existing
with
obligations
His separate
property for
subsequent
obligations
Creditors of
partnership
preferred in
partnership
property & may
attach partner's
share in binding
partnership assets effect even
Every partner is an if
agent of the
partnership

POWER OF
PARTNER AS
AGENT OF
PARTNERSHIP

Acts for carrying


on in the
he has no
authority
Every
partner 3rd
is
an
business

authorized
by
other

in the usual way


Except:

when partners

2.
Acts

of
strict

person has
knowledge

dominion

of lack of authority or

1.
Act
w/c

is
not

Does ownership:
not
bind

apparently
for
the

partnership
unless
3.
Assign
partnership
carrying of
5.
Do an act w/c
would

property
in
trust
for make
it

impossible

creditors

to carry on
ordinary

4.
Dispose of good- business
will

of

of business

partnership
a

6.
Confess

a
partnership claim
or

judgement

liability

7.
Enter

8.
into Submit
partnership

compromise
claim
or

liability
to

concerning
restriction on
authority
arbitration

QuickTime and a
to 3rd persons
having

TIFF (Uncompressed)
decompressor

actual
or
presumptive
9.

are needed to see this picture.

knowledge
Renounce
claim of
of the

partnership
restrictions

Acts in
contravention of a
EFFECTS OF
Partnership not CONVEYANCE
liable OF REAL
PROPERTY
BELONGING TO
PARTNERSHIP

Title in
partnership name,
Conveyance 2.
passes Buyer
Conveyance
in
partnership had
title
but
partnership
name

knowledge
of
can recover if:

lack of authority
Title in
1. partnership name,
Conveyance was Conveyance

does
Conveyance
in
partner's
not pass title but
only
not in name
the
usual

equitable
interest,

way of business,

unless:

or
more
1. Conveyance
Conveyance was passes
partners,
Conveyance
in
title
but
partnership
name if
not in partner/partners
the in
usual can recover if:

whose name title


stands

1.
Conveyance was
way of business,

not in
or the
usual

way of business,
2.
Buyer
had

or

knowledge of lack
of

authority 2.
Buyer

Title in name of 1/ had


Title in name of all
partners,
Conveyance

will
Conveyance in
name of all
knowledge pass title
of

partners

lack of authority
Title in name of
1/more/all
Conveyance will
only
partners or 3rd
person in
pass
equitable
trust
for
partnership,
interest

Conveyance
executed
in
PARTNER BY
ESTOPPELby
words or conduct,
he does any of the
ff.:
partnership name
if in name Directly represents
himself to anyone
as a partner in an
existing
partnership or in a
non-existing
partnership
of partners Indirectly
represents himself
by consenting to
another
representing him
as a partner in an
existing
partnership or in a
non existing
partnership
Page 166 of 297
Civil Law who
represented
Summer partnership
Reviewer &
all
himself & all
ATENEO those who
CENTRAL BAR those
OPERATIONS represented
2007 made
representation
liable
ELEMENTS TO
consented;
ESTABLISH
LIABILITY AS A
PARTNER ON
GROUND OF pro-rata/jointly
ESTOPPEL:
Not
Defendant all
represented partners
himself as of
partner/represente
d by others as
such and not
denied/refuted by
existing
defendant
partnership
Plaintiff relied on
such
representation
Statement of
defendant not consents
refuted

LIABILITIES IN to
ESTOPPEL

All partners
representation

Partnership is
liable
consented to

No

existing
Person
representation
who
represented
partnership &
not
all
No himself liable &
those who
represented

existing
Person
made/consented
to was induced to
consented; join through any
of the vices of
consent
representation Demand an
separately accounting (only
None in case of
dissolution)
of
partners QuickTime and a TIFF
in (Uncompressed) decompressor
are needed to see this picture.
liable D)

RESPONSIBILIT
existing Y OF
partnership PARTNERSHIP
TO PARTNERS

1. To refund
consented the amounts
disbursed by
partner in behalf
of the partnership
+ corresponding
interest from the
time the expenses
are made (loans
and advances
made by a partner
ASSIGNMENT OF
to the partnership
INTEREST IN
aside from capital
PARTNERSHIP
contribution)

Assignment is
subject to three (3)
conditions:
made in good faith
for fair To answer for
consideration obligations
after a fair and partner may have
complete contracted in
disclosure of all good faith in the
important interest of the
information as to partnership
its value business

RIGHTS OF AN To answer for


ASSIGNEE: risks in
consequence of
Get whatever its management
assignor-partner
would have
obtained
Avail usual
CHAPTER 3:
remedies in case
DISSOLUTION
of fraud in the
AND WINDING
management
UP

Ask for annulment


DISSOLUTION
of contract of
change in the
assignment if he
relation of the
partners caused by assigned their
any partner interest/ charged
ceasing to be them for their
associated in the separate debts,
carrying on of the either before or
business; after the
partnership is not termination of any
terminated but specified term or
continues until the particular
winding up of undertaking
partnership affairs
is completed By the bona fide
expulsion of any
WINDING UP partner from the
process of settling business in
the business or accordance with
partnership affairs power conferred
after dissolution by the agreement
In contravention
TERMINATION of the agreement
that point when all between the
partnership affairs partners, where
are completely the circumstances
wound up and do not permit a
finally settled. It dissolution under
signifies the end of any other
the partnership life. provision of this
article, by the
CAUSES OF express will of any
DISSOLUTION: partner at any
time
Without violation of
the agreement By any event
between the which makes it
partners unlawful for
business to be
carried on/for the
By termination of members to carry
the definite term/ it on for the
particular partnership
undertaking Loss of specific
specified in the thing promised by
agreement partner before its
By the express will delivery
of any partner, who Death of any
must act in good partner
faith, when no Insolvency of a
definite term or partner/partnershi
particular p
undertaking is Civil interdiction of
specified any partner
By the express will Decree of court
of all the partners under art 1831
who have not

Page 167 of 297


dissolution
Partner in ff. cases:
continues to (1)
bind Transaction
partnership s in
even after connection
to winding up equitable
partnership
Civil Law Upon
application
Summer by
Reviewer purchaser of
partner's
ATENEO interest:
CENTRAL BAR
After
OPERATIONS termination
2007 of specified
term/particul
GROUNDS ar
FOR undertaking
DISSOLUTION
BY DECREE Anytime if
OF partnership
at will when
COURT (Art. interest was
1831) assigned/ch
arging order
Partner issued
declared
insane in any
judicial EFFECTS
proceeding or OF
shown to be of DISSOLUTI
unsound mind ON
Incapacity of
partner to AUTHORIT
perform his part Y OF
of the PARTNER
partnership TO BIND
contract PARTNERS
HIP
Partner guilty of
conduct GENERAL
prejudicial to RULE:
business of Authority of
partnership partners to
bind
Willful or partnership
persistent is
breach of terminated
partnership Exception:
agreement or Wind up
conduct which partnership
makes it affairs
reasonably Complete
impracticable to transaction
carry on s not
partnership finished
with him
Business can QUALIFICA
only be carried TIONS:
on at a loss
Other
With
circumstances
respect to
which render
partners
dissolution
Authority of partnership
partners to bind prior to
partnership by dissolution
new contract is &
immediately Had no
terminated knowledge/
when notice of
dissolution is dissolution,
not due to ACT, or
DEATH or Situation 2 -
INSOLVENCY Did not
(ADI) of extend
partner (art credit to
1833); partnership
If due to ADI,
partners are Had known
liable as if partnership
partnership not prior to
dissolved, dissolution
when the ff. Had no
concur: knowledge/
If cause is ACT notice of
of partner, dissolution/f
acting partner act of
must have dissolution
knowledge of not
such advertised
dissolutionQuickTi in a
meand a
TIFF (Uncompressed) decompressor
newspaper
ii. If of general
causerenededisto circulation in
seeDEATHthispicture. the place
or where
INSOLVENCY, partnership
acting partner is regularly
must have carried on
knowledge/
notice Partner
cannot bind
2. With the
respect to partnership
persons not anymore
partners (Art. after
1834) a. dissolution:
Where
dissolution
is due to
unlawfulnes
s to carry on
affairs/completi with
ng transactions business
unfinished (except:
Transactions winding up
which would of
bind partnership
partnership if affairs)
not dissolved,
when the other Where
party/obligee: partner has
Situation 1 - become
Had extended insolvent
credit to Where
partner dissolution
unauthorized to Had known
wind up partnership
partnership prior to
affairs, except dissolution
by transaction Had no
with one who: knowledge/
Situation 1 - notice of
Had extended dissolution/f
credit to act of
partnership prior dissolution
to dissolution not
& advertised
Had no in a
knowledge/noti newspaper
ce of of general
dissolution, or circulation in
Situation 2 - the place
Did not extend where
credit to partnership
partnership is regularly
prior to carried on
of
Page 168 297

Civil Law CONTRAVENTIO


N OF
Summer AGREEMENT:
Reviewer Apply partnership
property to
discharge
ATENEO liabilities of
CENTRAL BAR partnership
OPERATIONS
2007 Apply surplus, if
any to pay in cash
B. DISCHARGE the net amount
OF LIABILITY owed to partners

Dissolution does RIGHTS OF


not discharge PARTNER
existing liability of WHERE
partner, except by DISSOLUTION
agreement IN
between: CONTRAVENTIO
N OF
AGREEMENT:
Partner and
himself
Partner who did
not cause
person/partnershi
dissolution
p continuing the
wrongfully:
business
Apply partnership
partnership
property to
creditors
discharge
liabilities of
RIGHTS OF partnership
PARTNER Apply surplus, if
WHERE any to pay in cash
DISSOLUTION the net amount
NOT IN owed to partners
1. Right to
TIFF
lien(Ucompressed)onsurpl
Indemnity for usdecompreor of
damages caused partnership
are needed to see this picture.
by partner guilty property after
of wrongful satisfying
dissolution partnership
liabilities
Continue Right to
business in same subrogation in
name during place of creditors
agreed term after payment of
Posses partnership
partnership liabilities
property if
business is Right of
continued indemnification by
guilty partner
Partner who against all
wrongly caused partnership debts
dissolution: & liabilities
If business not SETTLEMENT
continued by OF ACCOUNTS
others - apply BETWEEN
partnership PARTNERS
property to
discharge ASSETS OF THE
liabilities of PARTNERSHIP:
partnership &
receive in cash
his share of
surplus less
damages caused
by his wrongful Partnership
dissolution property
If business (including
continued by goodwill)
others - have the
value of his Contributions of
interest at time of the partners
dissolution
ascertained and
paid in
cash/secured by ORDER OF
bond & be APPLICATION
released from all OF ASSETS:
existing/future
partnership Partnership
liabilities creditors
Partners as
RIGHTS OF creditors
INJURED Partners as
PARTNER investorsreturn
WHERE of capital
PARTNERSHIP contribution
CONTRACT IS
RESCINDED ON Partners as
GROUND OF investorsshare
FRAUD/MISREP of profits if any
RESENTATION
BY 1 D. WHEN
PARTY: BUSINESS OF
QuickTime and a
DISSOLVED partners who
PARTNERSHIP have not
IS CONTINUED: wrongfully
Creditors of old dissolved the
partnership are partnership
also creditors of
the new Legal
partnership which representative of
continues the last surviving
business of the partner
old one w/o
liquidation of the
partnership affairs
CHAPTER 4:
LIMITED
Creditors have an PARTNERSHIP
equitable lien on
the consideration
paid to the retiring CHARACTERIST
/deceased partner ICS:
by the purchaser
when Formed by
retiring/deceased compliance with
partner sold his statutory
interest w/o final requirements
settlement with One or more
creditors general partners
control the
Rights if business
retiring/estate of
deceased partner: One or more
To have the value general partners
of his interest contribute to the
ascertained as of capital and share
the date of in the profits but
dissolution do not participate
in the
To receive as management of
ordinary creditor the business and
the value of his are not personally
share in the liable for
dissolved partnership
partnership with obligations
interest or profits beyond their
attributable to use capital
of his right, at his contributions
option May ask for the
return of their
capital
PERSONS contributions
AUTHORIZED under conditions
TO WIND UP prescribed by law
Partnership debts
Partners are paid out of
designated by the common fund and
agreement the individual
In absence of properties of
agreement, all general partners
Page 169 of 297

Civil Law Reviewer


Summer
ATENEO
CENTRAL BAR in firm
OPERATIONS Name must
appear in
2007 name
firm name
DIFFERENCES Prohibition against
BETWEEN No prohibition
GENERAL AND against
LIMITED engaging in
PARTNER/PARTN business
ERSHIP engaging in
business
GENERAL Retirement, death,
LIMITED Does not have
Personally liable same
for insolvency,
Liability extends insanity of
only effect; rights
partnership gen partner
obligations dissolves
to his capital transferred to
legal
contributions partnership
When manner of representative
mgt. not
No participation in REQUIREMENTS
agreed upon, all FOR
gen FORMATION OF
management LIMITED
partners have an PARTNERSHIP:
equal
Certificate of
right in the mgt. of articles of the
the limited
partnership must
business state the ff.
matters:
Name of
Contribute cash,
partnership +
property
word "ltd."
Contribute cash or
Character of
or industry
business
property only, not
Location of
principal place of
industry business
Proper party to
Not proper party to
Name/place of
proceedings
residence of
by/against
members
proceedings
Term for
partnership
partnership is to
by/against
exist
partnership
Amount of
Interest not
cash/value of
assignable
property
Interest is freely
contributed
w/o consent of
Additional
other
contributions
assignable
Time agreed
partners
upon to return
contribution of
Name may appear
limited partner Possess
i. Sharing of partnership
profits/other
property/assign
QuickTime and a rights in specific
compensationTIFF(Uncompressed)decompres
sor are n eded to see this picture.
partnership
property other
Right of limited than for
partner (if given) to partnership
substitute an purposes
assignee Admit person as
general partner
Admit person as
Right to admit
limited partner -
additional partners
unless authorized
Right of limited
in certificate
partners (if given)
Continue business
to priority for
with partnership
contributions
property on death,
retirement, civil
Right of remaining interdiction,
gen partners (if insanity or
given) or continue insolvency of gen
business in case partner unless
authorized in
certificate

SPECIFIC
of death, insanity, RIGHTS OF
retirement, civil LIMITED
interdiction, PARTNERS:
insolvency
Right to have
Right of limited partnership books
partner (if given) to kept at principal
demand/receive place of business
property/cash in
return for Right to
contribution inspect/copy
books at
Certificate must reasonable hour
be filed with the
SEC Right to have on
demand true and
WHEN GENERAL full info of all
PARTNER NEEDS things affecting
CONSENT/RATIFI partnership
CATION OF ALL Right to have
LIMITED formal account of
PARTNERS: partnership affairs
whenever
circumstances
Do any act in
render it just and
contravention of
reasonable
the certificate
Do any act which
would make it Right to ask for
impossible to carry dissolution and
on the ordinary winding up by
business of the decree of court
partnership Right to receive
Confess judgment share of
against partnership profits/other
compensation by paid, at least
way of income sufficient to cover
them
Right to receive
return of Consent of all
contributions members has
provided the been obtained
partnership assets Certificate is
are in excess of all cancelled/amende
its liabilities d as to set forth
withdrawal
/reduction of
REQUISITES FOR contribution
RETURN OF
CONTRIBUTION LIABILITIES OF
OF LIMITED A LIMITED
PARTNER: PARTNER
All liabilities of
partnership have To the
been paid/if not yet partnership
Page 170 of 297
Civil Law Summer Reviewer

ATENEO CENTRAL BAR OPERATIONS 2007

for the difference between his contribution as actually


made and that stated in the certificate as having been
made, and

for any unpaid contribution which he agreed in the


certificate to make in the future time

As a trustee for the partnership

for the specific property stated in the certificate as


contributed by him but which he had not contributed;
for the specific property of the partnership which had
been wrongfully returned to him; and
Money or other property wrongfully paid or conveyed
to him on account of his contribution.

DISSOLUTION OF LIMITED PARTNERSHIP

(Priority in Distribution of Assets):

Those due to creditors, including limited partners


Those due to limited partners in respect of their share
in profits/compensation

Those due to limited partners of return of capital


contributed

Those due to general partner other than capital &


profits
Those due to general partner in respect to profits

Those due to general partner for return of capital


contributed

QuickTime and a TIFF (Uncompressed) decompressor


are needed to see this picture.
Page 171 of 297

Vous aimerez peut-être aussi