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SS Lecture12 - SS Lecture 12 Overview What is a partnership...

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12/17/2007 1 SS Lecture 12 Overview What is a “partnership”? Definition / Essential Elements : sec 5 Rules for Deciding Existence : sec 6 Forming a Partnership / Partnership Agreement P/ship compared to: joint venture; companies The Relationship between Partners 1 Duties ( ss 31-33 ), Partnership Property ( ss 23-24 ) When are partners liable for each other’s actions? Contract ( ss 8-10 ), Tort ( sec 13) Dissolution & Changes in Membership: ss 20, 39, 17 Limited Partnerships: ch 3; ss 48-69 Incorporated ltd p/ships: ch 4; ss 70-111 Sources of p/ship law • Statute Rules of equity and common law 2 What is a partnership?: s.5 “(1) Partnership is the relation which subsists between persons carrying on a business in common with a view of profit. (2) However the relation between 3 (2) However, the relation between members of any... [corporation] ... is not a partnership within the meaning of this Act.” 3 essential elements: s .5 A “ business ” — commercial or professional: Section 3; Welch v Jess (1976) 2 NZ Recent Law (NS) 185. • “ Carried on ” — repetition of acts, not 4 single transactions: Re Griffin (1890) 60 LJQB 235; Smith v Anderson ; Ballantyne v Raphael ; Khan v Miah [2000] 1 WLR 2123; contrast Keith Spicer Ltd v Mansell Lord Millett in Khan v Miah [2000] 1 WLR 2123 (House of Lords): “Many businesses require a great deal of expenditure to be incurred before trading commences … The work of finding, acquiring and fitting out a shop or restaurant begins long before the premises are open for business and the first customers walk through the door. Such work is undertaken with a view of profit and may be 5 is undertaken with a view of profit, and may be undertaken as well by partners as by a sole trader … The question is not whether the restaurant had commenced trading, but whether the parties had done enough to be found to have commenced the joint enterprise in which they had agreed to engage ”. 3 essential elements (cont) • “ In common ” — by or on behalf of alleged partners • “ With a view of profit ” — non-profit associations excluded 6 associations excluded.
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