Partnership: Entralized AR Perations 150
Partnership: Entralized AR Perations 150
Partnership: Entralized AR Perations 150
PARTNERSHIP
Requisites:
1. intention to create a partnership
2. common fund obtained from the
contributions
3. joint interest in the profits
Essential Features:
1. there must be a valid contract;
2. the parties must have legal
capacity to enter into the
contract;
NOTE: Under the Civil Code, a (e) as the consideration for the sale
partnership may be particular or of a goodwill of a business or
universal, and a particular partnership other property by installments or
may have for its object a specific otherwise.
undertaking. Hence, a joint venture
may be treated like any other contract, CLASSIFICATION OF PARTNERSHIP
innominate in nature to be regulated and 1. as to object:
governed primarily by the stipulations of a) universal partnership
the parties thereto and suppletorily by i. universal partnership of all
the general provisions of the Civil Code present property
on obligations and contracts, by rules ii. universal partnership of
governing the most analogous contracts profits
(e.g. law on partnership), and by the b) particular partnership
customs of the place.
2. as to liability of partners:
Other Similar Contracts a) general partnership
1. Collaboration- the act of working b) limited partnership
together in a joint project.
2. Association- act of a number of 3. as to duration:
persons uniting together for some special a) partnership at will
purpose or business. b) partnership with a fixed
period
RULES TO DETERMINE EXISTENCE OF
PARTNERSHIP (ART 1769) 4. as to legality of existence:
1. GENERAL RULE: Persons who are a) de jure partnership
not partners as to each other are not b) de facto partnership
partners as to third persons.
EXCEPTION: partnership by 5. as to representation to others:
estoppel a) ordinary or real partnership
2. Co-ownership of a property does not b) ostensible or partnership by
itself establish a partnership, even estoppel
though the co-owners share in the
profits derived from the incident of 6. as to publicity:
joint ownership. a) secret partnership
3. Sharing of gross returns alone does b) notorious or open partnership
not indicate a partnership, whether
or not the persons sharing them have 7. as to purpose:
a joint or common right or interest a) commercial or trading
in any property from which the b) professional or non-trading
returns are derived.
4. Receipt of share in the profits is a UNIVERSAL PARTNERSHIP
strong presumptive evidence of 1. A universal partnership of all
partnership. However, no such present property is one wherein the
inference will be drawn if such partners contribute all the property
profits were received in payment: which actually belong to them to a
(a) as a debt by installments or common fund, with the intention of
otherwise; (b) as wages of an dividing the same among themselves, as
employee or rent to a well as all the profits which they may
landlord; acquire therewith.
(c) as an annuity to a widow or
representative of a deceased In a universal partnership of
partner; al present property, the property
(d) as interest on a loan, though the which belongs to each of the partners
amount of payment vary with the at the time of the constitution
profits of the business; and of the partnership, becomes the
common property of all the partners,
as well as
CIVIL LAW COMMITTEE
CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman,
Dorothy Gayon
SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
154 2005 CENTRALIZED BAR OPERATIONS
5. Secret partnership- one wherein the b) Secret partner- one who takes
existence of certain persons as active part in the business by is not
partners is not avowed or made known to be a partner by outside
known to the public by any of the parties nor held out as a partner by
partners. the other partners. c) Dormant
6. Open or notorious partnership- one partner- one who does not take
whose existence is avowed or made active part in the business and is not
known to the public by the members known or held out as partner.
of the firm.
7. Commercial or trading partnership- KEY: CP2L
one formed for the transaction of Capitalist Partner Industrial
business. Partner
8. Professional or non-trading 1. as to contribution
partnership- one formed for the contributes money contributes his
exercise of a profession. or property industry (mental
or physical)
CLASSIFICATION OF PARTNERS
2. as to prohibition to engage in
1. as to CONTRIBUTION:
other business
a) Capitalist partner- one who Cannot generally cannot engage in
contributes money or property to the engage in the same any business for
common fund. or similar enterprise himself
b) Industrial partner- one who as that of his firm
contributes only his industry or
personal service. 3. as to profits
1. shares in the receives a just
2. as to LIABILITY: profits according and equitable
a) General partner- one whose to agreement share
liability to third persons extends to thereon;
2. if none, pro rata
his separate property, he may either
to his
be a capitalist or industrial partner. contribution
b) Limited partner- one whose 4. as to losses
liability to third persons is limited to 1. first, the exempted as to
his capital contribution. stipulation as to losses (as
losses; between
3. as to MANAGEMENT: 2. if none, the partners); but is
a) Managing partner- one who agreement as to liable to third
manages the business or affairs of profits; persons, without
the partnership; he may be 3. if none, pro rata prejudice to
to contribution reimbursement
appointed in the articles of from the
partnership or after constitution of capitalist
the partnership. partners
b) Silent partner- one who does not
take any active part in the business
although he may be known to be a OBLIGATIONS OF PARTNERS AMONG
partner. THEMSELVES:
c) Liquidating partner- one who
takes charge of the winding up of I. Obligation with respect to
the partnership affairs upon contribution of property
dissolution. a) To contribute what had been
promised
4. Miscellaneous: b) To answer for eviction in case
a) Ostensible partner- one who the partnership is deprived of
takes active part and known to the determinate property
public as a partner in the business, contributed
whether or not he has actual interest
in the firm.
NOTES:
authority to sell must be in
writing;otherwise the sale is VOID
(Art.1874)
the sale itself should be in writing
in order to be enforceable.
The authority of an agent to execute a
contract of sale of real estate must
be conferred in writing and must
give him specific authority, either to
conduct the general business of the
principal or to execute a binding
contract containing terms and
conditions which are in the contract
he did execute. (Dizon et al. vs. CA
et al., GR 124741, January 28, 2003)
1. Scope of Authority
2. Continuity
the
ELEMENTS OF EXPRESS TRUST
1. Competent trustor and trustee;
2. Ascertainable trust res; and
3. Sufficiently certain beneficiaries.
TRUST PROPERTY
The concept of a trust arises from or is
the result of a fiduciary relation
between the trustee and the cestui que
trust as regards certain property- real,
personal, funds or money, choses in
action held by the trustee. (Pacheco vs.
Arro, 85 PHIL 505 )
PROOF OF TRUST
NOTES:
Trusts cannot be established
n
i violation of law. Trust is founded
in equity such that it cannot
result from a contract formed for an
illegal purpose.
Neither may a trust be created
forthe purpose of evading a legal
prohibition. Example: there cannot
be a trust created for the purpose of
obtaining homestead patents, in
favor of a person already disqualified
to obtain additional homesteads.
NOTES:
the 10-year prescriptive
period in case of implied trust
begins to run from the date the
trustee repudiates the express
trust. In the case Sps. Pascual, et
al. vs. CA, et al. GR 115925,
August 15, 2003, it was held that
CIVIL LAW COMMITTEE
CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman,
Dorothy Gayon
SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
180 2005 CENTRALIZED BAR OPERATIONS