ARTICLE 1767 – PARTNERSHIP
• By the contract of partnership two or more persons bind themselves to contribute money, property, or industry to a common fund, with the intention of dividing the profits among themselves.
• Two or more persons may also form a partnership for the exercise of a profession.
SECTION 2 – CORPORATION
• A corporation is an artificial being created by operation of law having the right of succession, the power attributes on properties expressly authorized by law, incident to its existence
IMPORTANT PARTS OF DEFINITION OF PARTNERHSIP
• Ilan ang minimum sa partnership? 2
• Ilan ang maximum? No requirement
• Ano ang pwede i-contribute? Money, property, or industry
• Required ba i-contribute lahat? No
CAPITALIST PARTNER – money and property
INDUSTRIAL PARTNER – industry or service
IN PARTNERSHIP, THE BASIC PURPOSE:
- Intention of dividing profits and losses among themselves.
TEST TO DETERMINE THE EXISTENCE OF PARTNERSHIP:
- There is a sharing of profit and losses.
• Can a partnership enter into another partnership? Yes
• Can a partnership enter into a corporation? Yes
• Can a corporation enter into a partnership? GR: NO. Why? Because of delectus personarum or personae principle – choice of the person. EXCEPTION: JOINT VENTURE
• Can corporation enter into another corporation? Yes
• Can one of the partners be exempted from giving his contribution? No, because the mutual contribution is needed. One of the partners cannot be exempted from giving his contribution.
• Is actual delivery required to create the partnership? No. Because partnership is consensual, it is created by mere consent. So actual deliver is not required and mere promise would be enough.
• What is the purpose of delivery? To transfer ownership not the creation of partnership.
• What if the partner did not contribute what he promised? The partnership is still valid. Remedy is specific performance or compel partner
• Is demand required to create the partnership? Under 1169, NO DEMAND, NO DELAY. Partnership is one of the exception under the rule. Hindi requirement ang demand because automatic if you fail to deliver on the date you promised, there will be liability for damage. Automatically, the partner will become a debtor to the partnership.
7 CHARACTERISTICS OF PARTNERSHIP
1. CONSENSUAL – created by mere consent
EXCEPTION: Real contract (it requires consent and the delivery of the thing)
KINDS OF REAL CONTRACT: (1) Deposit; (2) Loan; and (3) Pledge
2. NOMINATE – it has a name in the law
3. BILATERAL/MULTILATERAL – cannot be unilateral because the minimum is 2
4. ONEROUS – there is a prestation, may bayad/may contribution. Opposite of Gratuitous.
5. COMMUTATIVE – equivalent consideration. Opposite is Aleatory (no equivalent consideration)
6. PRINCIPAL – can stand alone (accessory follows the principal)
7. PREPARATORY – preparation of another contract
CONTRIBUTION – check? Us dollars?
Contribution should be money, property or industry.
• What if nag-contribute ng check? Check and USD is not a legal tender, but supposedly it is accepted.
• Pwede ba sya tanggahin ng partners? Yes, if accepted, there is waiver.
5 ELEMENTS OR REQUISITES OF PARTNERSHIP
1. VALID CONTRACT – there is a valid contract if there is COC (Consent, Object, Cause)
ADVANTAGES OF PARTNERSHIP:
DELECTUS PERSONARUM – choice of a person.
(Ang partnership meron siyang FIDUCIARY RELATIONSHIP (the trust and confidence)
2. LEGAL CAPACITY – those incapacitated are not allowed to enter the partnership
3. MUTUAL CONTRIBUTION – all partners are required to give contribution, either money, property or industry.
4. OBJECT MUST BE LAWFUL
5. PRIMARY PURPOSE – intention to divide profit and losses
