topic 3

forming partnership

conclusion of patnership agreement between 2+, cannot create philanthropic, aim of partnership: obtain material or patrimonial benefit

partnership definition

legal relationship arising from contract between 2+ persons, pursuant to which each agrees to make contribution to a business to be carried in common with the object of making and sharing profits

legal nature

not a legal person, but business name can be used in court proceedings

partners

2+ persons, natural persons, legal persons, called join ventures between two+ companies

creation of contract

general principles, intention, essentialia: contribution, carry on business for joint benefit and profit as object

naturalia of contract

proportion of profit sharing, power of representation, compensation for contribution and fund and co ownership

types of partners

ordinary- normal

extraordinary- silent/anonymous

types of arrangements

universial- everything each partner makes and owns is put into the partnership

particular- only for a specific project/venture and ends when purpose is achieved

partnership common law duties

fiduciary duties-comply with agreement duties, promote interests and avoid conflict through other partnership and disclosure

duties amongst partners

make contribution, share profit/losses and care and skill

remedies for enforcement of rights actio pro socio:

specific performance in terms of agreement, interdict- court order stopping partner from doing something, claim return of partnership asset- if partner takes asset for personnal use can be claimed back, clalim dissolution of partnership- if relationship is so bad you ask court to end partnership

remedies for enforcement of rights actio communi dividundo

allows ending partnership to go to court and ensure assets are distributed fairly

external relations

authorised representation: specififc authority or mutual mandate

estoppel: misrepresentation by partner that they had authority to bind partnership

ratification: partner acted without authority but other partners approve

vicarious liability

a partner is held liable for an offence if they are part of the partnership unless it is proven that they did not take part and could not stop it

rights amongst partners

share in profits, management powers to representation and access to information and reimbursement of expense

dissolution of partnership

agreement, effluxion of time, completion of business, change in members through death, resign/retire or new partner

sequistrain of partners=end of partnership

creditors can come after each partner personally

company are slightly different but section 13 still applied(comissioner SARS)

court order-breach of fidicuary relationship or personal circumstances

formalities

name, title or business under which it is carried, primary place at which business takes place and name to whom that business is registered