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profits with the view of dividing them among by which the profi ts and losses are to be
the contracting parties. shared, and the procedure for dissolving the
A partnership contract, in its essence, is a partnership
contract of agency c. Requisites. — Since partnership is
F. ESSENTIAL FEATURES OF PARTNERSHIP fundamentally contractual, all the essentials
The following are the essential features of of a valid contract must be present. Under
partnership contract the law, the following requisites must
1. There must be a valid contract; concur: 1) Consent and capacity of the
2. The parties (two or more persons) must have contracting parties; 2) Object which is the
legal capacity to enter into the contract; subject matter of the contract; and 3) Cause
3. There must be a mutual contribution of which is established.6 (Art. 1318.)
money, property, or industry to a common 2. Partnership relation fi duciary in nature. —
fund; Partnership is a form of voluntary association
4. The object must be lawful; and entered into by the associates. It is a personal
5. The primary purpose must be to obtain relation in which the element of delectus
profits and to divide the same among the personae exists, involving as it does trust and
parties confi dence between the partners.
It is also required that the articles of partnership a. Right to choose co-partners. — Unless
must not be kept secret among the members; otherwise provided in the partnership
otherwise, the association shall have no legal agreement, no one can become a member of
personality and shall be governed by the the partnership association without the
provisions of the Civil Code relating to co- consent of all the other associates. The
ownership fiduciary nature of the partnership relation
G. EXISTENCE OF A VALID CONTRACT and the liability of each partner for the acts
1. Partnership relation fundamentally contractual of the others within the scope of the
— Partnership is a voluntary relation created by partnership business (Art. 1818.) require
agreement of the parties. It excludes from its that each person be granted the right to
concept all other associations which do not have choose with whom he will be associated in
their origin in a contract, express or implied. the firm
There is no such thing as a partnership created b. Power to dissolve partnership. — Neither
by law or by operation or implication of law would the presence of a period for its
alone. Religious societies, conjugal partnerships specific duration or the statement of a
and others of a similar nature are not, therefore, particular purpose for its creation prevent
included as they are not created by the express the dissolution of any partnership by an act
or implied contract of the parties. or will of a partner. Among partners, mutual
Actually, the partnership relation is not the agency arises and the doctrine of delectus
contract itself, but the result of the contract personae allows them to have the power,
a. Form. — The relation is evidenced by the although not necessarily the right, to
terms of the contract which may be oral or dissolve the partnership. Verily, any one of
written, express or implied from the acts and the partners may, at his sole pleasure,
declarations of the parties, subject to the dictate a dissolution of the partnership at
provisions of Articles 1771 to 1773 and to will. He must, however, act in good faith, not
the Statute of Frauds. that the attendance of bad faith can prevent
b. Articles of Partnership. — While the the dissolution of the partnership but that it
partnership relation may be informally can result in a liability for damages
created and its existence proved by c. Application of principles of estoppel. — A
manifestations of the parties, it is customary partnership liability may be imposed upon a
to embody the terms of the association in a person under principles of estoppel where
written document known as “Articles of he holds himself out, or permits himself to
Partnership”5 stating the name, nature or be held out, as a partner in an enterprise.
purpose and location of the fi rm, and defi (see Art. 1825.) In such cases, there is no
ning, among others, the powers, rights, actual or legal partnership relation but
duties, and liabilities of the partners among merely a partnership liability imposed by law
themselves, their contributions, the manner in favor of third persons.
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A partnership may be created without any c. Where the entry of the foreign corporation
definite intention to create it. It is the substance as a limited partner in a limited partnership
and not the name of the arrangement, which (Chap. 4.) is merely for investment purposes
determines the legal relationship, although the and it shall not take part in the management
designation adopted by the parties should be and control of the business operation of the
considered as indicative of their intention. partnership, it shall not be deemed “doing
In case there is no written agreement between business’’ in the Philippines, and hence, it is
the parties, the existence or non-existence of a not required to obtain a license to do
partnership must be determined from the business in the Philippines as required by
conduct of the parties, any documentary Sections 123-126 of the Corporation Code
evidence bearing thereon, and the testimony of I. CONTRIBUTION OF MONEYM PROPERTY, OR
the parties. INDUSTRY TO A COMMON FUND
H. LEGAL CAPACITIES OF THE PARTIES TO ENTER 1. Existence of proprietary interest. — The partners
INTO THE CONTRACT must have a proprietary interest in the business
1. Individuals. —As a general rule, any person may or undertaking, that is, they must contribute
be a partner who is capable of entering into capital which may be money or property, or their
contractual relations. Consequently, any person services, or both, to the common business. The
who cannot give consent to a contract cannot be very defi nition of partnership in Article 1767
a partner. Hence, the following cannot give their provides for this element. Without the element
consent to a contract of partnership: of mutual contribution to a common fund there
a. Unemancipated minors; can be no partnership (see Art. 1784.), although
b. Insane or demented persons; its presence is not necessarily a conclusive
c. Deaf-mutes who do not know how to write; evidence of the existence of partnership.
d. Persons who are suffering from civil a. Money. — The term is to be understood as
interdiction; and referring to currency which is legal tender in
e. Incompetents who are under guardianship. the Philippines. It must be pointed out that
Under Article 1782, persons who are prohibited checks, drafts, promissory notes payable to
from giving each other any donation or order, and other mercantile documents are
advantage cannot enter into a universal not money but only representatives of
partnership. money. Consequently, there is no
A married woman may enter into a contract of contribution of money until they have been
partnership even without her husband’s cashed.
consent, but the latter may object under certain b. Property. — The property contributed may
conditions be real or personal, corporeal or incorporeal.
2. Partnerships. — There is no prohibition against a Hence, credit such as promissory note or
partnership being a partner in another other evidence of obligation or even a mere
partnership. When two or more partnerships goodwill may be contributed, as they are
combine with each other (or with a natural considered property.
person or persons) creating a distinct c. Industry. — In the absence of money or
partnership property, or in concurrence with these two,
3. Corporations. — The doctrine adopted by our the law permits the contribution of industry.
Supreme Court is that, unless authorized by The word “industry” has been interpreted to
statute or by its charter, a corporation is without mean the active cooperation, the work of
capacity or power to enter into a contract of the party associated, which may be either
partnership personal manual efforts or intellectual, and
a. A corporation, however, may enter into joint for which he receives a share in the profi ts
venture partnership with another where the 2. Proof of contribution. — In partnership, proof is
nature of the venture is in line with the necessary that there be contribution of money,
business authorized by its charter. property, or industry to a common fund with the
b. Where the partnership agreement provides intention of dividing the income or profits
that the two partners will manage the obtained therefrom
partnership so that the management of J. LEGALITY OF THE OBJECT
corporate interest is not surrendered, the object is unlawful when it is contrary to law,
partnership may be allowed morals, good customs, public order, or public
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policy. (Art. 1306.) As in other kinds of contract, public instrument and registration of the
the purpose of a partnership must be lawful (Art. same with the Securities and Exchange
1770.) otherwise, no partnership can arise as the Commission in cases when the partnership
contract is inexistent and void ab initio. capital exceeds P3,000.00, such partnership
a partnership may be organized for any purpose acquires juridical personality.
except that it may not engage in an enterprise b. Under Articles 1773 and 1775. — However,
for which the law requires a specific form of in the case contemplated in Article 1773, the
business organization, such as banking which, partnership shall not acquire any juridical
under the General Banking Law of 2000 (R.A. No. personality because the contract itself is
8791, Sec. 8.), only stock corporations may void. This is also true regarding secret
undertake. associations or societies which do not
K. PURPOSE TO OBTAIN PROFIT acquire juridical personality under Article
1. The very reason for the existence of partnership 1775.
2. Need only be the principal, not exclusive aim To organize a corporation or a partnership that
L. SHARING OF PROFITS could claim a juridical personality of its own and
Not necessarily in equal shares transact business as such, is not a matter of
Not conclusive evidence of partnership absolute right but a privilege which may be
M. SHARING OF LOSSES enjoyed only under such terms as the State may
1. Necessary corollary of sharing profit deem necessary to impose.
The definition of partnership under Article 1767
1769 In determining whether a partnership
refers to “profits” only and is silent as to “losses.”
exists, these rules shall apply:
The reason is that the object of a partnership is
(1) Except as provided by Article 1825,
primarily the sharing of profits, while the persons who are not partners as to
distribution of losses is but a “consequence of each other are not partners as to third
the same.” persons;
a community in losses is a necessary corollary of (2) Co-ownership or co-possession
a participation in profits, where it is determined does not of itself establish a
that a partnership exists. partnership, whether such-co-owners
2. Agreement not necessary or co-possessors do or do not share
any profits made by the use of the
1768 The partnership has a juridical property;
personality separate and distinct from (3) The sharing of gross returns does
that of each of the partners even in not of itself establish a partnership,
case of failure to comply with the whether or not the persons sharing
requirements of Article 1772, fi rst them have a joint or common right or
paragraph interest in any property from which
A partnership is sometimes referred to as a “fi the returns are derived;
rm’’ or a “company,’’ terms that connote an (4) The receipt by a person of a share
entity separate from its aggregate individual of the profits of a business is prima
partners facie evidence that he is a partner in
Like the corporation, a partnership duly formed the business, but no such inference
under the law is a juridical person to which the shall be drawn if such profits were
law grants a juridical personality separate and received in payment:
distinct from that of each of the partners. (a) As a debt by installments or
otherwise;
As an independent juridical person, a
(b) As wages of an employee or rent to
partnership may enter into contracts, acquire
a landlord;
and possess property of all kinds in its name, as (c) As an annuity to a widow or
well as incur obligations and bring civil or representative of a deceased partner;
criminal actions in conformity with the laws and (d) As interest on a loan, though the
regulations of its organizations. amount of payment vary with the
Effect of failure to comply with statutory profits of the business;
requirements (e) As the consideration for the sale of
a. Under art 1772 – even in case of failure to a goodwill of a business or other
comply with the requirements of Article property by installments or otherwise.
1772, with reference to the execution of a Rules to determine existence of partnership
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a. Where terms of contract not clear- In case 2. The law does not imply a partnership
of doubt, Article 1769 shall apply. It must be between coowners or co-possessors
observed that this article seeks to exclude because of the fact that they develop or
from the category of partnership certain operate a common property, since they
features enumerated therein which, by may rightfully do this by virtue of their
themselves, are not indicative of the respective titles
existence of a partnership. b. Existence of fiduciary relationship
b. Where existence disputed - Where The mere sharing of gross returns alone does
circumstances taken singly may be not indicate a partnership, since in a
inadequate to prove the intent to form a partnership, the partners share net profits after
partnership, nevertheless the collective satisfying all of the partnership’s liabilities.
effect of these circumstances may be such for when a business is carried on in behalf of a
as to support a fi nding of the existence of given person as partner, he is conceived as
the parties’ intent being interested in its failures as well as its
Persons who are partners as between successes; it is the chance of gain or loss which
themselves are partners as to third persons. characterizes a business, whether in the form of
Generally, the converse is true, to wit: if they a partnership or otherwise
are not partners as between themselves, they however, there is further evidence of mutual
cannot be partners as to third persons. management and control, a partnership may
a. Intention to create partnership. — result, even though the agreement calls for a
Partnership is a matter of intention, each portion of “gross returns.”
party giving his consent to become a Strong presumptive evidence of partnership. —
partner. Whether or not the parties call An agreement to share both profi ts and losses
their relationship or believe their tends strongly to establish the existence of a
relationship a partnership is immaterial. partnership, and conversely, the lack of such an
However, whether a partnership exists agreement tends strongly to negate the
between the parties is a factual matter. existence of a partnership. But the mere fact of
Where the parties expressly declare they a right under the contract to participate in both
are not partners, this, as a rule, settles the profi ts and losses of a business does not of
question as between themselves itself have the effect of establishing a
b. Partnership by estoppel. — A partnership partnership between those engaged therein.
can never exist as to third persons if no sharing of profi ts and losses is prima facie
contract of partnership, express or implied, evidence of an intention to form a partnership
has been entered into between the parties but not a conclusive evidence
themselves. (see Art. 1834, last par.) The when no such inference will be drawn - The
exception refers to partnership by estoppel. basic test of partnership, whether inter se or as
Thus, where persons by their acts, consent, to third persons, is whether the business is
or representations have misled third carried on in behalf of the person sought to be
persons or parties into believing that the held liable. And persons who are partners in
former are partners in a non-existing fact may not avoid the consequences of the
partnership, such persons become subject relation by mere word of denial.
to liabilities of partners to all who, in good It is not merely the sharing of profi ts, but the
faith, deal with them in their apparent sharing of them as co-owner of the business or
relations. undertaking, that makes one a partner
There is co-ownership (or co-possession) the burden of proving the existence of a
whenever the ownership (or co-possession) of partnership rests on the party having the affi
an undivided thing or right belongs to different rmative of that issue.
persons. (Art. 484.) Indicia and incidents of partnership
a. Clear intent to derive profits from a. Once the legal nature of a contract as one
operation of business of partnership has been established,
1. Two or more persons may become co- whether or not the parties intended that
owners without a contract (e.g., by relationship to be called partnership or
inheritance or by law) but they cannot believed it to be a partnership, certain
be partners in the absence of contract. consequences or incidents follow as a
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unlawful object; and it is self-evident that what form, except where immovable
does not exist cannot be a cause of action property or real rights are contributed
Effect of partial illegality of partnership business thereto, in which case a public
1. an account of that which is legal may be had. instrument shall be necessary
2. Where, without the knowledge or As a general rule, no special form is required for
participation of the partners, the firm’s the validity or existence of the contract of
profits in a lawful business have been partnership. The contract may be made orally or
increased by wrongful acts, the innocent in writing regardless of the value of the
partners are not precluded as against the contributions
guilty partners from recovering their share Where immovable property or real rights are
of the profits. contributed. - In such case, according to Article
Effect of subsequent illegality of partnership 1771, “a public instrument shall be necessary,”
business - The happening of an event without stating, unlike Article 1773, that without
subsequent to the making of a valid partnership the public instrument, the contract is void. (see
contract which would render illegal the business Arts. 1356-1358.) Read together, they require
of the partnership as planned, will not nullify the the execution of a public instrument for the
contract. Where the business for which the validity of a contract of partnership whenever
partnership is formed is legal when the immovable property is contributed thereto. To
partnership is entered into, but afterward affect third persons, the transfer of real property
becomes illegal, an accounting may be had as to to the partnership must be duly registered in the
the business transacted prior to such time. Registry of Property of the province or city where
Community of Interest between the partners for the property contributed is located.
business purpose - The salient features of an When partnership agreement covered by
ordinary partnership are a community of interest Statute of Frauds. — An agreement to enter in a
in profits and losses, a community of interest in partnership at a future time, which “by its terms
the capital employed, and a community of power is not to be performed within a year from the
in administration. making thereof” is covered by the Statute of
a. This community of interest — the partners Frauds. Such agreement is unenforceable unless
must be coowners of the business — is the the same be in writing or at least evidenced by
basis of the partnership relation. However, some note or memorandum thereof subscribed
although every partnership appears to be by the parties.
founded on a community of interest, every Partnership Implied from conduct
community of interest does not necessarily 1. Binding effect. — A partnership may exist
constitute a partnership. For example, and often exists in the absence of express
tenants in common of land are not partners. agreement, written or verbal, between the
b. Property used in the business may belong to parties. Its existence may be implied from
one or more partners, so that there is no the acts or conduct of the parties, as well as
joint property, other than joint earnings. To from other declarations, and such implied
state that partners are co-owners of a contract would be as binding as a written
business is to state that they have the power and express contract.
of ultimate control. But partners may agree 2. Ascertainment of intention of parties. — In
upon concentration of management, leaving determining whether or not a particular
some of their members entirely inactive or transaction constitutes a partnership, as
dormant. between the parties, the intention as
c. Only one of these features, profit-sharing, disclosed by the entire transaction, and as
seems to be absolutely essential. No doubt, gathered from the facts and from the
in every partnership, profits are to be language employed by the parties as well as
divided among the partners. But the mere their conduct, should be ascertained. A
sharing of profits of itself does not of partnership may even be created without
necessity constitute a partnership or the any definite intention; the intention of the
members partners inter se parties being inferred from their conduct
and dealings with each other.
1771 A partnership may be constituted in
any
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industrial partner. (see Arts. 1843, liability by the doctrine of estoppel (Art.
1816.) He is also known as real partner; 1825.);
d. Limited partner or one whose liability to b. Secret partner or one who takes active
third persons is limited to his capital part in the business but is not known to
contribution. (see Art. 1843.) He is also be a partner by outside parties nor held
known as special partner. The terms out as a partner by the other partners
“general partner” and “limited partner” (Ibid.), although he participates in the
have relevance only in a limited profits and losses of the partnership. He
partnership; is an actual partner. He is also an active
e. Managing partner or one who manages partner in the sense that he participates
the affairs or business of the in the management of the partnership
partnership; he may be appointed either affairs;
in the articles of partnership or after the c. Silent partner or one who does not take
constitution of the partnership. (see Art. any active part in the business although
1800.) He is also known as general or he may be known to be a partner. Thus,
real partner; he need not be a secret partner. If he
f. Liquidating partner or one who takes withdraws from the partnership, he
charge of the winding up of partnership must give notice to those persons who
affairs upon dissolution (see Art. 1836.); do business with the firm to escape
g. Partner by estoppel or one who is not liability in the future;
really a partner, not being a party to a d. Dormant partner or one who does not
partnership agreement, but is liable as a take active part in the business and is not
partner for the protection of innocent known or held out as partner. (see Art.
third persons. (see Art. 1825.) He is one 1834, par. 2.) He would be both a silent
who is represented as being in fact a and a secret partner. He would be both
partner but who is not so as between the a secret and a silent partner. He may
partners themselves. He is also known as retire from the partnership without
partner by implication or nominal giving notice and cannot be held liable
partner. The term “quasi-partner” is for obligations of the firm subsequent to
sometimes his withdrawal. His only interest in
h. Continuing partner or one who joining the partnership would be the
continues the business of a partnership sharing of the profits earned. The term is
after it has been dissolved by reason of used as synonymous with “sleeping
the admission of a new partner, or the partner”
retirement, death, or expulsion of one or e. Original partner or one who is a member
more partners (see Art. 1840.); of the partnership from the time of its
i. surviving partner or one who remains organization;
after a partnership has been dissolved f. Incoming partner or a person lately, or
by the death of any partner (see Art. about to be, taken into an existing
1842.); and partnership as a member
j. Subpartner or one who, not being a g. Retiring partner or one withdrawn from
member of the partnership, contracts the partnership; a withdrawing partner.
with a partner with reference to the All partners in any of these six classes are subject
latter’s share in the partnership. (see to liability for all partnership obligations.
Art. 1804.)
1777 A universal partnership may refer to
2. Other classification
all the present property or to all the
a. Ostensible partner or one who takes
profits.
active part and known to the public as a
1778 A partnership of all present property is
partner in the business (see Art. 1834, that in which the partners contribute
par. 2.), whether or not he has an actual all the property which actually belongs
interest in the firm. Thus, he may be an to them to a common fund, with the
actual partner or a nominal partner. If he intention of dividing the same among
is not actually a partner, he is subject to themselves, as well as all the profits
they may acquire therewith
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1779 In a universal partnership of all the dissolution of the partnership, such property
present property, the property which is returned to the partners who own it
belongs to each of the partners at the Profits acquired through chance. — Since the law
time of the constitution of the speaks only of profi ts which the partners may
partnership, becomes the common acquire by their industry or work, it follows that
property of all the partners, as well as profi ts acquired by the partners through chance,
all the profits which they may acquire
such as lottery or by lucrative title without
therewith.
employment of any physical or intellectual
A stipulation for the common
enjoyment of any other profits may efforts, are not included.
also be made; but the property which Fruits of property subsequently acquired. — In
the partners may acquire view of paragraph 2, fruits of property
subsequently by inheritance, legacy or subsequently acquired by the partners do not
donation cannot be included in such belong to the partnership. Such profits may,
stipulation, except the fruits thereof however, be included by express stipulation. But
universal partnership of profits is one which profi ts which the partners may acquire by their
comprises all that the partners may acquire by industry or work during the existence of the
their industry or work during the existence of the partnership as well as the usufruct of their
partnership and the usufruct29 of movable or present properties belong to the partnership as
immovable property which each of the partners a matter of right. An express stipulation is
may possess at the time of the celebration of the necessary to exclude any of them,
contract.
In this kind of partnership, the following become 1781 Articles of universal partnership,
entered
the common property of all the partners:
into without specification of its
a. Property which belonged to each of them at
nature, only constitute a universal
the time of the constitution of the partnership of profi ts.
partnership; and it will be presumed that the parties intended
b. Profits which they may acquire from the merely a partnership of profits. The reason for
property contributed. this presumption is that a universal partnership
As a general rule, future properties cannot be of profits imposes less obligations on the
contributed. partners, since they preserve the ownership of
1780 A universal partnership of profits their separate property
comprises all that the partners may 1782 Persons who are prohibited from
acquire by their industry or work giving
during the existence of the each other any donation or advantage
partnership. cannot enter into a universal
Movable or immovable property partnership.
which each of the partners may
Persons who are prohibited by law to give
possess at the time of the celebration
donations cannot enter into a universal
of the contract shall continue to
partnership for the reason that each of the
pertain exclusively to each, only the
usufruct passing to the partnership. partners virtually makes a donation.
universal partnership of profits is one which To allow persons who are prohibited to give each
comprises all that the partners may acquire by other any donation or advantage to form a
their industry or work during the existence of the universal partnership will be like permitting
partnership and the usufruct of movable or them to do indirectly what the law expressly
immovable property which each of the partners prohibits.
may possess at the time of the celebration of the A partnership formed in violation of this article is
contract. null and void. (Art. 1409[7].) Consequently, no
Ownership of present and future property. — It legal personality is acquired.
is to be noted that in this class of partnership, the A husband and his wife, however, may enter into
partners retain their ownership over their a particular partnership or be members thereof.
present and future property. What passes to the (see Commissioner of Internal Revenue vs. Suter,
partnership are the profi ts or income and the 27 SCRA 152 [1969].
use or usufruct of the same. Consequently, upon
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1783 A particular partnership has for its between these two business forms, and has
object held that although a corporation cannot
determinate things, their use or fruits, enter into a partnership contract, it may,
or a specific undertaking, or the however, engage in a joint venture with
exercise of a profession or vocation others.
above article defi nes a particular partnership. In
other words, it is a partnership which is neither CHAPTER 2 OBLIGATION OF PARTNERS
a universal partnership of present property nor a
Relations created by a contract of partnership.
universal partnership of profi ts.
a. Relations among the partners themselves;
The fundamental difference between a universal
b. Relations of the partners with the
partnership and a particular partnership lies in
partnership;
the scope of their subject matter or object. In the
c. Relations of the partnership with third
former, the object is vague and indefinite,
persons with whom it contracts; and
contemplating a general business with some
d. Relations of the partners with such third
degree of continuity while in the latter, it is
persons.
limited and well-defined, being confi ned to an
Partnership relationship essentially one of
undertaking of a single, temporary, or ad hoc
mutual trust and confidence.
nature.
Fiduciary relationship remains until partnership
Business of partnership need not be continuing
terminated
in nature- It may be inferred from Articles 1767
Relationship in a limited partnership
and 1783 that the carrying on of a business of a
continuing nature is not essential to constitute a 1784 A partnership begins from the
partnership. An agreement to undertake a moment of the execution of the
particular piece of work or a single transaction or contract, unless it is otherwise
a limited number of transactions and stipulated. (1679)
immediately divide the resulting profi ts would A partnership is a consensual contract; hence, it
seem to fall within the meaning of the term exists from the moment of the celebration of the
“partnership” as used in the law. contract by the partners.1 (see Art. 1315.)
1. Rule under American law. — The above is The birth and life of a partnership is predicated
not true under the Uniform Partnership Act. on the mutual desire and consent of the parties
The word “business,” as used in the Act, Where a partnership relation results, the law
clearly means business in the commercial itself fixes the incidents and consequences of
sense only, not merely “a joint venture’’ this relation (supra.) if the parties fail to do so.
which exists for carrying on a single act or Executory agreement of partnership
isolated transaction or a limited number of 1. Future partnership. — The partners may
transactions. Thus, a distinction exists stipulate some other date for the
between a joint venture, a legal concept of commencement of the partnership. Persons
common law origin, on which the members who have entered into a contract to become
are interested only in a single transaction partners at some future time or on the
2. Joint venture. — Sometimes called “joint happening of some future contingency do
adventure’’ or “joint enterprise’’ in not become partners until or unless the
American law, it is essentially a partnership agreed time has arrived or the contingency
created for a limited purpose. While a joint has happened. As long as the agreement for
venture is not a formal partnership in the a partnership remains inchoate or
legal or technical sense, both are governed, unperformed, the partnership is not
subject to certain qualifications, practically consummated.
by the same rules or principles of 2. Agreement to create partnership. — There is
partnership a marked distinction between a partnership
3. Corporation as a partner. — While under the actually consummated and an agreement to
Philippine Civil Code, a joint venture is a form enter into a contract of partnership at a
of partnership with a legal personality future
separate and distinct from the parties time. A partnership in fact cannot be
composing it, and should thus be governed predicated on an agreement to enter into a
by the law of partnership, the Supreme co-partnership at a future day unless it is
Court has, however, recognized a distinction shown that such an agreement was actually
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consummated. So long as the agreement attendance of bad faith can prevent the
remains executory the partnership is dissolution of the partnership
inchoate, not having called into being by the Partnership for a term impliedly fi xed. —
concerted action necessary under the Although the term of a partnership is not
partnership agreement expressly fi xed, an agreement of the parties may
3. Failure to agree on material terms. — A evidence an understanding that the relation
failure of the parties to agree on material should continue until the accomplishment of a
terms may not merely be evidence of the particular undertaking or certain things have
intent of the parties to be bound only in the been done or have taken place
future, but may prevent any rights or
1786 Every partner is a debtor of the
obligations from arising on either side for
partnership for whatever he may have
lack of complete contract
promised to contribute thereto. He
1785 When a partnership for a fixed term or shall also be bound for warranty in
particular undertaking is continued case of eviction with regard to specifi
after the termination of such term or c and determinate things which he
particular may have contributed to the
undertaking without any express partnership, in the same cases and in
agreement, the rights and duties of the same manner as the vendor is
the partners remain the same as they bound with respect to the vendee. He
were at such termination, so far as is shall also be liable for the fruits
consistent with a partnership at will. thereof from the time they should
A continuation of the business by the have been delivered, without the need
partners or such of them as habitually of any demand.
acted therein during the term, without Obligation with respect to the contribution of
any settlement or liquidation of the property
partnership affairs, is prima facie 1. To contribute at the beginning of the
evidence of a continuation of the partnership or at the stipulated time the
partnership money, property, or industry which he may
partnership with a fixed term is one in which the have promised to contribute;
term of its existence has been agreed upon 2. To answer for eviction in case the
expressly (as when there is a definite period) or partnership is deprived of the determinate
impliedly (as when a particular enterprise or property contributed; and
transaction is undertaken). The expiration of the 3. To answer to the partnership for the fruits of
term thus fixed or the accomplishment of the the property the contribution of which he
particular undertaking specified (or the delayed, from the date they should have
demonstration of the impossibility of its been contributed up to the time of actual
accomplishment) will cause the automatic delivery. In addition, the partner has the
dissolution of the partnership obligation:
Rights and duties of partners.- with such 4. To preserve said property with the diligence
continuation, the partnership for a fixed term or of a good father of a family pending delivery
particular undertaking is dissolved and a new to the partnership (Art. 1163.);
one, a partnership at will, is created by implied 5. To indemnify the partnership for any
agreement the continued existence of which will damage caused to it by the retention of the
depend upon the mutual desire and consent of same or by the delay in its contribution.
the partners. Thus, for example, the manner of The money or property contributed by a partner
management and profit-sharing ratio originally become the property of the partnership. It
agreed upon shall still govern but the necessarily follows that the same cannot be
partnership having become a partnership at will withdrawn or disposed of by the contributing
may be lawfully terminated at any time by the partner without the consent or approval of the
express will of all the partners or any of them partnership or of the other partners
Dissolution of partnership. — Verily, any one of failure to contribute is to make the partner ipso
the partners may, at his sole pleasure, dictate a jure a debtor of the partnership even in the
dissolution of a partnership at will. He must, absence of any demand.
however, act in good faith not that the the remedy of the other partner or the
partnership is not rescission but an action for
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PAT |LDCS
specific performance (to collect what is owing) (which may include unrealized profits) is the
with damages and interest from the defaulting value of the services wrongfully withheld,
partner from the time he should have complied then the defendant should be charged this
with his obligation value. If the defendant had made profi t by
Article 1191, which refers to resolution of engaging in other business in violation of the
reciprocal obligations in general, is not contract, he is liable to account for the same
applicable.
1787 When the capital or a part thereof
The partner is bound in the same cases and in the
which
same manner as the vendor is bound with
a partner is bound to contribute
respect to the vendee with regard to specific and consists of goods, their appraisal must
determinate things which he may have be made in the manner prescribed in
contributed to the partnership the contract of partnership, and in the
eviction shall take place whenever by a final absence of stipulation, it shall be
judgment based on a right prior to the sale or an made by experts chosen by the
act imputable to the vendor, the vendee is partners, and according to current
deprived of the whole or a part of the thing prices, the subsequent changes
purchased thereof being for the account of the
demand is necessary to put the partner in partnership
default. The appraisal of the value of the goods
Unless there is a special agreement to that contributed is necessary to determine how much
effect, the partners are not entitled to charge has been contributed by the partners. In the
each other, or the partnership of which they are absence of an stipulation, the share of each
members, for their services in the fi rm business. partner in the profits and losses is in proportion
The doctrine seems to be that every partner is to what he mayhave contributed.
bound to work to the extent of his ability for the The appraisal is made, firstly, in the manner
benefi t of the whole, without regard to the prescribed by the contract of partnership;
services of his copartners, however unequal in secondly, in the absence of stipulation, by
value or amount, and to require a partner to experts chosen by the partners and according to
account for the value of his services would be, in current prices. After the goods have been
effect, allowing compensation to the other contributed, the partnership bears the risk or
members of the partnership for the services they gets the benefi t of subsequent changes in their
rendered. value.
Exceptions In the case of immovable property, the appraisal
a. If a partner neglects or refuses, without is made in the inventory of said property it may
reasonable cause, to render the service be made as provided in Article 1787. There is no
which he agreed to perform by reason of reason why the rule in Article 1787 should not
which the partnership suffered loss, no good also apply with respect to other kinds of property
reason can be suggested why the erring
partner should not be just as responsible for
the breach of his agreement to render
personal service to the partnership as for the
breach of any other stipulation in the
partnership contract
b. If the partner is compelled to make good the
loss, each member of the fi rm, including
himself, will receive his proportion of the
amount in the distribution of the partnership
assets, and in no just sense can this be
regarded as compensation for the services
individually rendered. The proper measure
of damages in such case is the value of the
services wrongfully withheld.
c. If under the circumstances of the case the
proper measure of the damages or loss
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