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1 CLV NOTES ON PROPERTY AUGUST 2010 1 – HISTORICAL BACKGROUND ON PHILIPPINE PARTNERSHIP LAW page 3 2 – THREE LEVELS OF EXISTENCE OF PARTNERSHIPS page 14 3 – PARTNERSHIP IS PRIMARILY A CONTRACTUAL RELATIONSHIP page 22 4 – ESSENTIAL ELEMENTS OF THE CONTRACT OF PARTNERSHIP page 32 5 – PARTNERSHIP AS A MEANS OF DOING BUSINESS, THROUGH THE JURIDICAL PERSON page 55 6 – PARTNERSHIP AS A BUSINESS ENTERPRISE page 68 7 – ESSENTIAL ATTRIBUTES OF THE PARTNERSHIP page 72

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  • 1

    CLV NOTES ON PROPERTY AUGUST 2010

    1 HISTORICAL BACKGROUND ON PHILIPPINE PARTNERSHIP LAW page 3

    2 THREE LEVELS OF EXISTENCE OF PARTNERSHIPS page 14

    3 PARTNERSHIP IS PRIMARILY A CONTRACTUAL RELATIONSHIP page 22

    4 ESSENTIAL ELEMENTS OF THE CONTRACT OF PARTNERSHIP page 32

    5 PARTNERSHIP AS A MEANS OF DOING BUSINESS, THROUGH THE JURIDICAL PERSON page 55

    6 PARTNERSHIP AS A BUSINESS ENTERPRISE page 68

    7 ESSENTIAL ATTRIBUTES OF THE PARTNERSHIP page

    72

  • 2

    8 PARTNERSHIP DISTINGUISHED FROM OTHER BUSINESS MEDIA page 84

    9 CLASSES OF PARTNERSHIPS AND PARTNERS page 97

    10 SPECIAL ISSUES OF WHO MAY QUALIFY TO BECOME PARTNERS page 107

    11 PARTNERSHIP FORMAL AND REGISTRATION REQUIREMENTS page 122

    12 RIGHTS AND POWERS OF PARTNERS page 149

    13 DUTIES AND OBLIGATIONS OF PARTNERS page 175

    14 DISSOLUTION, WINDING-UP AND TERMINATION OF THE PARTNERSHIP page 194

    15 LIMITED PARTNERSHIPS page 230

  • 3

    1 HISTORICAL BACKGROUND ON PHILIPPINE PARTNERSHIP LAW

    [Updated: 23 August 2010]

    I. HISTORICAL BACKGROUND OF PHILIPPINE PARTNERSHIP

    LAW

    1. Historical Background and Sources of Philippine Law on

    Partnership

    a. Notion of Partnership Is of Ancient Origins

    Prof. Esteban B. Bautista wrote that as a business device, the

    partnership was well known among the ancients and apparently

    occupied such an important place in their social and economic life

    that they made provision for it in their lawsamong the

    Babylonians from the time of Hammurabi, among the Babylonian

    Jews as early as the fourth century, and among the Romans almost

    from the time they laid the foundation of their monumental legal

    system. (BAUTISTA, ESTEBAN B., TREATISE ON PHILIPPINE

    PARTNERSHIP LAW, Rex Book Store, 1995 Ed., at p. 1, hereinafter

    referred to as BAUTISTA; citing 12 ENCYCLOPEDIA OF SOCIAL SCIENCE 3 [1948]). He also wrote that in medieval times, the

    device was prominent among the merchant princes in the Italian

    cities; it also thrived in thirteenth century England where it was

    regulated by guilds merchant. (BAUTISTA, at p. 1,citing 4 COLLIERS ENCYCLOPEDIA 257 [1952] and 12 ENCYCLOPEDIA OF

    SOCIAL SCIENCE 4 [1948])

    Professors Hector S. de Leon and Hector M. de Leon, Jr. write that

    As early as 2300 B.C., Hammurabi, the famous king of Babylon, in

    his compilation of the system of laws of that time, provided for the

    regulation of the relation called partnership. Commercial

    partnerships of that time were generally for single transactions or

    undertakings. (DE LEON, HECTOR S., and DE LEON, HECTOR M.,

  • 4

    JR., COMMENTS AND CASES ON PARTNERSHIP, AGENCY AND

    TRUST, Rex Book Store, Inc., Manila, Philippines, 2005 ed. , at p. 2,

    hereinafter referred to as DE LEONS). They also write that

    Following the Babylonian period, we find clear-cut references to

    partnerships in Jewish law . . . however, it must be remembered

    that the ancient Jews were a pastoral people, and, therefore, the

    partnership as a business organization under Jewish law was

    concerned with the holding of title to land by two or more persons.

    (DE LEONS, at p. 2)

    b. Civil and Common Law Bases of Partnership Laws

    The De Leons trace the origins of the modern-day partnership

    through the English commercials courts which eventually was

    integrated by then Chief Justice Lord Mansfield into the common law

    system and that it was not until the latter years of the 18th

    century that the law of partnership as we know it today began to

    assume both form and substance. (DE LEONS, at p. 3)

    They write that eventually in the United States, in 1914 the Uniform

    Partnerships Act was endorsed by the National Conference of

    Commissioners on Uniform State Laws, which had many points of

    similarity with the English Partnership Act of 1890, and that For

    this reason, the practical operation of the Uniform Partnership Act

    has a background of application in the workings of the English Act.

    (DE LEONS, at p. 5)

    Bautista suggested that the modern world provisions on

    partnership of every legal system providing for and regulating this

    type of business organization are based upon the Roman law, of

    course with several important modifications; . . . and that civil law

    countries or jurisdiction regard the partnership as a legal entity,

    while the common law ones generally do not. (BAUTISTA, at p.

    1, citing 17 ENCYCLOPEDIA BRITANNICA 420 [1969]). The De Leons observe that In fine, modern partnership law may be said to

    contain combination of principles and concepts developed from

  • 5

    three sources: the Roman Law, the law [on] merchant and equity,

    and the common law courts. (DE LEONS, at p. 5)

    c. Particular Bases of Philippine Law on Partnerships

    Before the promulgation of the New Civil Code, the Philippine

    partnership laws formerly distinguished between civil partnership

    and commercial partnerships. Civil partnerships were governed in

    Title VIII of Book IV of the old Civil Code of 1889 (Articles 1665 to

    1708); while commercial or mercantile partnership were governed

    by Title I of Book II of the Code of Commerce (Articles 116 to 238).

    According to Bautista, both sets of laws had their origin in the

    Roman Law. (BAUTISTA, at p. 2)

    The present Philippine Law on Partnership is provided under Title IX,

    Book V of the New Civil Code (Republic Act No. 386), which took

    effect on 30 August 1950, superseding the old Civil Code and

    repealed in toto the provisions of the Code of Commerce on partnerships, which has resulted in the abolition of the distinction

    between civil and commercial partnerships. (BAUTISTA, at p. 2). In

    particular, Article 45 of the New Civil Code expressly provides that

    Partnerships and associations for private interest or purpose are

    governed by the provisions of this Code concerning partnerships.

    While the bulk of the present provisions in the Civil Code were taken

    from the old Civil Code provisions, the Code Commission reported

    that some provisions were taken from the Code of Commerce, and

    other rules were adopted from the Uniform Partnership Act and the

    Uniform Limited Partnership Act of the United States. Bautista

    assessed that [o]n the whole, it may be stated that the bulk of the

    provisions of the New Civil Code on this subject are of American

    origin, i.e., based on the United States Uniform Partnership Act and

    Uniform Limited Partnership Act. (BAUTISTA, at p. 2)

  • 6

    d. The Significance of Knowing the Historical Background of

    Philippine Partnership Law

    The historical background of Philippine Law on Partnerships, finding

    its source from ancient times, indicate to us the relative efficiency of

    the medium as it is able to survive up to the modern times. The

    longevity of the partnership as a medium of doing business can be

    drawn from two characteristics.

    Firstly, that society considers it important enough to provide a legal framework by which entrepreneurs, merchants and businessmen

    may draw upon a set of rules to govern the medium by which to

    pursue a venture, without having to enter into costly and time-

    consuming negotiations and contract drafting. The essential

    characteristics of partnership as governed by law (under modern

    settings, they would be: juridical personality, mutual

    agency, delectus personae and unlimited liability of partners); and allow would-be partners the ability to rely upon the default legal

    rules, with the assurance of the backings of the State by which to

    enforce such default rules. This is what may be termed as the

    nominate and principal characteristic of the contract of partnership.

    Secondly, that the partnership relationship being essentially contractual in nature, assures would-be partners of the expedience

    of contractual stipulation, to be able to tailor-fit their relationships in

    a way that would best address their individual needs and their

    working relationships with their co-partners, as well as the demands

    of the business enterprise they have decided to embark upon.

    Partnership Law therefore provides a stable platform by which

    individuals may provide an active means to pursue jointly a

    business enterprise.

    The other significant reason coming from the historical background

    of our Philippine Law on Partnerships is that it draws it strength and

    its weakness from the fact that it is really an amalgam between two

    sets of legal traditions: the Civil Law system upon which most of the

    provisions of the New Civil Code had been drawn, and from the

  • 7

    Common Law tradition, particularly from the Uniform Partnership

    Act of the United States. Properly appreciated, that means that the

    Philippine Law on Partnerships can truly be molded into a

    framework that provides a stability from the set of rules and

    principles that are laid out in the provisions of the New Civil Code,

    and yet be dynamic and progressive in characteristic to allow

    Filipino businessmen and the legal profession to be able to evolve

    them effectively through application in the business world of

    innovative changes and advances, confirmed and made

    precedential in decisions of our courts resolving the acceptability

    of such cutting-edge innovations.

    2. Old Branches of Partnership Law

    a. Distinguishing Between Civil and Commercial Partnerships

    Before the New Civil Code, resolution of partnership issues

    depended on whether it covered a civil partnership for which the

    provisions of the old Civil Code were made to apply, or commercial

    partnership, and therefore covered by the Code of Commerce. There

    was even a third type of partnerships, the industrial partnerships,

    which may have the characteristics of commercial or civil

    partnerships, according to whether they have been established in

    accordance with the requirements of the Code of Commerce or

    without regard to the latter. (Prautch, etc. v. Hernandez, 1 Phil. 705, 709-710 [1903]).

    The essence of a commercial partnership was that it was

    undertaken by merchants, and essentially possessed of the

    characteristic of habitualness (or more properly referred to as pursued as a going concern) to be governed under the provisions of the Code of Commerce. Article 1 of the Code of Commerce

    provided that For purposes of this Code, the following are

    merchants: 1. Those who, having legal capacity to engage in

    commerce, habitually devote themselves thereto. . .

  • 8

    To illustrate, Evangelista v. Commissioner of Internal Revenue, 102 Phil. 140 (1957), held that there would exists the elements of

    common fund and intention to divide the profits among the

    members of the family who borrowed money as a group, when the

    facts showed that the

    1. Said common fund was not something they found already in

    existence. It was not a property inherited by them pro indiviso. They created it purposely. What is more they jointly borrowed a substantial portion thereof in order to establish said common fund.

    2. They invested the same, not merely in one transaction, but in

    a series of transactions. x x x The number of lots (24) acquired and transactions undertaken, as well as the brief interregnum between

    each, particularly the last three purchases, is strongly indicative of a

    pattern or common design that was not limited to the conservation

    and preservation of the aforementioned common fund or even of

    the property acquired . . . In other words, one cannot but perceive a

    character of habituality peculiar to business transactions engaged in for purposes of gain.

    3. The aforesaid lots were not devoted to residential purposes, or to

    other personal uses, of petitioners herein. The properties were

    leased separately to several persons who, from 1945 to 1948

    inclusive, paid the total sum of P70,068.30 by way of rentals.

    Seemingly, the lots are still being so let, for petitioners do not even

    suggest that there has been any change in the utilization thereof.

    (Ibid, at p. 145).

    Prior to the New Civil Code, the significant distinctions between civil

    partnerships from commercial partnerships were as follows:

    (a) Registration was essential for the coming into existence of

    commercial partnerships and their acquisition of juridical

    personalities (Arts. 118-119, Code of Commerce;Hung-Man-Yoc v. Kieng-Chiong Seng, 6 Phil. 498 [1906]); whereas, it was the perfection of a contract of partnership which under the old Civil

    Code brought about the separate juridical personality of a civil

    partnership;

  • 9

    (b) Commercial partners were solidarily liable for partnership

    debts, albeit in a subsidiary manner, and therefore had the benefit

    of excussion (Viuda de Chan Diaco v. Peng, 53 Phil. 906 [1928]); while civil partners were primarily but only jointly (pro-rata) liable for partnership debts (Co-Pitco v. Yulo, 8 Phil. 544 [1907]); and

    (c) Commercial partnerships were deemed to be, and subject to

    Code of Commerce provisions for, merchants.

    As was aptly observed in Compania Agricola de Ultramar v. Reyes, 4 Phil. 2 (1904), the distinction between civil and commercial

    partnerships was critical under the old set-up because it determined

    the applicable rules for registration, liability for the members, and

    the rights and manner of dissolution.

    At the onset of Philippine jurisprudential development, it was

    recognized inPrautch v. Hernandez, 1 Phil. 705 (1903), that a commercial or mercantile partnership had for its object the pursuit of industry or commerce, and was then treated like a merchant that must necessarily be governed by the Code of Commerce and had to

    comply with the registration requirements thereof to lawfully come

    into existence.

    In a commercial partnership, both the partnership and the separate

    partners thereof may be joined in one action, but the private

    property of the partners could be taken in payment of the

    partnership debts only after the common property of the

    partnership had been exhausted. (La Compaia Maritima v. Muoz, 9 Phil. 326 [1907]).

    The commercial partnership under the Code of Commerce tended to

    be a more solemn affair, and when it failed to register its articles of

    partnership in the mercantile registry, it did not become a juridical

    person nor did it have any personality distinct from the personality

    of the individuals who composed it (Hung-Man-Yoc v. Kieng-Chiong-Seng, 6 Phil. 498 [1906];Bourns v. Carman, 7 Phil. 117 [1906]; Ang Seng Quen v. Te Chico, 7 Phil. 541 [1907]); and therefore could not also maintain an action in its namePrautch, etc. v. Hernandez, 1 Phil. 705 [1903]).

  • 10

    In Kwong-Wo-Sing v. Kieng-Chiong-Seng, 6 Phil. 498 (1906), which involved a commercial partnership, but the requirements of the

    Code of Commerce for the execution of public document and

    registration in the mercantile registry (Art. 119, Code of Commerce)

    were not complied with, the Supreme Court held that the alleged

    partnership never had any legal existence nor has it acquired any

    juridical personality in the acts and contracted executed and made

    by it, (Ibid, at pp. 500-501) and what was applied was Article 119 of the Code of Commerce which made liable for the debts incurred

    by such partnership de facto the persons in charge of the

    management of the association . . . together with persons not

    members of the association with whom they may have transaction

    business in the name of the same. (Ibid, at p. 500.) Thus, the legal consequence of failing to comply with the registration

    requirements under the Code of Commerce was to make the acting

    partners personally and primarily liable for all partnership debts.

    The doctrine is similar to the agency doctrine that an agent who

    enters into a transaction on behalf of a non-existing principal

    becomes personally liable for the obligations incurred thereby.

    In contrast, in Dietrich v. Freedman, 18 Phil. 341 (1911), where the civil partnership was engaged in the laundry business and governed

    by the provisions of the Civil Code, it was held that the partnership

    existed as a separate juridical person even when no formal

    partnership agreement was entered into and registered, and

    thereby the obligations of the partners for partnership debts were

    held to be pro-rata.

    Nonetheless, the registration requirements under the Code of

    Commerce were never interpreted to undermine the obligatory force

    of contracts entered into in the name of the commercial partners.

    Thus, it was held inPrautch, etc. v. Jones, 8 Phil. 1 (1907), and affirmed in Ang Seng Quen v. Te Chico, 12 Phil. 547 (1909), that while an unregistered commercial partnership and association has

    no juridical personality, and as such cannot maintain an action in

    the partnership name, nevertheless, the individual members may

    sue jointly as individuals, and persons dealing with them in their

    joint capacity will not be permitted to deny their right to do so.

  • 11

    It was held in De los Reyes v. Lukban, 35 Phil. 757 (1916), and affirmed in Philippine National Bank v. Lo, 50 Phil. 802 (1927), that under the Code of Commerce, where the partners liability for a

    partnership debt was only secondary or subsidiary, their right of

    excussion was deemed already satisfied where at the time the

    judgment was executed against the partnership they were unable to

    show that there were still partnership assets, or when a writ of

    execution against the partnership had been returned not fully

    satisfied.

    There was under the old set-up the debate of whether a partnership

    can choose which set of laws should govern it; or whether a group

    of co-venturers can choose by the expediency of registration under

    the old Civil Code or under the Code of Commerce, of whether to

    organize a civil or a commercial partnership. In Prautch, et. v. Hernandez, 1 Phil. 705 (1903), it was held

    If that section includes commercial partnerships then such a

    partnership can be organized under it selecting from the Code of

    Commerce such of its provisions as are favorable to the partners

    and rejecting such as are not, and even including in its articles of

    agreement the right to do things which by that Code are expressly

    prohibited. Such a construction would allow a commercial

    partnership to use or dispense with the Code of Commerce as best

    suited its own ends. (Ibid, at pp. 707-708)

    . . . Is a commercial partnership distinguished from a civil one by

    the object to which it is devoted or by the machinery with which it is

    organized? We think that the former distinction is the true one. The

    Code of Commerce of 1829 distinctly provided that those

    partnership were mercantile which had for their object an operation

    of commerce. (Art. 264.). x x x . The Code of Commerce declares

    the manner in which commercial partnerships can be organized.

    Such organization can be effected only in certain well-defined ways.

    The provisions of this Code were well known when the Civil Code

    was adopted. The author of that Code when writing article 1667,

    having in mind the provisions of the Code of Commerce, did not say

    that a partnership may be organized in any form, which would have

  • 12

    repealed the said provisions of the Code of Commerce, but did say

    instead that a civil partnership may be organized in any form.

    Subsequently, in Compania Agricola de Ultramar v. Reyes, 4 Phil. 2 (1904), what the Supreme Court held critical was proper application

    of Article 1670 of the old Civil Code which provided that civil

    partnerships, on account of the objects to which they are devoted,

    may adopt all the forms recognized by the Commercial Code, and

    thereby held that

    It will be seen from this provision that whether or not partnerships

    shall adopt the forms provided for by the Civil or Commercial Codes

    is left entirely to their discretion. And furthermore, that such civil

    partnerships shall only be governed by the forms and provisions of

    the Commercial Code when they expressly adopt them, and then

    only in so far as they (rules of the Commercial Code) do not conflict

    with the provisions of the Civil Code. In this provision the legislature

    expressly indicates that there may exist two classes of commercial

    associations, depending not upon the business in which they are

    engaged but upon the particular form adopted in their organization.

    . . We are inclined to the belief that the respective codes, Civil and

    Commercial, have adopted a complete system for the organization,

    control, continuance, liabilities, dissolutions, and juristic

    personalities of associations organized under each. . . It is our

    opinion that associations organized under the different codes are

    governed by the provisions of the respective code. (Ibid, at pp. 10-11)

    b. Significance of Knowing the Historical Distinctions

    Between Civil and Commercial Partnerships

    What may be considered as a good development in our present Law

    on Partnerships is the removal of the distinctions between civil and

    commercial partnerships, and which are now governed by a

    common set of laws, i.e., the relevant provisions of the New Civil Code. The main drawback of such a development is that even

    commercial partnerships (and admittedly there may not be quite a

  • 13

    number operating due to the availability of the corporate medium),

    would find themselves governed by non-commercial doctrines, such

    as the non-central role of the institution of registration. And in fact,

    many issues have arisen under our current Law on Partnerships

    arising from having adopted in the New Civil Code provisions from

    the Code of Commerce on registration requirements.

    In addition, the civil-coding of some of the provisions of the Code

    of Commerce which were copied into the New Civil Code, should

    provide a better understanding of the legal consequences of current

    provisions of the Philippine Law on Partnerships, and a better

    constructions of the effects they have on the commercial field, by

    providing a comparison with the old jurisprudential rulings for

    commercial partnerships under the provisions of the Code of

    Commerce.

    oOo

  • 14

    2 THREE LEVELS OF EXISTENCE OF PARTNERSHIPS

    [Updated: 23 August 2010]

    III. THREE LEVELS OF EXISTENCE OF PARTNERSHIPS

    The Law on Partnerships under the New Civil Code treats of the

    partnership in three levels of existence, namely:

    (a) As a contractual relationship between and among the partners;

    (b) As a means or medium of doing business, through the structure of separate juridical personality, or as the basis of creating multi-

    leveled contractual relations among various parties; and

    (c) As a business enterprise, or a business venture, or what is termed in other disciplines as a going concern.

    Knowing the three levels at which the Law on Partnerships treats

    the partnership arrangement is important in determining the legal

    significance of the various provisions of the New Civil Code

    regulating partnerships, as well as a manner of appreciating the

    doctrinal value of such provisions.

    1. Illustrative Interplay of the Tri-Level Existence of the

    Partnership

    It would be important to illustrate the legal interplay between the

    three (3) levels of partnership existence, and the legal doctrines

    that result from such interplay. For this purpose we will use the

    decision of the Supreme Court inYu v. NLRC, 224 SCRA 75 (1993).

  • 15

    In that decision, the facts indicated that a limited partnership was

    duly registered with the firm name of Jade Mountain Products Company Limited (Jade Mountain), with the partnership business consisting of exploiting a marble deposit found on land

    situated in Bulacan, but with the partnership having its main office

    in Makati, Metropolitan Manila. Benjamin Yu was for many years the

    Assistant General Manager of the partnership business, but only half

    of his contracted salary was paid under the agreement that the rest

    would be paid when the partnership is able to source more funding.

    Majority of the partners eventually sold their equity (about 82%)

    and the business to a new set of investors who retained the

    business enterprise under the original name of Jade Mountain, but

    moved the head office to Mandaluyong. When Benjamin Yu learned

    later of the new address he proceeded to Mandaluyong but was told

    that the new partnership did not wish to retain his services. He then

    sought to recover from the new partnership his salary claims which

    accrued with the original partnership.

    Benjamin Yu filed a complaint for illegal dismissal and recovery of

    unpaid salaries accruing from November 1984 to October 1988,

    moral and exemplary damages and attorneys fees, against Jade

    Mountain under the new partnership. The new partners contended

    that Mr. Yu was never hired as an employee by the present or new

    partnership. One of the issues raised was whether the new

    partnership could be held liable for the claims of Yu pertaining to

    the old partnership which had been dissolved due to the withdrawal

    of the leading partners.

    The basic contention of Mr. Yu was the principle that a partnership

    has a juridical personality separate and distinct from that of each of

    its members, which subsisted notwithstanding changes in the

    identities of the partners. Consequently, the employment contract

    between Benjamin Yu and the partnership and the partnership Jade

    Mountain could not have been affected by changes in the latters

    membership.

    The Court defined the inextricable link of the contract of partnership

    between the original partners and the juridical personality that

    arose from the nexus of that contract, and that when the contract

  • 16

    was rescinded with the withdrawal of the majority of the partners,

    then the partnership was dissolved and its separate juridical

    personality ceased to exists to cover the new set of partners, thus:

    Two (2) main issues are thus posed for our consideration in the case

    at bar:

    (1) whether the partnership which had hired petitioner Yu as

    Assistant General Manager had been extinguished and replaced by a

    new partnership composed of Willy Co and Emmanuel Zapanta; and

    (2) if indeed a new partnership had come into existence, whether

    petitioner Yu could nonetheless assert his rights under his

    employment contract as against the new partnership.

    In respect of the first issue, we agree with the result reached by the

    NLRC, that is, that the legal effect of the changes in the

    membership of the partnership was the dissolution of the old

    partnership which had hired petitioner in 1984 and the emergence

    of a new firm composed of Willy Co and Emmanuel Zapanta in

    1987. (Ibid, at p. 80.)

    The Court held that the applicable rule would be Article 1828 of the

    Civil Code which defines dissolution of a partnership [as] the

    change in the relation of the partners caused by any partner ceasing

    to be associated in the carrying on as distinguished from the

    winding up of the business. Nonetheless, the determination of the

    right of Mr. Yu to recover from the new partnership which

    constituted its own separate juridical personality was based on the

    fact that it continued the old business enterprise of the dissolved

    partnership, thus:

    In the ordinary course of events, the legal personality of the

    expiring partnership persists for the limited purpose of winding up

    and closing of the affairs of the partnership. In the case at bar, it is

    important to underscore the fact that the business of the old

    partnership was simply continued by the new partners, without the

    old partnership undergoing the procedures relating to dissolution

    and winding up of its business affairs. In other words, the new

  • 17

    partnership simply took over the business enterprise owned by the

    preceding partnership, and continued using the old name of Jade

    Mountain Products Company Limited, without winding up the

    business affairs of the old partnership, paying off its debts,

    liquidating and distributing its net assets, and then re-assembling

    the said assets or most of them and opening a new business

    enterprise. There were, no doubt, powerful tax considerations which

    underlay such an informal approach to business on the part of the

    retiring and the incoming partners. It is not, however, necessary to

    inquire into such matters.

    What is important for present purposes is that, under the above

    described situation, not only the retiring partners (Rhodora Bendal,

    et al.) but also the new partnership itself which continued the

    business of the old, dissolved, one, are liable for the debts of the

    preceding partnership. In Singson, et al. v. Isabela Saw Mill, et al., the Court held that under facts very similar to those in the case at

    bar, a withdrawing partner remains liable to a third party creditor of

    the old partnership. The liability of the new partnership, upon the

    other hand, in the set of circumstances obtaining in the case at bar,

    is established in Article 1840 of the Civil Code. . .(Ibid, at pp. 81-82)

    Yu therefore recognized the applicability of the successor liability arising from business enterprise transfer (i.e., that the creditors of the business enterprise have a right to recover payment of their

    claims against the transferee of the business enterprise), and

    recognized that the business enterprise transfer doctrine is

    governed in details under Article 1840 of the Civil Code.

    Yu also recognized one of the principles in business enterprise transfers, that the new owners of the business enterprise do have a

    right to choose who would be employed in their newly acquired

    business, and they cannot be compelled to maintain the

    employment contracts of the managers and employees existing with

    the transferor, thus:

    It is at the same time also evident to the Court that the new

    partnership was entitled to appoint and hire a new general or

  • 18

    assistant general manager to run the affairs of the business

    enterprise taken over. An assistant general manager belongs to the

    most senior ranks of management and a new partnership is entitled

    to appoint a top manager of its own choice and confidence. The

    non-retention of Benjamin Yu as Assistant General Manager did not

    therefore constitute unlawful termination, or termination without

    just or authorized cause. We think that the precise authorized cause

    for termination in the case at bar was redundancy. 10 The new

    partnership had its own new General Manager, apparently Mr. Willy

    Co, the principal new owner himself, who personally ran the

    business of Jade Mountain. Benjamin Yus old position as Assistant

    General Manager thus became superfluous or redundant. 11 It

    follows that petitioner Benjamin Yu is entitled to separation pay at

    the rate of one months pay for each year of service that he had

    rendered to the old partnership, a fraction of at least six (6) months

    being considered as a whole year. (Ibid, at p. 83-84.)

    Another illustrative case is the decision in United States v. Clarin, 17 Phil. 84 (1910), where a partner filed estafa charges against his co-

    partners for the latters failure to deliver to him his half of the

    profits from the partnership venture. In denying the applicability of

    the charges of estafa the Court held

    The P172 having been received by the partnership, the business

    commenced and profits accrued, the action that lies with the

    partner who furnished the capital for the recovery of his money is

    not a criminal action for estafa, but a civil one arising from the

    partnership contract for a liquidation of the partnership and a levy

    on its assets if there should be any. x x x [Estafa] . . . does not

    include money received for a partnership; otherwise the result

    would be that, if the partnership, instead of obtaining profits,

    suffered losses, as it could not be held liable civilly for the share of

    the capitalist partner who reserved the ownership of the money

    brought in by him, it would have to answer to the charge of estafa,

    for which would be sufficient to argue that the partnership had

    received money under the obligation to return it. The complaint for

    estafa is dismissed without prejudice to the institution of a civil

  • 19

    action. (Ibid, at p. 86. See also People v. Alegre, (CA) 48 O.G. 5341 [1952]).

    The ruling in Clarin should be distinguished from that in People v. de la Cruz, (G.R. No. 21732 [1957], 03 September 1924, cited in People v. Campos, (CA) 54 O.G. 681 [1957]) where the industrial partner was held liable for estafa for appropriating money that has

    been given to him by the capitalist partner for a particular

    transaction. The doctrine was reiterated in Liwanag v. Court of Appeals, 281 SCRA 255 (1997), Thus, even assuming that a contract of partnership was indeed entered into by and between the

    parties, we have ruled that when money or property have been

    received by a partner for a specific purpose (such as that obtaining

    in the instant case) and he later misappropriated it, such partner is

    guilty of estafa.

    Perhaps the interplay of the various levels of existence of the

    partnership arrangement is best exemplified by the decision of the

    Supreme Court inRojas v. Maglana, 192 SCRA 110 (1990). In that case, a partnership was constituted between Rojas and Maglana to

    operate timber forest products concession, and articles of co-

    partnership were duly executed and registered with the SEC using

    the firm name Eastcoast Development Enterprises. Later, the partners took in an industrial partner, whereby they executed an

    Additional Agreement which essentially adopted the registered

    articles but covering the acceptance of an industrial partner, which

    agreement was not duly registered with the SEC, and the

    partnership operated under the original registered firm name.

    Shortly thereafter, the original partners bought out the interest,

    share and participation of the industrial partner in the firm, and the

    partnership was continued without the benefit of any written

    agreement or reconstitution of their written articles of co-

    partnership.

    When Rojas entered into a separate management contract with

    another logging enterprise and withdrew his equipment from the

    partnership, Maglana made a formal demand against Rojas for the

    payment of his promised contribution to the partnership and

    compliance with his obligation to perform the duties of logging

  • 20

    superintendent as provided expressly in the registered articles of

    co-partnership. When Rojas responded that he would not be able to

    comply with his promised contribution and will not work as logging

    superintendent for the partnership, Maglana gave notice of the

    dissolution of the partnership. In the suit that ensued between the

    partners, one of the issues that had to be resolved by the Court was

    the nature of the partnership and the legal relationship of Rojas and

    Maglana after the retirement of the industrial partner from the

    second partnership.

    On this issue, the trial court ruled that the second partnership

    superseded the first partnership, so that when the second

    partnership was dissolved by the withdrawal of the industrial

    partner, there being no written contract of co-partnership when it

    was continued by the two original partners, there was no

    reconstitution of the original partnership, and consequently the

    partnership that was continued between Rojas and Maglana was

    a de factopartnership at will. In overruling the court a quo, the Court held

    . . . [I]t appears evident that it was not the intention of the partners

    to dissolve the first partnership, upon the constitution of the second

    one, which they unmistakable called an Additional Agreement . . .

    Except for the fact that they took in one industrial partner, gave him

    an equal share in the profits and fixed the term of the second

    partnership to thirty (30) years, everything else was the same.

    Thus, they adopted the same name, . . . they pursued the same

    purposes and the capital contributions of Rojas and Maglana as

    stipulated in both partnership call for the same amounts. Just as

    important is the fact that all subsequent renewal of Timber License

    No. 35-36 were secured in favor of the First Partnership, the original

    licensee. . . To all intents and purpose therefore, the First Articles of

    Partnership were only amended, in the form of Supplementary

    Articles of Co-Partnership . . . which was never registered . . .

    Otherwise stated, even during the existence of the second

    partnership, all business transactions were carried out under the

    duly registered articles. (Ibid, at pp. 117-118)

    The Court then proceeded to hold that

  • 21

    On the other hand, there is no dispute that the second partnership

    was dissolved by common consent. Said dissolution did not affect

    the first partnership which continued to exist as shown by the

    subsequent acts of the original partners carrying one with the

    original partnership business and confirming the obligations

    constituted under the original articles of partnership. The conclusion

    of the Court was thus: Under the circumstances, the relationship of

    Rojas and Maglana after the withdrawal of [the industrial partner]

    can neither be considered as a de facto partnership, nor a

    partnership at will, for as stressed, there is an existing partnership,

    duly registered. (Ibid, at p. 118)

    Rojas therefore affirms two important aspects in Partnership Law: Firstly, that registration of the contract of partnership with the SEC has the legal effect of binding the partners (and perhaps even

    third parties dealing with the partnership), as to the contractual

    obligations, the rights and duties of the partners, and which has

    effective force even as the partnership undergoes changes within its

    constitution by the acceptance into and withdrawal of partners into

    the venture. Secondly, the underlying business enterprise, the manner of its operation, has much legal influence of determining

    the contractual intents of the partners in the determination of inter-

    partnership rights and obligations.

    oOo

  • 22

    3 PARTNERSHIP IS PRIMARILY A CONTRACTUAL RELATIONSHIP

    [Updated: 23 August 2010]

    III. PARTNERSHIP IS PRIMARILY A CONTRACTUAL

    RELATIONSHIP

    _____

    Art. 1767. 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. (1665a)

    Art. 1770. A partnership must have a lawfu object or

    purpose, and must be established for the common benefit or

    interest of the partners.

    Art. 1771. A partnership may be constituted in any

    form, except where immovable property or real rights are

    contributed thereto, in which case a public instrument shall

    be necessary. (1667a)

    Art. 1784. A partnership begins from the moment of

    the execution of the contract, unless it is otherwise

    stipulated. (1679)

    _____

  • 23

    Article 1767 of the Civil Code defines a contract of partnership as

    one where 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, and includes in its

    coverage the exercise of a profession pursued in partnership form.

    The fact that a partnership is first and foremost a contractual

    relationship, means that it is subject to the rules, principles and

    doctrines pertaining to contracts in general, but modified in the

    sense that a partnership is at the same time a medium of doing

    business or a device for undertaking a venture. This means that

    the Law on Partnerships must balance between the principles

    governing the relationship of partners among themselves as

    contractual parties, and also their rights and obligations with

    respect to the business venture or undertaking that brought them

    together in the first place. In other words, parties to a partnership

    do not come together for the sake of coming together, but in order

    to achieve as a group, a business venture or undertaking. The

    various provisions of the Law on Partnerships embodied in the Civil

    Code address either separately or coordinately these levels of

    existence of a partnership: as contractual relationship, and as a

    means of doing business.

    An example showing the essence of a partnership as a contract is

    provided under Article 1771 which bears the doctrine of

    consensuality governing contracts in general: A partnership may

    be constituted in any form, except where immovable property or

    real rights are contributed thereto, in which case a public

    instrument shall be necessary. Article 1770 also embodies the

    principle that the provisions of law are deemed incorporated into

    every contract, even a contract of partnership as it provides that A

    partnership must have a lawful object or purpose.

    The primary doctrine that first and foremost the partnership must

    find its nexus in a contractual relationship is exemplified in the

    decision in Lyons v. Rosentock, 56 Phil. 632 (1932). In that case, Lyons and Elser were already partners in particular real estate

    undertakings. Subsequently, Lyons became interested in purchasing

    for the venture the San Juan estate, and moved forward towards

  • 24

    negotiating its acquisition and communicating to Elser in the United

    States to join him in the venture. Elser wrote back clearly indicating

    that he was not joining Lyons in the San Juan estate venture. The

    Court held that the fact that Lyons had used as security for the

    acquisition of the San Juan estate one of the partnership properties

    in anticipation that Elser would accept the partnership arrangement,

    but which Elser definitive refused and the partnership property was

    substituted by Lyons separate property to secure the venture, did

    not make Lyons a partner in the San Juan estate venture, since

    there was never any meeting of minds to constitute such

    partnership. Lyons demonstrate that before there can be a partnership enterprise, it is necessary that there must having been

    a meeting of minds to constitute a contract of partnership.

    1. Characteristics of the Partnership Contract

    a. Nominate and Principal

    The contract of partnership is a nominate contract, not only because

    it has been given a specific name under the New Civil Code, but it is

    a principal contract and can exists on its own upon the essential

    elements coming together at perfection; and that once created

    there is a set of rules (Law on Partnerships of the New Civil Code)

    that govern such contract, and the parties to such contract cannot

    refuse generally to be governed by such provisions. Thus, Article 45

    of the Civil Code provides that Partnerships and associations for

    private interest or purpose are governed by the provisions of this

    Code concerning partnerships.

    To illustrate the nominate and principal nature of the contract of

    partnership,Fernandez v. Dela Rosa, 1 Phil. 671 (1903), held that

    The essential points upon which the minds of the parties must meet

    in a contract of partnership are, therefore, (1) mutual contribution

    to a common stock, and (2) a joint interest in the profits. If the

    contract contains these two elements the partnership relation

    results, and the law itself fixes the incidents of this relation if the

  • 25

    parties fail to do so. In resolving the motion for reconsideration on

    in original decision, the Court even held that It is of no importance

    that the parties have failed to reach an agreement with respect to

    the minor details of contract. These details pertain to the accidental

    and not to the essential part of the contract.(Ibid, at p. 680. Also Fue Leung v. IAC, 169 SCRA 746 [1989]).

    b. Consensual

    A contract of partnership is essentially consensual, it is perfected

    upon meeting of the minds of the parties of the subject matter to

    undertake a business venture, and the consideration, which is the

    obligation to contribute of money, property or service to a common

    fund. Whether the business enterprise is actually constituted or set-

    up, or whether or not the contributions have been made into the

    partnership coffers, do not detract from the coming into existence of

    a valid partnership contract. And failure to comply with the

    undertaking to deliver the promised contribution does not make a

    contract of partnership void, but merely gives a ground for its

    dissolution.

    Thus, in the early decision in Fernandez v. De la Rosa, 1 Phil. 671 (1903), the Court held that The execution of a written agreement

    was not necessary in order to give efficacy to the verbal contract of

    partnership as a civil contract, the contributions of the partners not

    having been in the form of immovables or rights in

    immovables. (Ibid, at p. 677). This feature of consensuality of a contract of partnership is now embodied in Article 1772 which

    provides that A partnership may be constituted in any form except

    where immovable property or real rights are contributed thereto, in

    which case a public instrument shall be necessary.

    Although Articles 1772 and 1773 provide for public instrument and

    registration when the capital contribution is more than P3,000.00,

    and that of an inventory attached to the public instrument whenever

    immovable property is contributed, nonetheless jurisprudence even

  • 26

    discount the nullity of the resulting contract of partnership, as will

    be discussed hereunder.

    In Estanislao, Jr. v. Court of Appeals, 160 SCRA 830 (1988), the Court held that when members of the family leased out a parcel of

    land to SHELL Company, and used the advance rentals paid them to

    allow one of their members to capitalize the dealership with SHELL,

    then a partnership has been constituted among them:

    There is no doubt that the parties hereto formed a partnership when

    they bound themselves to contribute money to a common fund with

    the intention of dividing the profits among themselves. The sole

    dealership by the petitioner and the issuance of all government

    permits and licenses in the name of petitioner was in compliance

    with the [policy that a dealership can only be granted to one

    person] of SHELL and the understanding of the parties of having

    only one dealer of the SHELL products. (Ibid, at p. 837.)

    In essence, Estanislao demonstrates that it is the true meeting of the minds of the parties (in this case, to pursue a common venture

    as a family group) that shall govern the rights and obligations of the

    contracting parties, and not the evidence of a purported agreement

    (in this case the dealership agreement being registered only in the

    name of a brother).

    In contrast, in Yulo v. Yang Chiao Seng, 106 Phil. 111 (1959), the parties executed a partnership agreement, to conduct and carry

    on the business of operating a theatre for the exhibition of motion

    and talking pictures; nonetheless, the Court held that the real

    intention of the parties was to effect a sub-lease of the property and

    the partnership agreement was resorted to in order to avoid the

    provision in the main lease agreement prohibiting a sublease of the

    premises. The Court took into consideration the following actuations

    of the supposed Yulo partner to show that there as never a real

    agreement to form a partnership, thus:

    In the first place, plaintiff did not furnish the supposed P20,000

    capital. In the second place, she did not furnish any help or

    intervention in the management of the theatre. In the third place, it

  • 27

    does not appear that she has ever demanded from defendant any

    accounting of the expenses and earnings of the business. Were she

    really a partner, her first concern should have been to find out how

    the business was progressing, whether the expenses were

    legitimate, whether the earnings were correct, etc. She was

    absolutely silent with respect to any of the acts that a partner

    should have done; all that she did was to receive her share of

    P3,000 a month, which can not be interpreted in any manner than a

    payment for the use of the premises which she had leased from the

    owners. Clearly, plaintiff had always acted in accordance with the

    original letter of defendant of June 17, 1945 (Exh. A), which

    shows that both parties considered this offer as the real contract

    between them. (Ibid, at p. 117.)

    Yulo demonstrates the principle that a contract of partnership is consensual in nature and is constituted by the real meeting of the

    minds; such that even when formal articles of partnership are

    drawn-up between the parties, when it fact the evidence shows that

    they never intended to enter into a partnership, the article of

    partnership cannot create a partnership when in fact there has

    never been a meeting of minds to constitute one.

    In contrast, we view the decision in Woodhouse v. Halili, 93 Phil. 526 (1953), as a little dubious when it distinguishes between the

    obligation to enter into a contract of partnership, from that of

    executing the certificate of partnership itself. In Woodhouse, the plaintiff and the defendant had come to an agreement to enter into

    a partnership business to bottle and distribute an American brand

    softdrinks in the Philippines; and that defendant, who would

    primarily finance the business, agreed to grant plaintiff the right to

    receive 30% of the profits under his obligation to secure the bottling

    franchise for the venture. When the venture was eventually set-up,

    the defendant had refused to finalize the articles of partnership

    when he learned during the negotiations in the United States that

    plaintiff did not have for himself the bottling franchise he promised

    he had secured. The plaintiff brought action to have the articles of

    partnership executed and to receive his 30% share in the earnings.

    Prescinding from the language of the original agreement executed

  • 28

    between the parties that the very language of the agreement that

    the parties intended that the execution of the agreement to form a

    partnership was to be carried out at a later date. They expressly

    agreed that they shall form a partnership, (Ibid, at p. 539) the Court held

    As the trial court correctly concluded, the defendant may not be

    compelled against his will to carry out the agreement nor execute

    the partnership papers. Under the Spanish Civil Code, the defendant

    has an obligation to do, not to give. The law recognizes the

    individuals freedom or liberty to do an act he has promised to do,

    or not to do it, as he pleases. It falls within what Spanish

    commentators call a very personal act (acto personalisimo), of

    which courts may not compel compliance, as it is considered an act

    of violence, to do so. (Ibid, at p. 539.)

    We disagree with the afore-quoted ruling of the Court in that it fails

    to appreciate the consensual nature of a contract of partnership,

    and that the moment the parties come to an agreement which

    basically embodies the formation of a common fund with the

    intention of dividing the profits, as was the case between the parties

    in Woodhouse, a contract of partnership arises, and the incidents thereof governed by Partnership Law, even in the absence of a

    formal certificate or articles of co-partnership.

    Only recently, Tocao v. Court of Appeals, 342 SCRA 20 (2000), summarized the prevailing doctrine on the nature of the contract of

    partners, thus

    To be considered a juridical personality, a partnership must fulfill

    these requisites: (1) two or more persons bind themselves to

    contribute money, property or industry to a common fund; and (2)

    intention on the part of the partners to divide the profits among

    themselves. It may be constituted in any form; a public instrument

    is necessary only where immovable property or real rights are

    contributed thereto. This implies that since a contract of partnership

    is consensual, an oral contract of partnership is as good as a written

    one. Where no immovable property or real rights are involved, what

    matters is that the parties have complied with the requisites of a

  • 29

    partnership. The fact that there appears to be no record in the

    Securities and Exchange Commission of a public instrument

    embodying the partnership agreement pursuant to Article 1772 of

    the Civil Code did not cause the nullification of the partnership. . .

    (Ibid, at pp. 30-31.)

    Tocao held that so long as the two essential elements of a partnership are present, then the fact that the business was

    operated under the name of a registered sole proprietorship was of

    no moment, especially when the registration of the business name

    with the Bureau of Domestic Trade was only for purpose of being

    able to secure such business name. (Ibid, at p. 36.)

    c. Onerous and Bilateral

    The onerous and bilateral characteristics of the contract of

    partnership are demonstrated by the fact that the existence of a

    partnership requires an agreement for the creation of a common

    fund from the contributions of the partners, which may either be in

    money, property or industry. Under Article 1786, a partner becomes

    by its very constitution, a debtor of the partnership for whatever he

    may have promised to contribute thereto. All partners are bound to

    contribute to the common fund, or to the partnership, including

    even the industrial partner who is bound to contribute his service.

    d. Preparatory and Progressive

    A contract of partnership is not entered into for the sake of merely

    creating a contractual relationship between and among the

    partners, but primarily to pursue a business enterprise

    (i.e., creation of a common fund with intent to share profits and losses). Consequently, falling within the contractual meeting of the

    minds of the parties is that the inter-partnership relationship

    continues to evolve as the underlying business enterprise itself

    evolves and progresses. In other words, the contract of partnership

  • 30

    is simply the base upon which other contracts and various other

    transactions are to be pursued with the public, and for which the

    partners shall continually adjust their working relationships. The

    operation of the underlying business enterprise also determines the

    nature and value of the equity of the partners. Thus, when the

    nexus of the contract of partnership (the common fund and

    intention to divide the profits and losses) have been constituted,

    other contractual relationships are expected to flow therefrom as a

    matter of course.

    An early illustration of the preparatory and progressive nature of the

    contract of partnership can be found in the decision in Fernandez v. De la Rosa, 1 Phil. 671 (1903), where once the elements of contribution to a common fund and understanding of sharing of

    profits had been clearly established between the parties, a contract

    of partnership arose and all the incidents arising therefrom

    automatically engendered even if the parties have not yet decided

    upon the details of their relationship, thus

    . . . We have already stated in the opinion what are the essential

    requisites of a contract of partnership . . . Considering as a whole

    the probatory facts which appears from the record, we have

    reached the conclusion that plaintiff and the defendant agreed to

    the essential parts of that contract, and did in fact constitute a

    partnership, with the funds of which were purchased the cascoes

    with which this litigation deals, although it is true that they did not

    take precaution to precisely establish and determine from the

    beginning the conditions with respect to the participation of each

    partner in the profits or losses of the partnership. The

    disagreements subsequently arising between them, when

    endeavoring to fix these conditions, should not and cannot produce

    the effect of destroying that which has been done, to the prejudice

    of one of the partners, nor could it divest his rights under the

    partnership which had accrued by the actual contribution of capital

    which followed the agreement to enter into a partnership, together

    with the transactions effected with partnership funds. The law has

    foreseen the possibility of the constitution of a partnership without

    an express stipulation by the partners upon those conditions, and

  • 31

    has established rules which may serve as a basis for the distribution

    of profits and losses among the partners. . . We consider that the

    partnership entered into by the plaintiff and the defendant falls

    within the provision of this article. (Ibid, at pp. 680-681.)

    oOo

  • 32

    4 ESSENTIAL ELEMENTS OF THE CONTRACT OF PARTNERSHIP

    [Updated: 12 October 2009]

    IV. ESSENTIAL ELEMENTS OF THE CONTRACT OF

    PARTNERSHIP

    ______

    Art. 1767. 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. (1665a).

    Art. 1770. A partnership must have a lawful object or

    purpose, and must be established for the common benefit or

    interest of the partners.

    When an unlawful partnership is dissolved by a judicial

    decree, the profits shall be confiscated in favor of the State,

    without prejudice to the provisions of the Penal Code

    governing the confiscation of the instruments and effects of

    a crime. (1666a)

    Art. 1771. A partnership may be constituted in any

    form, except where immovable property or real rights are

  • 33

    contributed thereto, in which case a public instrument shall

    be necessary. (1667a)

    Art. 1784. A partnership begins from the moment of

    the executio of the contract, unless it is otherwise stipulated.

    (1679).

    _____

    The Law on Partnership under the New Civil Code begins with its

    definition under Article 1776 as contract of partnership,

    emphasizing that first and foremost the nexus of the legal

    relationship is contractual in nature. As in any other contract, the

    essential elements for a contract of partnership to be valid would be

    as follows:

    (a) CONSENT: The meeting of minds between two or more persons

    to form a partnership (i.e., to pursue jointly a business enterprise, or to jointly exercise a profession);

    (b) SUBJECT MATTER: The creation of a common fund or more

    specifically, to undertake a business venture with the intention of

    dividing the profits among themselves, or in the case of a

    professional partnership, to exercise together a common

    profession; and

    (c) CONSIDERATION: The contribution of cash, property or

    service to the business venture.

  • 34

    1. Element of CONSENT

    ______

    Art. 1769. In determining whether a partnership

    exists, these rules shall apply:

    (1) Except as provided by Article 1825, pesons who

    are not partners as to each other are not partners as to third

    persons;

    (2) Co-ownership or co-possession does not of itself

    establish a partnership, whether such co-owners or co-

    possessors do or do not share any profits made by the use of

    the property;

    (3) The sharing of gross returns does not of itself

    establish a partnership, whether or not the persons sharing

    them have a joint or common right or interest in any

    property from which the returns are derived;

    (4) The receipt by a person of a share of the profits of

    a business is prima facie evidence that he is a partner in the

    business, but no such inference shall be drawn if such profits

    were received in payment:

    (a) As a debt by installments or otherwise;

    (b) As wages of an employee or rent to a landlord;

    (c) As an annuity to a widow or representative of a

    deceased partner;

  • 35

    (d) As interest on a loan, though the amount of

    payment vary with the profits of the business;

    (e) As the consideration for the sale of a goodwill of a

    business or other property by installments or otherwise. (n)

    _____

    a. Consent to Pursue a Business Jointly Is the Nexus of the

    Partnership Relationship

    The agreement of two or more persons to bind themselves to

    jointly pursue a business venture constitutes the very nexus by

    which the contract of partnership arises under Article 1767 of the

    Civil Code. Under Article 1769 of the Civil Code, in determining

    whether a partnership exists, the first and foremost rule is that

    persons who are not partners as to each other are not partners as

    to third persons. In other words, the general rules is that no

    person can find himself a partner in a partnership, even as to third

    parties, unless he previously consented to be in such contractual

    relationship.

    One does not become a partner, nor is a partnership constituted,

    but the fact alone that they are associated together in situation

    where there is co-ownership or profits earned therefrom. Thus,

    under Article 1769(2), Co-ownership or co-possession does not of

    itself establish a partnership, whether such co-owners or co-

    possessors do or do not share any profits made by the use of the

    property. The essence of every partnership arrangement is

    the consent of each of the partners to be associated in a business venture.

    b. Legal Capacity to Contract

    Parties to a contract of partnership must have legal capacity to

    contract. Under Article 1782, persons who are prohibited from

    giving each other any donation or advantage cannot enter into a

  • 36

    universal partnership. Under Article 87 of the Family Code, a

    married woman may enter into a contract of partnership even

    without her husbands consent, but the latter may object under

    certain conditions.

    c. Admission of New Partner into an Existing Partnership

    Since consent is the nexus of all partnership relationships, the

    principle is exemplified under Article 1804 of the Civil Code which

    provides even in an already existing partnership, that no person

    shall be admitted into a partnership, or become a party to the

    partnership arrangement without the consent of all the partners.

    2. SUBJECT MATTER: Pursuit of a Business Enterprise

    Essentially, the consent or meeting of the minds of the parties in a

    contract of partnership must be upon a particular type of subject

    matter, which essentially is the pursuit of a business enterprise:

    (a) an agreement to contribute to a common fund; and

    (b) with joint interest in the profits and losses thereof.

    The agreement to share profits and losses from the business

    venture is the hallmark of a partnership arrangement. It is also the

    essence of the equity position of the partners vis-a-vis the

    business enterprise, as differentiated from partnership suppliers and

    creditors, and company employees, who bear no proprietary

    interest with the business enterprise they deal with.

    Article 1769 of the Civil Code, in providing for the rules In

    determining whether a partnership exists, states under paragraph

    (4) that The receipt by a person of a share of the profits in

  • 37

    the business is prima facie evidence that he is a partner in the business. In contrast, the same article provides, The sharing of

    gross returns does not of itself establish a partnership, whether or

    not the persons sharing them have a joint or common right or

    interest in any property from which the returns are derived.

    It is fairly implied under Article 1767, as it defines a contract of

    partnership, that the essence of the agreement among the partners

    is to become equity-holders in a business enterprise, because their

    consent must be the creation of a common fund with the intention

    of dividing the profits among themselves. The essence of an equity

    holder is to take the profits from the business, and consequently, to

    absorb also the losses sustained thereby. Therefore, when a person

    is entitled to share in the gross returns of the business venture,

    he is not an equity holder, and if it is operated under the medium of

    a partnership, such person is not a partner in the venture.

    In Santos v. Reyes, 368 SCRA 261 (2001), the fact that in their Articles of Agreement, the parties agreed to divide the profits of a

    lending business in a 70-15-15 manner, with the petitioner getting

    the lions share . . . proved the establishment of a

    partnership, (Ibid, at p. 269.) even when the other parties to the agreement were given separate compensations as bookkeeper and

    creditor investigator.

    In Tocao v. Court of Appeals, 365 SCRA 463 (2001), the Court held that a creditor of a business enterprise cannot seek recovery of his

    claim against the partnership from a person who is without any

    right to participate in the profits and who cannot be deemed as a

    partner in the business enterprise, since the essence of partnership

    is that the partners share in the profits and losses.

    In Moran, Jr. v. Court of Appeals, 133 SCRA 88 (1984), the Court held that

    Being a contract of partnership, each partner must share in the

    profits and losses of the venture. That is the essence of a

    partnership. And even with an assurance made by one of the

    partners that they would earn a huge amount of profits, in the

  • 38

    absence of fraud, the other partners cannot claim a right to recover

    the highly speculative profits. It is a rare business venture

    guaranteed to give 100% profits. (Ibid, at p. 95)

    The Court also held that any stipulation on the payment of a high

    commission to one of the partners must be understood have been

    based on an anticipation of large profits being made from the

    venture; and since the venture sustained losses, then there is no

    basis to demand for the payment of the commissions.

    Nonetheless, even when a person is entitled to share in the profits

    of the business venture, when the legal basis upon such right is

    based by some other contractual relationship not borne out of

    equity or proprietary interests, such as payment of the principal

    and/or interest on a loan or a debt, wages of an employee, rents

    to a landlord, annuity to a widow or representative of a deceased

    partner, or as consideration for the sale of the goodwill of a

    business or other property by installments. In other words, the

    contractual agreement to share in the profits and losses of a

    business venture must always be based upon the assumption of

    equity interest in the business enterprise upon which the contract of

    partnership shall arise.

    a. Co-ownership or Co-Possession Do Not Necessarily

    Constitute a Partnership

    In Navarro v. Court of Appeals, 222 SCRA 675 (1993), the Court held that mere co-ownership or co-possession of property does not

    necessarily constitute the co-owners or co-possessors partners,

    regardless of whether or not they share any profits derived from the

    use of the property, when no indication is shown that the parties

    had intended to enter into a partnership.

    In Obillos, Jr. v. Commissioner of Internal Revenue, 139 SCRA 436 (1985), four brothers and sisters acquired lots with the original

    purpose to divide the lots among themselves for residential

    purposes; when later they found it not feasible to build their

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    residences thereon because of the high cost of construction, they

    decided to resell the properties to dissolve the co-ownership. The

    Court ruled that no partnership was constituted among the siblings,

    since the original intention was merely to collectively purchase the

    lots and eventually to partition them among themselves to build

    their residences; and that in fact they had no choice but to resell

    the same to dissolve the co-ownership. Obillos found that the division of the profits was merely incidental to the dissolution of the

    co-ownership which was in the nature of things a temporary state;

    and that there could not have been any partnership, but merely a

    co-ownership, since there was utter lack of intent to form a

    partnership or joint venture.

    In contrast, in Reyes v. Commissioner of Internal Revenue, 24 SCRA 198 (1968), the Court found that where father and son

    purchased a lot and building and had it administered by an

    administrator, and divided equally the net income, there was a

    partnership formed because profit was the original intention for the

    common fund.

    Likewise in Evangelista v. Collector of Internal Revenue, 102 Phil. 140 (1957), where three sisters bought four pieces of real property

    with every intention to lease them out, and which they in fact

    leased to various tenants and derived rentals therefrom, there was

    a partnership formed.

    b. Receipt By a Person of a Share of the Net Profit

    Under Article 1769(4), the receipt by a person of a share of the net

    profits of a business is prima facie evidence that he is a partner in the business. However, in the following cases, where there is legal

    and contractual basis for the receipt of the profits other than as

    equity holder, there is no partnership constituted, thus:

    (a) As installment payments of debt and/or interests thereof;

    (b) As wages of an employee;

  • 40

    (c) As rentals paid to a landlord;

    (d) As annuity to a widow or representative of deceased partner;

    (e) As consideration of sale of goodwill or other property.

    Thus, in Pastor v. Gaspar, 2 Phil. 592 (1903), the Court held that there was no new partnership formed when a loan was obtained to

    purchase lorchas needed to expand the shipping business of an

    existing shipping partnership venture under the condition that the

    lender would receive part of the profits of the business in lieu of

    interests.

    In Fortis v Gutierrez Hermanos, 6 Phil. 100 (1906), where the terms of the contract provided for the salary of the bookkeeper to be 5%

    of net profits of the business, the same did not make the

    bookkeeper a partner in the business, since it was merely a

    measure of his salary as an employee of the company. To the same

    effect is the ruling in Sardane v. Court of Appeals, 167 SCRA 524 (1988).

    In Bastida v. Menzi & Co., 58 Phil. 188 (1933), the Court held that despite the agreement that Bastida was to receive 35% of the profit

    from the business of mixing and distributing fertilizer registered in

    the name of Menzi & Co., there was never any contract of

    partnership constituted between them based on the following key

    elements: (a) there was never any common fund created between

    the parties, since the entire business as well as the expenses and

    disbursements for operating it were entirely for the account of Menzi

    & Co.; (b) there was no provision in the agreement for reimbursing

    Menzi & Co. in case there should be no profits at the end of the

    year; and (c) the fertilizer business was just one of the many lines

    of business of Menzi & Co., and there were no separate books and

    no separate bank accounts kept for that particular line of business.

    The arrangement was deemed to be one of employment, with

    Bastida contributing his services to manage the particular line of

    business of Menzi & Co.

  • 41

    Tocao v. Court of Appeals, 342 SCRA 20 (2001), held that while it is true that the receipt of a percentage of net profits constitutes

    only prima facieevidence that the recipient is a partner in the business, the evidence in the case at bar controverts an employer-

    employee relationship between the parties. In the first place,

    private respondent had a voice in the management of the affairs of

    the cookware distributorship, including selection of people who

    would constitute the administrative staff and the sales force.

    (Ibid, at pp. 33-34).

    c. Meeting of Minds on the Establishing a Common Fund Is

    the Essence of a Partnership Contract

    All the foregoing examples indicate that what brings about a

    contract of partnership is essentially an agreement to constitute a

    common fund with the intention of dividing the profits and losses;

    outside of these essential elements, a contract of partnership cannot

    subsist.

    The importance of consent, vis-a-vis the elements of common fund

    and intention to divide the profits among themselves, is best

    illustrated in Yulo v. Yang Chiao Seng, 106 Phil. 111 (1959), where in fact the parties had executed formal articles of partnership, and

    yet the Court found that the real intention of the parties was really

    to constitute a relation of sublease between the parties over a

    commercial land where one party (the lessee) was prohibited under

    her main contract of lease from subleasing the property, and the

    other party (the sublessee) wanted to operate a threater in said

    premises. The Court held

    The most important issue raised in the appeal is that contained in

    the fourth assignment of error, to the effect that the lower court

    erred in holding that the written contracts, Exhs. A, B, and C,

    between plaintiff and defendant, are one of lease and not one of

    partnership. We have gone over the evidence and we fully agree

    with the conclusion of the trial court that the agreement was a

    sublease, not a partnership. The following are the requisites of

  • 42

    partnership: (1) two or more persons who bind themselves to

    contribute money, property, or industry to a common fund; (2)

    intention on the part of the partners to divide the profits among

    themselves. (Art. 1767, Civil Code.)

    In the first place, plaintiff did not furnish the supposed P20,000

    capital. In the second place, she did not furnish any help or

    intervention in the management of the theatre. In the third place, it

    does not appear that she has ever demanded from defendant any

    accounting of the expenses and earnings of the business. Were she

    really a partner, her first concern should have been to find out how

    the business was progressing, whether the expenses were

    legitimate, whether the earnings were correct, etc. She was

    absolutely silent with respect to any of the acts that a partner

    should have done; all that she did was to receive her share of

    P3,000 a month, which can not be interpreted in any manner than a

    payment for the use of the premises which she had leased from the

    owners. Clearly, plaintiff had always acted in accordance with the

    original letter of defendant of June 17, 1945 (Exh. A), which

    shows that both parties considered this offer as the real contract

    between them. (Ibid, at pp. 116-117)

    In the more contemporary decision in Estanislao, Jr. v. Court of Appeals, 160 SCRA 830 (1988), the Court affirmed the decision of the trial court Ordering the defendant to execute a public

    instrument embodying all the provisions of the partnership

    agreement entered into between plaintiffs and defendant as

    provided for in Article 1771, Civil Code of the Philippines. In that

    case, the siblings in a family leased out to SHELL a family

    commercial lot for the establishment of a gasoline station, and they

    invested the advanced rentals they received from SHELL to allow

    one their brother to be the registered dealer of SHELL under the

    latters policy of one station, one dealer, and that in fact the

    registered dealer had accounted for the operations to the other

    members of the family. When later on he stopped accounting for the

    operations, and refused to acknowledge the existence of a

    partnership over the gasoline station, the Court held

  • 43

    Moreover other evidence in the record shows that there was in fact

    such partnership agreement between the parties. . . Petitioner

    submitted to private respondents periodic accounting of the

    business. . . gave a written authority to private respondent . . ., his

    sister, to examine and audit the books of their common business

    (aming negosyo). . . . There is no doubt that the parties hereto formed a partnership when they bound themselves to contribute

    money to a common fund with the intention of dividing the profits

    among themselves. The sole dealership by the petitioner and the

    issuance of all government permits and licenses in the name of

    petitioner was in compliance with the afore-stated policy of SHELL

    and the understanding of the parties of having only one dealer of

    the SHELL products. (Ibid, at p. 837)

    The other important aspect is determining whether a partnership

    has been constituted among several persons, is that under our tax

    laws, a partnership is treated like a corporate taxpayer and liable

    separately for income tax for its operations apart from the individual

    income tax liabilities of each of the partners.

    Thus, in Evangelista v. Collector of Internal Revenue, 102 Phil. 140 (1957), three sisters borrowed a huge amount of money from their

    father, and with their personal funds, purchased under several

    transactions real estate properties, and subsequently appointed

    their brother as manager thereof who leased them out to various

    lessees. Eventually, the Collector of Internal Revenue assessed

    them for the payment of corporate income tax they have been

    operating the real estate venture. In arguing that they have never

    formed a partnership, and that they merely constituted themselves

    a co-owners of the properties bought pro indiviso, the Court held

    Pursuant to this article, the essential elements of a partnership are

    two, namely: (a) an agreement to contribute money, property or

    industry to a common fund; and (b) intent to divide the profits

    among the contracting parties. The first element is undoubtedly

    present in the case at bar, for, admittedly, petitioners have agreed

    to, and did, contribute money and property to a common fund.

    Hence, the issue narrows down to their intent in acting as they did.

    Upon consideration of all the facts and circumstances surrounding

  • 44

    the case, we are fully satisfied that their purpose was to engage in

    real estate transactions for monetary gain and then divide the same

    among themselves, because:

    1. Said common fund was not something they found already in

    existence. It was not a property inherited by them pro indiviso.

    They created it purposely. What is more they jointly borrowed a

    substantial portion thereof in order to establish said common fund.

    2. They invested the same, not merely in one transaction, but in a

    series of transactions. . . . The number of lots (24) acquired and

    transactions undertaken, as well as the brief interregnum between

    each, particularly the last three purchases, is strongly indicative of a

    pattern or common design that was not limited to the conservation

    and preservation of the aforementioned common fund or even of

    the property acquired by petitioners in February, 1943. In other

    words, one cannot but perceive a character of habituality peculiar to

    business transactions engaged in for purposes of gain.

    3. The aforesaid lots were not devoted to residential purposes, or to

    other personal uses, of petitioners herein. The properties were

    leased separately to several persons, who, from 1945 to 1948

    inclusive, paid the total sum of P70,068.30 by way of rentals.

    Seemingly, the lots are still being so let, for petitioners do not even

    suggest that there has been any change in the utilization thereof.

    4. Since August, 1945, the properties have been under the

    management of one person, namely, Simeon Evangelista, with full

    power to lease, to collect rents, to issue receipts, to bring suits, to

    sign letters and contracts, and to indorse and deposit notes and

    checks. Thus, the affairs relative to said properties have been

    handled as if the same belonged to a corporation or business

    enterprise operated for profit.

    5. The foregoing conditions have existed for more than ten (10)

    years, or, to be exact, over fifteen (15) years, since the first

    property was acquired, and over twelve (12) years, since Simeon

    Evangelista became the manager.

  • 45

    6. Petitioners have not testified or introduced any evidence, either

    on their purpose in creating the set up already adverted to, or on

    the causes for its continued existence. They did not even try to offer

    an explanation therefore. (Ibid, at pp. 144-146.)

    In other words, the essence of the contract of partnership is that

    the partners contract or bind themselves under a contractual

    arrangement to be joint owners and managers of a business

    enterprise, which is highlighted by the right to receive the net

    profits and share the losses therein. Article 1770 of the Civil Code

    provides that for a partnership contract to be valid it must be

    established for the common benefit or interest of the partners,

    which clearly indicates the equity or proprietorship position of the

    partners. Consequently, if there is no clear meeting of the minds to

    form a partnership venture, the fact that a person participates in

    the gross receipts of a business enterprise or from a property

    arrangement does not make him a partner because he is not made

    to bear the burdens of ownership, i.e., to be liable for expenses and losses of the business enterprise.

    The decision in Ona v. Commissioner of Internal Revenue, 45 SCRA 74 (1972), is illustrative of this principle. In Ona, in the project partition agreed upon by the heirs the agreed to keep the properties

    of the estate together and to divide the profits in proportion to their

    stipulated interests therein. In holding that there was thereupon

    constituted among the co-heirs an unregistered partnership subject

    to corporate income tax under the Tax Code, the Court held

    It is thus incontrovertible that petitioners did not, contrary to their

    contention, merely limited themselves to holding the properties

    inherited by them. Indeed, it is admitted that during the material

    years herein involved, some of the said properties were sold at

    considerable profit and that with said profit, petitioners engaged,

    thru Lorenzo T. Ona, in the purchase and sale of corporate

    securities. It is likewise admitted that all the profits from these

    ventures were divided among petitioners proportionately in

    accordance with their respective shares in the inheritance. . . the

    moment petitioners allowed not only the incomes from their

    respective shares of the inheritance but even the inherited

  • 46

    properties themselves to be used by Lorenzo T. Ona as a common

    fund in undertaking several transactions or in business, with the

    intent ion of deriving profits to be shared by them proportionally,

    such act was t