1 | B U S O R G _ 1 s t E x a m P a r t 3
Learn the rules like a pro, so you can break them like an
artist.- Pablo Picasso
III. Special Issues as to WHO may qualify to
become partners
1. May Spouses Validly Enter into a Partnership
Relation?
A. Spouses cannot enter into a Universal
Partnership
Art. 1782. Persons who are prohibited from giving each
other any donation or advantage cannot enter into
universal partnership. (1677)
Art. 133. Every donation between the spouses during the
marriage shall be void. This prohibition does not apply when
the donation takes effect after the death of the donor.
Neither does this prohibition apply to moderate gifts which
the spouses may give each other on the occasion of any
family rejoicing. (1334a)
(Family Code)Art. 87. Every donation or grant of gratuitous
advantage, direct or indirect, between the spouses during
the marriage shall be void, except moderate gifts which
the spouses may give each other on the occasion of any
family rejoicing. The prohibition shall also apply to
persons living together as husband and wife without a
valid marriage. (133a)
Rationale under prohibition under 1782: is founded
on the theory that a contract of universal
partnership is for all purposes a donation. Its
purpose therefore is to prevent persons disqualified
from making donations to each other from indirectly
what the law prohibits them from doing directly.
CIR vs Suter
Since the prohibition for spouses covers expressly
only universal partnerships, they can validly be
partners in a limited partnership, with the husband
being the general partner and the wife being the
limited partner.
B. Spouses are not qualified to enter into
other forms of partnership for gain
Reasons:
1. Apart from a universal partnership, every form of
partnership, including limited partnership,
effectively makes partners donors to one another
of their contributions in the partnership.
2. There is clear implication under the Family Code,
that the property regime must govern spouses must
be in accordance with the provisions of said Code,
and cannot be the subject of regular partnership
rules under Partnership Law.
C. Professional Partnerships
Art. 1783. A particular partnership has for its object
determinate things, their use or fruits, or specific
undertaking, or the exercise of a profession or vocation.
(1678)
Q: May spouses by themselves, or together
with other professionals, enter validly into a
contract of professional partnership?
A: Yes. The reason is that a professional
partnership essentially covering the contribution of
service by the spouses, does not primarily bind
actual community or conjugal properties, and
therefore does not operate in violation of the
property rules governing marriage property
regimes.
D. May Corporations become Partners?
Tuason v Bolanos
The court held in this case that, corporation has no
power to enter into a partnership, but a corporation
may validly enter into a joint venture agreement,
where the nature of that venture is in line with the
business authorized by its charter.
Torres vs CA
The court held unequivocally that a joint venture
agreement for the development and sale of a
subdivision project would constitute a partnership
pursuant to the elements thereof under Article 1767
that defines when a partnership exists.
SEC RULES:
GR: Corporation cannot enter into a contract of
partnership with an individual or another
corporation on the premise that it would be bound
by the acts of the persons who are not its duly
appointed and authorized agents and officers,
which is inconsistent with the policy of the law that
the corporation shall manage its own affairs
separately and exclusively.
Exceptions:
a. The authority to enter into a partnership relation
is expressly conferred by the charter or the articles
of incorporation of the corporation, and the nature
of the business venture to be undertaken by the
partnership is in line with the business authorized
by the charter or articles of incorporation or
corporation involves.(SEC Opinion, 1980)
b.The agreement on the articles of partnership
must provide that all the partners shall manage the
partnership, and the articles of partnership must
stipulate that all the partners shall be jointly and
severally liable for all the obligations of the
partnership.(SEC Opinion, 1994)
