PREPARED BY: MADAM NORAZLA ABDUL WAHAB

PREPARED BY: MADAM NORAZLA ABDUL WAHAB

PARTNERSHIP

The relevant statue applicable-Partnership Act 1961

DefinitionSection 3(1) Partnership Act 1961Partnership is the relation which subsist

between persons carrying on business in common with a view of profit.

• Partnership must be registered under the Registration Business Act 1956.• However, Failure to register does not mean the partners cannot enforce their

rights for each other.

Gulazam v Noorzaman and Sobath

[1957] 23 MLJ 45Facts:

An agreement between the Plaintiff and Defendants where the Plaintiff would

provide capital for the purchase of cattle and the defendants would look after the cattle and then sell them in order to gain

profits to be distribute equally amongst them.

When the defendants failed to pay the plaintiff an action was brought against

them.

Continue….The Defendant argued that the business had never been registered under any Acts,

hence making it not a partnership at all.

Held:The plaintiff could claim because the

relationship between the individuals had the business character of a partnership within the scope.

ELEMENTS OF PARTNERSHIP

1. More than one personMust have more than one

person.

Partnership means…….two or more can become a partner in a

partnership…..if one person it will be sole proprietorship…..

• Section 47(2) of PA 1961 (Revised 1974), the maximum number of

partners allowed in a partnership is twenty (20).

• But, Section 14(3)(a) Companies Act 1965, a professional partnership can

have unlimited numbers of partners.• i.e: lawyers- legal firms- LPA

Continue…..Tan Teck Hee v Chong Tian Peng

Held:The action against Defendant fail

because the numbers of partners in the firm concerned was 25.

Since the firm was void, any legal action taken could not be allowed.

• Shim Fatt v Leyland Road Bus Co.

The Plaintiff gave advance on money to the defendant, a firm consisted of

more than 20 partners. The Court held:

Plaintiff could not recover the money because a legal action could not be brought against a void firm,

2. Agreement between the partners

“relationship” :an agreement or a contract between the

parties or a contract between the parties to the partnership either expressly or

impliedly.

Although the word partnership does not appear in a agreement, a partnership may still exist if the relationship between the

individuals has the business character of a partnership.

Ratnal Ammal@anor v Tan Chow Soo [1964] 30 MLJ 399

Facts: The parties enter the agreement to form a

‘syndicate” for the purpose of selling condensed milk.

The word “partnership” was not used in the agreement. Instead, the word ‘syndicate was

used.Held:

The relation of the parties had the business character of a partnership and although the word partnership was missing in the agreement,

it was still a partnership.

3. Present transaction of business activities

The parties must be carrying a partnership business at the

“present”. Business refers to any trade,

occupation or profession. (s. 2)Hence, there will be no partnership

if the parties are preparing a business for the future.

4. Each partner is an agent to one another

Partners in a partnership is an agent to one another.

It means that the act of one partner are also reflects of the

act of the other partners, provided the act is in the course

of the business of the partnership.

Continue…. Section 7

Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership….Acts of the other partners binds

the other partner and the firms….

UNLESS; The partner acting without

authority….and the person with whom he

is dealing either knows that he has no authority or does not know or believe him to

be a partner….

5. For the Purpose to Profit

It is essential for the business to be carried on in a common with a view of

profits. Profits mean net profit.

Charitable or religious organization, clubs, societies & co-operative are NOT

PARTNERSHIP. Impliedly that the profit to be shared

equally

Mollwo, March & Co. v The Court of Wards

Held:To constitute a partnership, the

parties must have agreed to carry on business or to

share profits in some way in common.

CARRIED ON COMMON ?

Must carried on or by or on behalf of all partner.

Must be one person or more carry on the business for himself and on behalf of the

others. However, it NOT NECESSARY- all partners

must play an active part in business (sleeping partner).

Circumstances – NOT partnership

S. 4 (a), (b) & (c) of PA 1961

Examples:Joint tenancy, tenancy in

common, joint propertySharing of gross return

Types of Partners General partners

He is a partner in the fullest sense• Active partners

A partner who is actively participates in the management of the business and is

known to the world as the partner Dormant/sleeping partner

No active part in the management but still liable as partner.

Quasi- Partner Not a partner but liable for debts of the partnership as a consequences of holding

out (causing other people to believe that he is a partner).

S. 16- person who has retired from a partnership must ENSURE that no other

representation made by words or conduct of himself or any other partner to the effect

that he is still a partner of the firm.

Salaried partnerA partner who receives a fixed

remuneration irrespective of profits or who received a fixed salary

every months plus a small percentage of the profits.

Formation of Partnership

FormalityCan be formed with or without written

agreement

• CapacityAny one of sound mind can be a

partner.A minor partner cannot be held liable

and responsible for any contracts made

Continue…. Documents

Partnership Agreement Or Articles of partnership which provides for all

rights and duties of a partner

• DurationDepends on the intention of the

partners whether to fix the duration of the partnership or otherwise

S. 28 (1) : no condition as partnership duration: may

dissolve by giving notice.

Section 29(1):if the duration of partnership has expired but

all partners wishes to proceed with the partnership without having to make a new

agreement, the rights and duties of the partners are still the same.

RELATIONS OF PARTNERS TO OUTSIDERS

Power of Partners to Bind Firm Implied Authority Liability of Partners

Liability of Persons for Holding Out

Power of Partners to Bind FirmS. 7

Every partner is an agent of the firms and his partners for business.

Binds the firms & his partnersBut, the partners NOT LIABLE – if the partner act without authority

Implied Authority

A partner should has authority to do acts as what had usually done by

partners in a particular kind of business.

Examples: Sleeping partner-bounds by the contract made by active partners.

Implied Authority Every partner has implied authority to

BIND the firm.Depend on the circumstances, nature of

business & practice of the person engaged .

Examples: A partner sells the firm’s goods & chattels (Dore v Wilkinson (18177))

Purchasing on the firm’s behalf goods (Bond v Gibson (1800) 1 Camp 185)

Implied Authority

However,

The partner will be PERSONALLY LIABLE for his unauthorized act

UNLESS Be ratified

Liability of Partners S.11

Every partner in a firm is LIABLE JOINTLY with the other partners for all debts & obligations of the firm

incurred while he is a partner .

Liability of Partners Example:

Mamat supplied stationeries worth RM 5K to the firm of Didi, Dada & Dudu Trading. However, he has not been paid for that and start to sue

the firm. If there is insufficient common partnership property to satisfy the debt, he

can levy execution against private property of the Didi, Dada & Dudu or anyone of them. If Mamat fails to recover the debt from Dada

( i.e.) he cannot later sue the other partner.

Liability of Partners Tortius acts & wrongs (S. 12 &14)

The partner are JOINTLY & SEVERABLY LIABLE for such wrongs committed by one of the partners in the ordinary course of business of

the firm with the authority of his co-partners.

Liability of Partners

Example:The partner done illegitimate – ALL

partners are LIABLE.Partner that entrusted with the trust property- OTHER PARTIES are NOT LIABLE except the person that personally beneficially interested it.

Liability of Person for “HOLDING OUT”

Example:He is NOT a partner of the firm BUT he by

words spoken or writtenrepresent himself or allow himself to be

represented as a partner in a firm.

LIABLE as partner BUT his liability only to those who have given credit to that firm based on a faith of that representation.


Bevan v The National Bank Limited (1906) 23 TLR 65

B carried on business as MW & Co. and employed MW as a manager of the

business. The court held:

Holding out


HOWEVER, When a partner dies and the partnership business is continued in the old firm name,

the continued use of that name

DOES NOT make his estate LIABLE for any partnership debts after his death.

(S. 16 (2))

INCOMING & RETIRING PARTNERS

Incoming Partners Retiring Partners

INCOMING PARTNER S.19(1)

Person that admitted as a partner into an existing firm will NOT be

LIABLE for anything done BEFORE he became a partner.

RETIRING PARTNER S.19(2)

A partner retires , he REMAIN LIABLE for the partnership debts incurred

BEFORE his retirement. S. 38 (1)

…He IS still LIABLE UNLESS he has given an express NOTICE that HE IS NO LONGER

A PARTNER to the person he is dealing with

PARTNERSHIP PROPERTY It must be used EXCLUSIVELY for the

purpose of the firm. Purchased with partnership money. It must be stated in the agreement

OTHERWISEIt is separate property of partner although it

may be used for or even important to the partnership business.

(see case Ponnukon v Jebaratnam [1980] 1 MLJ 283)

PARTNERSHIP PROPERTY Ponnukon v Jebaratnam [1980] 1

MLJ 283

Court held :The land was not paid with the funds of

the partnership but the fund that raised by the J himself which is

independently of P and the partnership as well.

PARTNERSHIP PROPERTY S. 25 (1)

A creditor who obtained judgment against the firm may SEIZE the partnership property in execution

of the judgment. HOWEVER,

S. 25(2)A creditor who obtained judgment against AN

INDIVIDUAL PARTNER, CANNOT seize all the partnership property but only on the partner’s interest in the partnership property including

profits etc.

RELATION OF PARTNERS TO ONE ANOTHER

Via agreement

Mutual rights & duties of the partners i.e. conduct & management of the

business, the capital to be provided by each partner, the proportion of profits,

rights & duties of the partners.


Via agreement

If No specific provisions- rules in PA will apply.

However, may be varied by the consent of all the partners.


S. 26

All the partners SHARE the capital, profit & loss EQUALLY.

The firm must indemnify every partner in payment made & personal liabilities incurred by him.

Entitled for the interest of 8% per annum for the advanced made.


S. 26

No partner entitled for the interest of the capital before the ascertained of profits.

Every partner may take part in the management of the business.

No partner is entitled to remuneration.


S. 26

No person be introduced as partner without consent of the other partners.

Any differences may be decided by majority but subject to the consent of all existing partners.

The partnership books/account must be kept at the place of business.


Above all

Principle of “UTMOST GOOD FAITH” between the partners is implicit in every partnership

agreement.

(see case Vasu Devan& Ors v V.V.Nair (1985)1 MLJ 137)

Assignment of Partner’s Share

A partner is entitled for the proportion of the assets when the firm’s assets have been sold and after the deduction of the

debt.A partner may assign his share

absolutely or assign the assignee in the case of mortgage or redeemable charge.


However, the assignee is not entitled to interfere in the:

management of the partnership business To require any account of the business

transaction To inspect the partnership book

( S. 33(1))


The assignee only entitled: Receive the share profit to which the

assigning partners entitled toTo accept the account & profit agreed

to by the partners( S. 33(1))

DISSOLUTIONS OF PARTNERSHIP

1. DISSOLUTION WITHOUT COURT’S INTERVENTION

By agreementPartnerships articles may fix the duration of partnership, and the partnership is terminated on the expiry of the period.

The partners may mutually agree to dissolve the partnership at any time.

Continue….• By operation of law

By expirationIf a partnership is entered into a fixed term (section 34(1)(a)) or for a single adventure or undertaking section 34(1)(b), the partnership is dissolved on the expiration of the fixed term or termination of the adventure or undertaking

Continue….NoticeSection 34(1)(c)If the partnership is entered into for an undefined time, any partner may determine the partnership at any time by notice to the other partners.

Continue….

• By death or bankruptcySection 35(1)Subject to any agreement between the partners, every partnership is dissolved as regards all the partners by the death or bankruptcy of any partner

Continue…..• By charging on sharesSection 35(2)when a partner suffers his share of a partnership property to be charged with payment of his personal debt, the other partner has an option of dissolving the partnership.

When a number of partners exceed 20

Continue…..• By supervening illegality Section 36it is unlawful for the business of the partnership to be carried out

DISSOLUTION BY AN ORDER OF THE COURT

By the application of the partner: Insanity of partner

Section 37(a) Permanent incapacity of a partner to

perform his dutiesSection 37(b)

A conduct calculated to prejudicially affect the carrying on of the business

Section 37(c)

Willful and persistent breach of the partnership agreement

Section 37(d)Carrying on business at a loss

Section 37(e)It is just and equitable to do

soSection 37(f)