SECTION VII. PARTNERSHIP DEEDS AND REGISTRATION OF PARTNERSHIPS. BRITISH LAW. Partnership is regulated principally by the express contract or articles of partnership, but where the contract does not reach all the duties and obligations arising from that relation, then they are implied and enforced by law (a). Partnerships regulated by deed as far as it provides. Need not be in writing. What neces sary to prove breach of It is not requisite that the contract of partnership be drawn out in writing; it may be established by verbal agreement or inferred from the acts of the parties (b). But an action, could not be sustained for breach of an agreement to become in a suit for a a partner without proof of the specific terms of the intended agreement to partnership (c). The existence of a partnership may be established also by the fact that the parties have shared profits and losses, that the party held himself out as a partner, and by any admission or advertisement tending to prove the existence of a partnership agreement (d). become partners. May be estafacts. blished by Partnership articles should state the nature of the business, Provisions of partnership the commencement and duration of the partnership, the style of deeds. the firm, the capital and property of the firm, the amount to be contributed by each partner, the allowances to be made to, and the amount allowed to be drawn out by each partner, with provisions for the retirement of partners and the admission of new partners, the settlement of disputes by arbitration, dissolution of partnership, &c. Bonds executed by partners, relating to their rights as part- Bonds excners, bearing the same date as the partnership deed, are read in a court as part of the partnership contract (e). (a) Crawshay v. Collins, 15 Ves. 218. (b) Peacock v. Peacock, 16 Ves. 49; Alderson v. Clay, 1 Stark. 405; Studdy v. Sanders, 2 D. & Ry. 307. (c) Figes v. Cutler, 3 Stark. 139. (d) With regard to third persons, partnership is a fact of the existence of which they have rarely the means to obtain written proof. When they allege that a partnership has existed between certain parties in order to deduce their rights against them, they may be allowed to prove the existence of such partnership even by oral evidence, (e) Morison v. Moat, 9 Hare, 260, cuted at the same time. Articles cannot be altered The articles which are agreed on, to regulate the partnership, except by con- cannot be altered without the consent of all the partners. sent of all. Clauses deli The Court of Equity will decree the specific performance of berately disre- any clause of the partnership deed where there has been a garded. studied and deliberate disregard of the same (a). But when any of the clauses of the partnership articles have not been acted upon by the parties, they will be held as not binding by a Court of Equity (b). Clauses not acted upon not binding. Partnerships must be by deed. What must be published. FOREIGN LAWS. France.-A partnership in collective name, or en commandite must be drawn up either by public deed, prepared and signed by notaries, or by an act under private signature, signed by all the partners, and written out in as many copies as there are partners. No oral evidence can be admitted against and besides the contents of the partnership deed written at the same time of the deed, or afterwards, even if it be a question below one hundred and fifty francs. The partnership deed must be made public by the publication of an abstract of it, signed by the notary, and by all the partners when the partnership is in collective name, and by the responsible partners only if the partnership is en commandite, or divided by shares. This extract must contain the names, surnames, condition and residence of the partners, the firm of the partnership, the designation of the partners, the authority to manage the business and to sign on behalf of the firm where such has been delegated to some of them only, the amount of capital invested, or to be supplied by shares en commandite, the time the partnership will continue, and the circumstances which cause its dissolution. It is not necessary to publish the proportion in which the profits and losses are to be divided, nor any of the clauses which do not interest third parties (c). The extract of the deed must, within a fortnight of its date, be sent to the Tribunal of Commerce of the district where the house is established, to be enrolled in the register, and posted up for three months in the hall. If the partnership has several houses of trade, situated in different districts, the extract must be sent, and must be enrolled and (a) Marshall v. Colman, 2 Jac. & Walk. 266. (b) Ex parte Harris, 1 Rose, 437; Jackson v. Sedgwick, 1 Swanst. 460; Const v. Harris, T. & R. 523. (c) French Code of Commerce, §§ 42 —44. posted up, in the tribunal of each. This extract must be inserted in one of the journals designated by the tribunal. every year, from among those published in the chief place of the district, or in default which appear in the department. Moreover, a copy of the journal containing this insertion must be certified by the printer, legalised by the mayor, and registered within three months of its date. The same conditions are required for all the changes made in the deed of partnership, and for all the new clauses agreed upon after the publication of the original deed. If these formalities are not observed, the deed has no value as regards the parties themselves, though the partners cannot make use of such defect as against third parties. United States.—All persons doing business in a partnership Registration of partnerships. capacity must file or cause to be filed in the office of the prothonotary in the county or counties where the said partnership is carried on, the names and location of the members of such partnership, with the style and name of the same; and as often as any change of members in said partnership takes place, the same must be certified by the members of such new partnership, and in default or neglect of such partnership so to do, they are not permitted in any suits or actions against them in any court to plead any misnomer or the omission of the name of any member of the partnership or the inclusion of the names of persons not members of the said partnership (a). Germany. The partners must give notice of the formation of Registration of partnerships. the partnership by entering in the register of trade the name, surname, profession, and residence of all the partners, the name of the firm and of the place where it is to be established, the date when the partnership will commence, and if there be an agreement that one or several of the partners only are to represent the firm, the names of such persons must be registered. When the firm of an existing partnership is altered or the same is removed to another place, or when new partners enter the same, or when a partner receives the right to represent the partnership, or when this right is taken away from him, notice of all these facts must be given to the tribunal of commerce that they may be entered in the register of trade. When such facts are not duly registered they cannot be proved against (a) Act of 14th April, 1851. these parties. The notices must be signed by all the partners in the presence of the tribunal of commerce, or they must be sent in in an authenticated form. Italy. The same law prevails as in France. The extract of the deed must be inserted in the gazette of the province where the partnership is founded, and if there be no gazette in the province, it must be inserted in the gazette of Turin; the insertion must take place within one month from the time it has been sent to the tribunal of commerce. If the extract has not been sent, or has not been inserted in the gazette within the time fixed, each partner has power, so long as these formalities have not been complied with, to withdraw from the partnership by giving notice to his co-partner, by an act deposited in the tribunal. In such a case the partnership is dissolved. But the non-observance of these formalities cannot be set against the rights of third persons against partners (a). Netherlands. The partnership deed must be inscribed in a special register, at the tribunal of the district, or at the court of the department. An extract is sufficient, provided it be drawn up in an authentic form, and signed by all the partners. The register is public, and every one may take extracts from it. The extract must contain all the conditions which may interest third parties. The partners are bound, besides, to cause an extract to be published, both in the official journal and in one of the journals of the place where the partnership is established, or in a journal of a neighbouring place. Before the enrolment and publication of the deed, the partnership is considered, as regards third persons, as a general partnership, contracted for an unlimited time, and excluding none of the partners from the right of management and agency for the firm. If the published conditions differ from the written convention, the first only have force. The dissolution of a partnership before the time agreed by contract for its continuance, as well as all the changes made upon the first agreement, which might interest third parties, must be registered in the same manner, and in default of those formalities no advantage could be taken of such changes as against third parties. If the renewal of a partnership in collective name is not enrolled and registered, the partnership is (a) Sardinian Code, §§ 51-57. considered to be constituted as a general partnership for an unlimited duration, the same as when a partnership newly. constituted has not complied with the required formalities. must be re Portugal.—A partnership in collective name, or of capital Partnership and labour, must be formed by deed. But though the obliga- gistered. tion to make the contract in writing is binding between the parties, the existence of the partnership towards third persons may be established by any other evidence. Every partnership deed should be published in full in the register of commerce. The law on registration of partnerships is the same as in Spain. Every person may ask to inspect the register. So long as the partnership deed has not been enrolled in the public register of commerce, the partnership is deemed, as regards third persons, as a general partnership, constituted for an unlimited time, and in which none of the partners is excluded from the management (a). Russia. A partnership is not deemed established until a notice of its formation is given to the guild of merchants, and a copy of the deed is transmitted to the public authority. Notice of every partnership formed must also be given to the minister of finance. Every partnership that has not complied with these formalities for inscription and publication is deemed in a state of dissolution. Public notice of partnership vious to its ment. necessary pre commence must be by Spain. Every partnership deed must be drawn up in an Partnership authentic form. The agreement made under private signature deed. is only valid as against the parties who have engaged to unite in the execution of the deed, which must be made before the partnership commences its operations. In case of contravention, neither the partnership nor any of the partners can institute any suit relative to their property. For this purpose the partnership must, on the request of the defendant, be prepared to prove the execution of the deed. The partnership. which has not fulfilled this formality is moreover liable to be fined. The deed must state the name, surname, and domicile of the interested parties; the firm, the names of the partners certified to manage for the firm, the capital each partner brings in cash, credit, or bills, showing their value, or the basis upon which they are valued; the portion of profit and loss due (a) Portuguese Code, § 601. |