Slide Set Five: Introduction to Business Organizations Sole Proprietorships and Partnerships 1.

Slide Set Five:Introduction to Business Organizations

Sole Proprietorships and Partnerships

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Last Time We Spoke About:• The History and Development of Business Law

- It All Started With Trade and MarketsBusiness like Law developed to address human needs

- The Rise of the CorporationRoman LawEnglish LawColonial AmericaEarly New York StateDelegation / General Incorporation StatutesFederal Regulation

• Vehicles of Business Organization- Individual (Sole) Proprietorships- Partnerships- Corporations Business Corps, Professional Corps, Public Benefit Corps, - Limited Liability Companies- Organizations

Joint Ventures, Unincorporated Associations, Co-operatives, Franchises2

Tonight We Will Speak About:• Sole Proprietorships

• DBA’s – “Doing Business As”

• Partnerships- 1. Nature of Partnerships- 2. Formation of Partnerships- 3. Property of a Partnership - 4. Relations Between Partners- 5. Relations Between Partners and Third Parties- 6. Limited Partnerships- 7. Dissolution or Termination of Partnerships

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TYPES OF BUSINESS ORGANIZATIONSSo You Want to Start a Business

What type of BusinessOrganization do youchoose?

Tonight we will discusstwo possibilities:

Sole Proprietorships and

Partnerships

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TYPES OF BUSINESS ORGANIZATIONSSole Proprietorships

A. What is a Sole Proprietorship?• A sole proprietorship is a business established, owned, and

controlled by a single person.• Sole proprietorships come in all shapes and sizes.• The owner realizes all the profits and assumes responsibility for all

losses.• The sole proprietorship is the most prominent of the four forms of

ownership.

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B. Formation of a Sole Proprietorship• Of the four forms of ownership, the sole proprietorship is by far the easiest

to form.

• The government exercises very little control over the establishment of new sole proprietorships.

• Start-up can be immediate and simple.

• You may need to obtain licenses or permits for your particular type of business. (DBA’s)

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C. A DBA Certificate• A “Doing Business As” (DBA) is a

certificate filed with a local government (the office of the County Clerk in New York State) that designates that a sole proprietorship is being operated within that community under a specific name.

• The local government will require the business owner file a form to provide their name, type of business operated,and address on the DBA application.

• A DBA certificate is filed in every county where the business operates

• There is often a small filing fee for a DBA (in Saratoga County for instanceit is $25 with a $5 certified copy fee).

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D. Operation of a Sole Proprietorship• Sole proprietors make all the decisions regarding the operation of the

business.

• The assets of sole proprietors are not considered legally separate from the assets of the business.

• Owners of sole proprietorships report business income and expenses on their personal income tax returns.

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E. Advantages of a Sole Proprietorship• Sole proprietorships are simple to start. • No formal action is required.• A sole proprietorship may be started immediately.• The owner has total control of all aspects of the business.• The business is nimble and easily adaptable to changes• The owner receives all the profits.• The business itself pays no income tax; the owner pays income tax as an

individual on his or her individual return.

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F. Disadvantages of a Sole Proprietorship• No Liability Protection. • The owner is solely liable for all financial losses (and damages).• The owner has total control of all aspects of the business (including

management).• The owner is solely responsible for all capital expenses.• The business itself pays no income tax; the owner pays income tax as an

individual on his or her individual return.

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TYPES OF BUSINESS ORGANIZATIONSPartnerships

A. What is the Nature of a Partnership?1. Partnership Defined:• The New York State Partnership Law (New York’s version of the Uniform

Partnership Act) defines a partnership as: “An association of two or more persons to carry on as co-owners of a business for profit, and includes a registered limited liability partnership.” [See §10 (1)]

• The law of partnership is based on the law of contracts and agency.

2. Elements of a Partnership:• A partnership is thereby:

a relationship; created by the voluntary association of two or more persons; to carry on as co-owners a business for profit.

• A Partnership consists of: Voluntary Relationships and Capital or in-kind contributions.

• If no profit intended, then an unincorporated association is formed.11


A. What is the Nature of a Partnership?3. Characteristics of A Partnership:

• The existence of a partnership may be found from the existence of: Shared control in the running of the business and The fact that the parties share profits and losses.

• The sharing of gross returns, as opposed to profits, is very slight evidence of a partnership.

4. Joint Venture Distinguished:• Courts can distinguish a joint venture (i.e. a single or limited enterprise or

venture) from a partnership. • When the joint venture involves two or more persons to carry on as

co-owners of a business for profit, however, regardless of however briefly, the the legal consequences of the joint venture are identical to those of a partnership. [See Pedersen v. Manitowoc Co., 25 N.Y.2d 412 (1969)].

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A. What is the Nature of a Partnership Continued?5. A Partnership is Not a Legal Entity:

• A partnership, unlike a corporation, is not deemed to be a separate legal person under the law, in that it lacks the entity characteristics of a corporation.

Liability and Debts: The liability and debts of the partnership are the liability and debts of the individual partners, and any one partner may be held liable for the partnership's entire indebtedness.

Exceptions:• In some distinct cases, the partnership. at least in form, is treated as a

legal entity for the following purposes. These include: Title to Land

Title to land may be taken in the partnership name. [NYSPL §12 (3)] Lawsuits

● A partnership may sue or be sued in the partnership name. [CPLR § 1025]. ● Service an any one partner is service on the partnership. [CPLR 310(a)]

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B. Formations of Partnerships:1. Applicability of Contract Rules:

• Because a partnership is the result of an agreement, it is necessarily governed by the general rules applicable to contracts.

Capacity: ● Who May Be A Partner?

The basic rule is the same as that governing a principal in an agency relationship. Anyone may be a partner who is capable (i.e. has capacity) of entering into a binding contract.

● Liability Where No CapacityThe basic rule is the same as that governing a principal in an agency

- Extent of Liability: The general rule is where a would be partner lacks capacity, they are not

personally liable for the obligations of the partnership or for breaches of the partnership agreement. They would be bound, despite their lack of capacity, to the extent they made capital contributions to the partnership.

- Example:Arnold is 17 and Bertha is age 21 and they agree to form a partnership to sell and deliver pies.

Each contributes $1000 to the partnership from their piggy bank. The partnership incurs debts of $2000 for baking materials. The $1000 contributed by Arnold is subject to a claim from partnership creditors.

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B. Formations of Partnerships:1. Applicability of Contract Rules Continued:

Formalities● The Partnership Agreement:

A partnership is born of contract and thus requires an agreement. The partnership agreement governs the terms of the partnership during its existence (and may include terms of profit and loss distribution and capital contributions as well as provisions relating to dissolution).

● General Rule – No Formalities:Although a partnership is based upon a contract, the law does not require any particular, essential formalities to constitute a valid contract of partnership.As a result, in the absence of statute, the partnership agreement may be either express or implied (i.e. established solely from the conduct of the parties). Additionally, although it often is in written format, it is not normally required for the partnership agreement to be in writing.

● When Writing is Necessary:- Statute of Frauds: Partnership agreements that cannot be performed within one year must be in writing in order to comply with the statute of frauds [NYUCC § 2-201]. If the parties act upon an oral agreement, that must be in writing to satisfy the statute of frauds they will be treated as “partners at will”15


B. Formations of Partnerships:1. Applicability of Contract Rules Continued:

Legality of Purpose● The Purpose of the Partnership Must be Lawful:The purpose for which the partnership is formed or is to be formed must be legal.The illegality of the enterprise will make the partnership null and void.

When a partnership has been formed for an illegal purpose, the court will not compel an accounting or a settlement of the partnership affairs. - Example:

Aaron and Brent formed a partnership for the purpose of making and selling fake Identifications. This is obviously an illegal enterprise, contrary to law. The money secured by the operation of the partnership was deposited in Aaron's name. In an action by Brent to secure an accounting of the partnership funds held by Aaron, the court refused to grant the accounting on the ground of illegality of the partnership.

Consent ● Consent of the Parties

Unless the agreement provides otherwise, no one can become a partner in a partnership without the express or implied consent of all the partners. [NYSPL. §40 (7); see also People v. Herbert, 162 Misc. 817 (1937)]. 16


B. Formations of Partnerships: 2. Proof of Partnership Existence:

1.

Rules for Determining Existence:

● Intent of the Parties:Generally, the courts look to the intent of the parties to determine the existence of a partnership. There is, of course, no difficulty where the parties have an express

contract. But where the intention is unexpressed, a problem may arise.

● Tests for Determining Intent:The courts and the Uniform Partnership Act [NYSPL §11] have provided certain

tests to be applied to the acts of the parties in making a determination whether a partnership exists. Pursuant to these test, the following should be considered:

Title to Property Designation of Entity by Parties Amount of Activity Involved Sharing of Gross Returns Sharing of Profits

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1.

Rules for Determining Existence Continued:● Tests for Determining Intent Continued: - Title to PropertyJoint or common tenancies of any type do not establish, by themselves, the existence of a

partnership even if such co-owners share profits from the use of the property. [NYSPL § 11(2)] - Designation of Entity by PartiesThe designation by the parties of their entity as a "partnership" or some other business entity form is important as indicative of intent, but is not conclusive. - Amount of Activity InvolvedThe amount of activity involved in the enterprise undertaken by the parties will be considered a relevant factor in determining whether a partnership exists. Examples:

1) Anne and Bill each contribute $5,000 and purchase Blackacre. Thereafter, they hold the property for investment, hoping it will appreciate. Anne lives on the farm and pays more of the mortgage than Bill.

2) Anne and Bill each contribute $5,000 and purchase Blackacre. Thereafter, they develop the land by building apartments and proceed to manage the development, sharing equally in the rents and expenses.

In the second example, due to the degree of activity, the court is much more likely to find a partnership thanthe first example.

- Sharing of Gross ReturnsThe sharing of gross returns does not by itself establish a partnership, regardless of whether

the persons sharing them have a joint or common interest in any property from which the returns are derived.

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1.

Rules for Determining Existence Continued:● Tests for Determining Intent Continued: - Sharing of Profits

✭ General Rule-Prima Facie Evidence of Partnership The receipt by a person of a share of the profits of a business is prima facie evidence that they are a partner in the business. [NYSPL §11(4)] ✭ Exceptions to Inference of Partnership Pursuant to section 11(4) of the New York State Partnership Law, no such inference of partnership will be drawn if such profits were received in payment as:

➔ A debt, by installment or otherwise; ➔ Wages of an employee; ➔ Rent to a landlord; ➔ Annuities to a surviving spouse or representative of a deceased partner; ➔ Interest on a loan even if the amount varies with the profits of the business; or ➔ Consideration for the sale of goodwill of a business, by installment or otherwise.

Example: Andrew owns a piece of land. Brandon desires to rent it and to build and operate a hotel thereon. Andrew leases the land to Brandon, who agrees to pay Andrew 10% of the net profits earned from the operation of the hotel. Carrie, who delivers goods to Brandon for the hotel, seeks to hold Andrew liable for the goods as Brandon's partner when Brandon fails to pay for the goods. Carrie cannot recover from Andrew. Absent a partnership agreement, the 10% payments are deemed rent pursuant to NYSPL. §11(4)(b). 19



1.

Rules for Determining Existence Continued:

● Tests for Determining Intent Continued:

- Sub-partnership

A sub-partner who shares with a partner of a principal partnership profits derived from thatpartnership is not thereby deemed a partner of the principal partnership.

Example: Amy and Bertha enter into a written partnership agreement that provides that they will share profits of the business equally. Bertha then enters into an agreement with Christopher that provides that Bertha and Christopher will share the profits received by Bertha from the Amy/Bertha partnership. In this example, Christopher is not a partner in the Amy/Bertha partnership even though he will, in effect, be receiving a share of the Amy/Bertha profits. At most, he is a member of the Bertha/Christopher partnership.

- Sharing of Losses

While there is no statutory requirement that sharing losses is necessary to create a partnership,

the absence of an agreement to share losses is strong evidence that the parties did not intend to form a partnership. [See Mill Factors' Corp. v. Margolies, 210 A.D. 739 (1924)].

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B. Formations of Partnerships: 3. Partnership by Estoppel:

1.

In certain situations, even where there is no agreement, and the parties between themselves are not partners, the law may nevertheless hold such parties liable to third parties as if they were partners. There are two basic partnership by estoppel situations, as follows:

Liability of Person Held Our as Partner:When a person, by words or conduct, represents themself or permits another to

represent them as a partner, they will be liable to third parties who extend credit to the actual or apparent partnership on the faith (i.e. upon the reliance of) the representation. [NYSPL §27 (1)]

Example: Alan, Bart, and Caroline are partners. They agree to terminate their partnership, but

continue to share office space, telephone numbers, secretarial staff, stationery, etc., and give no public indication of the partnership's termination. Alan holds Bart and Caroline out as partners, despite their agreement to the contrary. Bart and Caroline may be held liable as partners by estoppel. [Royal Bank & Trust Co. v. Weinuaub, Gold, & Alper, 68 N.Y.2d 124 (1986)] 21


B. Formations of Partnerships: 3. Partnership by Estoppel:

Liability of Person Who Holds Another Out as Partner:

When a person, by words or conduct, holds another person out to be their partner, they thereby make such alleged partner their agent with the power to bind them tothird parties as if the other were, in fact, a partner. [NYSPL.§27(2)]

It should be noted, however, that if the person making such representation is in facta member of an already existing partnership, and the representation is to the effectthat the would-be partner is a member of this partnership, only those partners whomade or consented to the representation will be bound.

Example: Amanda, Barry, and Carrie are partners in a textile manufacturing concern. To obtain financing

for herself, Darla, with the knowledge of Barry and Carrie, represents herself to be a member of the ABC partnership. In fact, Darla is not a partner. On the strength of this representation, Sally lends money to Darla, believing it to be for the ABC partnership. Upon a later default, Sally may hold Barry, Carrie, and Darla liable. Neither Amanda nor the ABC partnership is liable.

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C. Property of a Partnership: 1. In General:

The Nature of Partnership Property:In addition to testing whether a partnership exists, partnership questions often focus on the rights and liabilities as between partners and third parties - both in the

ongoing conduct of the partnership and in any eventual dissolution. In analyzing such issues, it is important to distinguish which property belongs to the partnership and which belongs to the individual partners. Partnership property is a seriously major issue.

General Issues of Partnership Property:● Partners hold title to firm property by tenancy in partnership. ● Surviving partners receive property.● A creditor of a partner cannot proceed against any specific item of partnership property but must obtain a charging order to seize the debtor-partner’s share of the profits. ● An assignee of a partner’s interest does not become a partner without the consent of the other partners and is entitled only to a share of the profits and the assignor’s interest upon dissolution. 23


C. Property of a Partnership: 2. Classifications of Property:

Partnership Capital:

Partnership capital consists of the property or money contributed by each of thepartners for the purpose of carrying on the partnership's business.

Partnership Property:

Partnership property, in its broadest sense, embraces everything that thepartnership owns, consisting of both the capital contributed by its members and the properties subsequently acquired in partnership transactions.

Example: Adam and Bernie form a partnership, each contributing $500. During the first year of operation, the partnership earns a profit of $20,000. Adam and Bernie each take a $7,500 draw. Partnership capital is still $1,000. Partnership property is now $6,000.

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C. Property of a Partnership: 3. What is Includable in Partnership Property:

Generally:Absent an agreement, there is no restriction as to what may be included in partnershipproperty. The controlling factor in determining what comprises partnership property is the partner's intent to devote the property to partnership purposes. The following criteria are usually applied in making this determination, but no single criterion is determinative:

● Acquisition with Partnership Funds: Unless a contrary intention appears, property acquired with partnership funds is partnership property.

● Use of Property: The use of the property by the partnership in conducting its business is evidence that the partnership intended it to be partnership property.

● Improvement of Property by Partnership: If the property that was acquired has been improved by the partnership, it is more likely than not to be partnership property.

● Relation of Property to Business: If the acquired property is closely related in character to the business operations of the partnership, it is likely the property was meant to be partnership property.● Title to Property: If the property has been acquired in the partnership name, it is partnership property.● Entry in Partnership Books: If the property has been listed as an asset on the partnership books, particularly where all the partners are aware of this fact, it is likely the property will be considered partnership property.● Maintenance and Expenses: If the partnership has paid the taxes, insurance, maintenance costs, and other expenses associated with the property, this is evidence that the property is

partnership property.25


C. Property of a Partnership: 4. Partner’s Rights in Partnership Property:

Tenancy in Partnership:A partner's ownership interest in any specific item of partnership property is not that of an outright owner, joint tenant, or tenant in common, but rather is that of a tenant in partnership. The incidents of this tenancy are:● Possession: Each partner has an equal right with copartners to possess partnership property for

partnership purposes, but has no right to possess it for any other purpose without the consent of his copartners [NYSPL §51 (2)(a)].

● Assignability: A partner's right in specific partnership property is not assignable to nonpartners except in connection with the assignment of the rights of all the partners in the property. If, therefore, a partner attempts to assign his interest in' specific partnership property to someone who is not already a partner, the attempted assignment will convey no right, title, or interest in the specific property [NYSPL §51 (2)(b)].

● Mortgage: An attempted mortgage of a partner's interest in specific partnership property has no effect upon the passing of title to the property., and as such, the mortgagee will have no rights against the property.

● Death: Upon the death of a partner, his right in specific partnership property vests in the surviving partner(s). Upon the death of the last surviving partner, the rights in such property vests in their legal representative [NYSPL §51 (2)(d)].● Attachment of Specific Property: A partner's interest in specific partnership property is not

subject to attachment or execution at the insistence of her individual creditors, and is subject to attachment or execution only on a claim against the partnership [NYSPL §51 (2)(c)].

● Homestead: None of the partners may assert any claim to specific partnership property under the homestead or exemption laws [NYSPL §51 (2)(c)].● Allowance to Heirs or Next of Kin: Surviving spouses, heirs, and next of kin are not entitled to

share in specific partnership property absent an agreement to the contrary [NYSPL §51 (2)(e)]. 26


C. Property of a Partnership: 5. Partner’s Interest in the Partnership:

● Interest In Personal Property: Each partner has an interest in the partnership itself, which consists of a share of the profits and surplus and is treated as personal property.

[NYSPL §52] ✭ Presumption of Equal Profits and Losses: A legal presumption exists that interests of partners

in profits and surplus are equal, in the absence of evidence of an agreement to the contrary.● Assignment of Interest: A partner's interest in the partnership is personalty and consists only of their share of the profits and surplus, it may thus be assigned by a partner at any time. ✭ Assignment of Profits is not an Assignment of Interest: The right to assign profits and surplus

should not be confused with the limitation on the right to assign an interest in partnership property. ✭ Method of Assignment: The usual transfer rules for personal property are applicable, including the requirements of delivery and acceptance. [See Adamson v. Adamson, 249 A.D. 418 (1937)]. ✭ Assignee's Rights: - In Partnership:

As against the other partners, in the absence of an agreement, an assignment of a partner's partnership interest does not entitle the assignee to interfere in the management or

administration of the partnership business, to require any information or account of the partnership transactions or to inspect the partnership books. Rather, an assignment merely entitles the assignee to receive, in accordance with his assignment contract, profits to which the assigning partner would otherwise be entitled [NYSPL §53(1)]. - At Dissolution

In the case of dissolution, the assignee is entitled to receive the assignor's interest and may require an accounting from the date of the last accounting agreed by all the partners [NYSPL §53(2)]● Charge of Interest (Attachment): A judgment creditor of a partner, on application to the

court that entered the judgment or other competent court, may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with

interest thereon. In addition, the court may then or later appoint a receiver of the debtor partner's share of the profits, and of any other money due or to become due to him in respect of the partnership [NYSPL §54(1)].

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D. Relations Between Partners: 1. Generally:

Fiduciary duty:Each partner owes a fiduciary duty to the partnership. As such, each partner is bound to use the partnership property and exercise their partnership powers for the benefit of the partnership and not for themself alone. Profits made in the course of the partnership

belong to the partnership, and one partner will not be permitted to gain for themself at the expense of the partnership [NYSPL §43(1)].

Right to Participate in Management:Absent an agreement to the contrary, all partners have equal rights in the management of the partnership business [NYSPL §40(5)].

Right to Distributions:Absent an agreement to the contrary, each partner shares equally in the profits and

surplus remaining after all liabilities, including those to partners, are satisfied. Each partner must contribute to the losses, whether capital or otherwise, sustained by the partnership according to her share in the profits. Furthermore, unless the partners agree otherwise, each partner is to be repaid their contribution, whether by way of capital or advances to the partnership property. Any payment or advance made by a partner to or on behalf of the partnership beyond her agreed-upon contribution constitutes a loan to the partnership which must be repaid with interest [NYSPL §40(1)and (3)].

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D. Relations Between Partners: 1. Generally Continued:

Remuneration: ● General Rule - No Remuneration Except for Extraordinary Services: A partner is not entitled to any remuneration for services rendered to the partnership unless the

partnership agreement provides to the contrary [NYSPL §40(6), and see also Levy v. Leavitt, 257 N.Y. 461 (1931)].

✭ Work Ethic: This is true even in cases where one partner is forced to assume more work than they had anticipated and the other partner does nothing to further the affairs of the partnership. ✭ Unequal Interest: However, where partners do not have an equal interest, are not equally liable, and are not equally responsible for the conduct of the partnership business, it is possible to infer an agreement to compensate a partner for extraordinary services. [See Steinberg v. Goodman, 27 N.Y.2d 304 (1970)].● Exception - Winding Up by Surviving Partner: A surviving partner is entitled to

reasonable compensation for his services in winding up the partnership affairs [NYSPL §40(6)].

● Breach of Agreement to Work for Partnership: Unless the circumstances indicate otherwise, it is implied that each partner will devote their entire time and energies to the business of the partnership. ✭ Promise to Devote Time: Where a partner has impliedly or expressly promised to devote time to the partnership business and fails to do so, they may be charged in an accounting for damages caused to the partnership. ✭ Replacement Services Time: The amount expended by the partnership to replace the services that a partner should have performed as well as any other loss caused by his breach of contract is compensable under such an action. . 29


D. Relations Between Partners: 1. Generally Continued:

Indemnification:The partnership must indemnify every partner in respect of payments made and personal liabilities reasonably incurred by him in the ordinary and proper conduct of its business, or for the preservation of its business or property [NYSPL §40(2)].

Contribution:Where one partner is compelled to pay or satisfy the whole or more than their share

of a partnership debt, they may require (usually in an action in equity) the other partners to contribute their pro rata shares [NYSPL §40(1)].

Books and Information:The partnership books must be kept, subject to an agreement to the contrary, at the

partnership's principal place of business and every partner has the right to inspect and copy them [NYSPL §41]. Moreover, each partner, upon demand of another partner (or their legal representative) must "render true and full information of all things affecting the partnership" [NYSPL §42].

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D. Relations Between Partners: 2. Legal Actions Between Partners:

General Rule – No Action at Law:As a general rule, a partner cannot sue or be sued by the partnership (in an action at law), nor may one partner sue another partner on matters related to the partnership business. - Example:

Abby is a member of the partnership of A, B, and C. Abby maintains a separate business of her own. Abby sells certain goods to the partnership. Abby cannot maintain an action to recover for the goods sold and delivered because, in effect, she would be suing herself as a party defendant.● Rationale: ✭ Plaintiff on Both Sides of Suit: Because a partner is personally liable for all debts and obligations of the partnership, they will in effect be partially suing themself if they sue the partnership. ✭ Accounting Is Necessary: There is a general policy against having piecemeal litigation. Yet this will usually be the result unless a complete accounting and settlement of partnership affairs is had. Accordingly, an accounting is necessary because:

◆ Partnership Assets Applied:Claims by one partner arising out of partnership business must first be satisfied out of

partnership assets. Thus, it is possible that even though the plaintiff partner's claim is valid, that they will (because of other transactions) actually owe money to the partnership.

◆ Creditors' Priority:The result of litigation between partners is not binding on third-party creditors. Hence,

without an accounting, the losing partner might have double liability (i.e., liability to the prevailing partner and then liability to an unpaid outside creditor who decides to seek relief against the losing partner).

● Exception: One partner may sue the other at law when no complex accounting is required or when a single, fully closed but unadjusted transaction is involved. [See Schuler v. Birnbaum, 62 A.D.2d 461 (1978)].

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D. Relations Between Partners: 2. Legal Actions Between Partners Continued:

Actions for an Accounting:● What is An Accounting? An accounting is an equitable proceeding that considers all transactions between partners in connection with the partnership. It is usually held in connection with a final settlement of the partnership affairs. The liabilities between each partner and the partnership are thereby converted into liabilities between the partners individually, and an action lies to recover the balance due any partner.

Example:Amanda and Becky were partners. A final accounting was held upon partnership dissolution inwhich it was found that Amanda owed Becky the sum of $500. Amanda is liable to Becky $500.

● When Can an Accounting Be Held Outside of Dissolution?There are a few situations in which an accounting may be had other than in connection

with a final settlement and dissolution. ✭ Wrongful Exclusion: A partner is entitled to an accounting if he has been wrongfully

excluded from participation in the partnership business or from joint possession of the partnership property [NYSPL §44(1)].

✭ Agreement: An accounting can always be obtained in accordance with the partnership agreement [NYSPL §44(2)].

✭ Secret Profits: Where one partner has improperly obtained secret profits in violation of their fiduciary duty to the partnership, an action for an accounting may be maintained against them [NYSPL §44(3) and §43(1)].

✭ Other Circumstances: An accounting may be had whenever the court feels it is "just and reasonable”. [NYSPL §44(4)]. 32


D. Relations Between Partners: 2. Legal Actions Between Partners Continued:

Separate Actions at Law:● Specific Separate Actions at Law:There are a few situations in which an action at law may be maintained separate and apart from an accounting.

✭ Segregated Transactions: Where the partnership has dealt with one partner as if he were a third person and it is

clear that the transaction is not to be reflected in the general partnership account, anaction may be maintained.

Example: Abraham, Bertha, and Carl form a partnership, ABC Bank. Abraham opens a savings

account at ABC Bank and deposits money therein. Abraham is entitled to all of the rights of an ordinary depositor. ✭ Tort Claims:

◆ Negligent Partner: Where one partner negligently injures the person or property of another, the injured partner may maintain an action against the tortfeasor partner.

◆ Negligent Employee: Where injury to a partner is caused by the negligence of an employee of the partnership, the traditional rule has been that the negligence of the employee would be imputed to the partnership and partners, thus barring suit. The modern trend however is to permit the partner to sue. [See, Smith v. Hensley, 354

S.W.2d 744 (Ky. 1961)] ✭ Workers Compensation: A partner is an employer - not an employee. Accordingly, they are not permitted to recover under workers' compensation acts.

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E. Relations Between Partners and Third Parties: 1. Generally:

Application of the Law of Agency:● The Law of Agency:

✭ Governing Law: The authority of a partner to bind the partnership when dealing with third parties is governed by the law of agency.

✭ Agency Principles: Under agency principles, every partner is an agent of the partnership for the purpose of its business, and thus the act of every partner "for apparently carrying on in the usual way the business of the partnership" (within the scope of the partnership business) will bind the partnership and thereby bind the other partners.

✭ Liability for Act of a Partner: The partnership's liability for the act of a partner may be in contract, in tort, or for breach of trust.

● Elements of the Law of Agency Relating to Partnerships: ➔ Actual Authority ➔ Apparent Authority ➔ Notice and Knowledge ➔ Fraud ➔ Breach of Trust ➔ Liability of Partners

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E. Relations Between Partners and Third Parties: 2. Actual Authority:

Conveyance of Actual Authority:A partner has whatever authority the partner reasonably believes he has based on

the communications between the partnership and the partner. Actual authority can be granted either in the partnership agreement or by the consent of the partners.● Means to Grant Actual Authority:

➔ Partnership Agreement ➔ Majority Vote ➔ Unanimous Vote

Actual Authority by Means of Partnership Agreement or Majority Vote: ● Authorized in a Partnership Agreement: The partnership agreement may authorize a partner to act, in which case no further partnership

action is required for the partner to take the authorized action.Example: The partnership agreement of ABC investment partnership states that Bart shall haveexclusive authority to make all decisions regarding the purchase and sale of commodity futures. A

purchase by Bart of commodity futures will be binding on the partnership.

● Authorized by a Majority Vote of the Partners: The partnership may also authorize a partner to act by means of a majority vote of the partners. As a result if the partnership agreement is silent as to whether the partner may do the particular action sought to be taken, then a majority vote of the partners is what is usually required. The majority vote thereby will authorize the partner to act in certain classes of transactions without further consultations with the other partners.

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E. Relations Between Partners and Third Parties: 2. Actual Authority Continued:

Actual Authority by Means of Unanimous Vote: ● Authorized by a Unanimous Vote of the Partners: In certain situations, a unanimous, not a majority vote, of the partners is required. They include:

✭ Statutory Provisions:Certain statutory provisions require a partnership to act upon a unanimous grant of authority:

◆ ArbitrationA partner may not bind the partnership, nor her copartners individually, to a

submission to arbitration [NYSPL §20(3)(e)]. ◆ Assignment for Benefit of Creditors

A partner cannot bind her copartners by an assignment of partnership property for the benefit of creditors [NYSPL §20(3)(a)].

◆ Confession of JudgmentA partner has no implied power to confess a judgment or give a warrant of

attorney to confess a judgment against the partnership, although she has the power to compromise a debt in good faith and without fraud or collusion [NYSPL §20(3)(d)].

◆ GoodwillA partner has no implied power to dispose of goodwill of the business [NYSPL

§20(3)(b)]. ◆ Interference with Ordinary Partnership Business

No partner may do any act that would make it impossible to carry on the ordinary business

of the partnership [NYSPL §20(3)(c)].

✭ Partnership Agreement:If the partnership agreement specifically provides for other than a majority vote, then it, of course, governs. Additionally, it is generally held that unanimous consent is needed to engage in business other than business that contemplated by the agreement.

36


E. Relations Between Partners and Third Parties: 3. Apparent Authority:

Conveyance of Apparent Authority:Even where a partner lacks actual authority, he can-under general agency principles-bind the partnership because of his apparent authority (i.e., authority that

a third party reasonably believes the agent has because of the principal's actions).

There are specific rules in the following areas regarding the disposition of property that are helpful in analyzing this issue. They are as follows:

➔ Real Property ✭ Title in Partnership Name ◆ Conveyance in Partnership Name ◆ Conveyance in Individual Partner's Name ✭ Title in Name of Fewer than All Partners ◆ Conveyance in Name of Titleholders ◆ Conveyance in Name of Partnership or Fewer than All Titleholders ✭ Title in Name of All Partners

➔ Other Transfers of Interest in Real Property ✭ Mortgages ✭ Leases

➔ Personal Property37


E. Relations Between Partners and Third Parties: 3. Apparent Authority Continued:

Conveyance of Apparent Authority Continued:The rules regarding the disposition of property are as follows:

➔ Real PropertyThe Uniform Partnership Act (NYSPL) sets out the following rules regarding the apparent authority of a partner to convey real property of the partnership. ✭ Title in Partnership Name:

◆ Conveyance in Partnership Name:If title is held in the partnership name, title may be conveyed in the partnership name by any one partner. However, if the partner lacked actual or apparent authority to convey title, the partnership may recover the property from the transferee unless the property has subsequently been acquired by a bona fide purchaser [NYSPL §21(1)]. A bona fide purchaser is one who takes for value and without knowledge that the partner exceeded his authority.

◆ Conveyance in Individual Partner's Name:If title is held in the name of the partnership but a conveyance is made in an individual partner's name, the conveyance will pass the equitable interest of the partnership in the property only if the conveyance was authorized. If the conveyance was not authorized by the partnership, no interest passes [NYSPL §21(2)]. 38



Conveyance of Apparent Authority Continued:The rules regarding the disposition of property are as follows:

➔ Real PropertyThe Uniform Partnership Act (NYSPL) sets out the following rules regarding the apparent authority of a partner to convey real property of the partnership.

✭ Title in Name of Fewer than All Partners: ◆ Conveyance in Name of Titleholders:

If title is held in the name of fewer than all of the partners and the record does not show the right of the partnership, conveyance by the titleholders in their own names is effective. However, if they lacked actual or apparent authority to convey title, the partnership may recover the property from the transferee unless the transferee, or his assignee, is a bona fide purchaser [NYSPL §21(3)].

◆ Conveyance in Name of Partnership or Fewer than All Titleholders:Where title is held in the name of one or more partners, conveyance in the name of the partnership or fewer than all titleholders passes the equitable interest of the partnership if the conveyance was authorized. Otherwise, no interest will pass [NYSPL §21(4)].

✭ Title in Name of All Partners:If title is in the name of all of the partners, only a conveyance by all the partners passes the equitable interest in the property as well as legal title [NYSPL §21(5)].39



Conveyance of Apparent Authority Continued:

The rules regarding the disposition of property are as follows:

➔ Other Transfers of Interest in Real Property

✭ Mortgages:

Although there are no cases directly on point, it would appear that the same rules regarding transfers of title would generally be applicable.

✭ Leases:

Ordinary contract rules govern.

To the extent that the lease is within the scope of partnership business, one partner has the apparent authority to execute the lease on behalf of the partnership.

➔ Personal Property Ordinary contract rules govern both the sale and pledge of personal property.

40


E. Relations Between Partners and Third Parties: 4. Notice and Knowledge:

The Doctrine of Imputed Knowledge:To determine when a participating partner's knowledge will be imputed to the partnership, it is necessary to determine when the partner acquired the knowledge.

● When is Notice Effective: ✭ “Notice" Defined: "Notice" is a communication by a third person about a matter relating to partnership

business that is transmitted to one or more partners with the intent that the partnership be informed of the message communicated.

Example: Tom notifies Alan, who is a partner of ABC partnership, that he, Tom, is exercising his right to

renew his lease of space from the partnership for an additional two years. ABC has effective notice of the renewal.

✭ How Notice is Delivered:

◆ Oral-Direct: Unless otherwise required to be in writing, notice may be delivered orally by third person to a partner [NYSPL. §3(2)(a)].

◆ Written: Notice may be given by delivering a written statement to a partner or to a proper person at the partner's office or residence [NYSPL. §3(2)(b)]. 41


E. Relations Between Partners and Third Parties: 4. Notice and Knowledge Continued:

The Doctrine of Imputed Knowledge Continued:● When Knowledge Imputed: ✭ “Knowledge” Defined: ◆ Information Known: "Knowledge" refers to information that is or reasonably should be known

by an individual partner. ◆ Partner’s Mind: When asking whether a partner "knows" something, you are concerned with what was actually in the partner's mind, although it will be necessary to resort to external objective criteria to make the determination. ◆ Deemed to Know: Furthermore, a person is deemed to how something when “they have knowledge of such other facts as in the circumstances shows bad faith" [NYSPL.§3(2)(b)].

✭ Whose Knowledge: In determining whether the partnership is to be charged with the knowledge of a partner regarding a particular transaction, it is necessary to distinguish between knowledge of a partner who is participating in the transaction and a partner who is not so participating. ◆ Participant: To determine when a participating partner's knowledge will be imputed to the

partnership, it is necessary to determine when the partner acquired the knowledge.- Acquired When Partner: If the knowledge was acquired by the partner while he was a member

of the partnership, his knowledge will be imputed to the partnership.- Acquired When Not a Partner: If the knowledge was acquired when the partner was not a

member of the partnership, then his knowledge will be imputed to the partnership only if the information is "present to his mind" at the time he is acting for the partnership [NYSPL. §23]. ◆ Non-Participant: Information possessed by a partner who is not participating in a transaction

will be imputed to the partnership if under the circumstances, the partner "reasonably could and

should have communicated it" to the participating partner (but it should be noted that fraud is an

exception to this rule) [NYSPL. §23].

42


E. Relations Between Partners and Third Parties: 4. Notice and Knowledge Continued:

The Doctrine of Imputed Knowledge Continued:

● Notice of Dissolution:

✭ When A Partner Continues to Bind the Partnership: Section 65 of the Uniform Partnership Act [NYSPL] provides that where dissolution is caused by the act, death, or bankruptcy of a partner, another partner may bind the

partnership to a liability as if the partnership had not been dissolved, until the binding

partner has notice or knowledge of the act, death, or bankruptcy.

✭ Statutory Exception: This is a statutory exemption to the agency rule that provides that an agent's authority ceases upon the death of the principal.

43


E. Relations Between Partners and Third Parties: 5. Fraud:

The Doctrine of Fraud:The partnership is liable for any wrongful act or omission by a partner "acting in the ordinary course of the business of the partnership or with authority of his copartners." [NYSPL § 24]

● “Fraud” Defined:

“Blacks Law Dictionary (Fifth Edition Page 594) defines “fraud” as:

“Any intentional perversion of truth tor the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal

right;

A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal

injury; or

Any kind of artifice employed by one person to deceive another.”

“An intentional misrepresentation of a material fact for the purpose of deceitfully inducing another.” 44


E. Relations Between Partners and Third Parties: 5. Fraud Continued:

The Doctrine of Fraud Continued:● Fraud On A Third Party: ✭ Within the Scope of Partnership Business: Where one partner, acting within the scope of partnership business, defrauds a third party, the partnership will be held liable.

Example: Peter, a partner in a brokerage firm, accepts securities from a customer of the firm and, withoutknowledge of the other partners, endorses the securities, converts them to cash, and deposits the

cash in his own bank account. The partnership is liable. ✭ Outside the Scope of Partnership Business: In this category, it is often difficult to determine whether the partner is defrauding a third party, the partnership, or both. Generally, if the fraudulent act involves a transaction outside the scope of partnership business, the partnership will not be held liable.

Example: Paula, a partner in a law firm, tells Tom, a client of the firm, that the firm is making investments forclients. Tom gives Paula a check for $3,000 made out to the firm. Paula has the check depositedin the firm account. She then draws a firm check payable to and signed by herself, and deposits itin her own account. Is the firm liable to Tom? No, because Paula had no authority to accept the

check. As a law firm, the making of investments for clients is outside the scope of partnership. Paula was acting for her own benefit. Paula's knowledge will thus not be imputed to the law firm.

● Fraud On Partnership:If a partner seeks to defraud the partnership as part of a transaction with a third party and that

party is aware of the fraud, the partnership is not liable to the third party.Example: Patrick is a partner in a manufacturing business. He contracts to sell $5 million worth of widgets to

Teddy for $3 million, with the understanding that Teddy will pay him a kickback of $1 million. Teddy cannot enforce the contract against the partnership.

45


E. Relations Between Partners and Third Parties: 6. Breach of Trust:

The Doctrine of Breach of Trust:

● Within the Scope of A Partner’s Apparent Authority:

The partnership is liable if one partner misapplies money or property of a third person received by him within the scope of his apparent authority [NYSPL §25(1)]

● Within the Scope of Partnership Business:

The partnership is also liable if money or property received in the ordinary course of business is misapplied by a partner while in the custody of the

partnership [NYSPL §25(2)].

46


E. Relations Between Partners and Third Parties: 7. Liability of Partners:

Civil Liability:

● Types of Civil Liability:

✭ Contract Liability: ◆ Contracts Made By A Partner: Partners will be liable on contracts made by a partner in the

scope of the partnership business and on any other contracts expressly authorized by the

partners [NYSPL §26(a)(2)] ✭ Tort Liability: ◆ Torts Made By A Partner: Partners will be liable for any torts committed by a partner or by an

employee of the partnership in the ordinary course of partnership business [NYSPL §24]

Note: This liability will be extended to cover frauds committed by a copartner in course of partnership

business, even though the other partners have no connection with, knowledge of, or participation in the fraud.

Example: Abby, Bob, and Carol are partners and members of a stock brokerage firm. The firm has received

certain securities belonging to Diane. Abby, one of the partners, fraudulently converts the securities to her own use. In an action by Diane against the partnership, Carol defends on the ground that she did not participate in or have knowledge of the conversion. Carol is nonetheless liable because the conversion took place while she was a partner.

Compare: Carol would not be liable if the partnership business was totally unrelated to securities. In that

case, Abby would not have had authority to receive securities.

47


E. Relations Between Partners and Third Parties: 7. Liability of Partners Continued:

Civil Liability Continued:

● Nature of A Partner’s Liability:

✭ In General:

◆ Joint Liability: Partners are jointly liable for all contract liabilities, and jointly and severally liable for all torts or breaches of trust (e.g., misapplication of money or property

received from third persons) [NYSPL §26]

✭ Parties: ◆ Joint and Several: Where there is joint and several liability, an action may be brought against any one or more of the partners or the partnership, but a judgment is not personally binding on a partner unless they have been served. [CPLR §5201(b)].

◆ Joint: Where there is simply joint liability, all partners should be joined as defendants.

- This may be done by naming all the partners as defendants or by naming the partnership as a defendant [CPLR §1025].

- Where fewer than all of the partners are served, a judgment can be enforced against partnership property owned by named defendants, whether served or nonserved.

[CPLR §1510]

- The judgment , however, cannot be enforced against the individual assets of a named defendant who was not served.

✭ Extent of a Partner’s Liability:

Each partner is personally and individually liable for the entire amount of all partnership obligations, whether arising in contract or tort. [Midwood Development Corp. v. K 12th Associates, 146 A.D.2d 754 (1989) Where one partner is thus compelled to pay or satisfy the whole of a partnership obligation, he is entitled to indemnification from the partnership. He also may require the other partners to contribute their pro rata shares of the payment if the partnership is unable to indemnify. (See N.E., F., supra.)

d. Change of Partnership Membership as Affects Partners' Liability

1) Liability of Incoming PartnerA person admitted as a partner into an existing partnership is liable for all the

obligations of the partnership arising before her admission as though she had been a partner when such obligations were incurred. However, her liability shall be satisfied only out of partnership property. [P.L. $281

Note: She may make herself personally liable for the existing obligations (beyond her interest in the partnership property) by novation or by promising to pay existing obligations. [Wisnouse v. Telsey, 367 F. Supp. 855 (S.D.N.Y1.9 73)J

2) Liability of Retiring PartnerA retiring partner remains liable on all obligations incurred by the partnership while a

member of the partnership, unless there has been payment, release, or novation. In general, she is liable for acts done until she has not only withdrawn from the partnership, but has also given notice of her withdrawal. (See VLB., infra.)

2. Criminal LiabilityThe mutual agency of partners is not sufficient to make other partners criminally

responsible for the crime of a partner committed within the scope of the partnership business, unless the other partners participated in the commission of the crime either as principals or accessories.

48



Civil Liability Continued: ● Nature of A Partner’s Liability: ✭ Extent of a Partner’s Liability: Each partner is personally and individually liable for the entire amount of all partnership obligations, whether arising in contract or tort. [Midwood Development Corp. v. K 12th

Associates, 146 A.D.2d 754 (1989) Where one partner is thus compelled to pay or satisfy the whole of a partnership obligation, he is entitled to indemnification from the partnership. He also may require the other partners to contribute their pro rata shares of the payment if the partnership is unable to indemnify. ✭ Change of Partnership Membership as Affects Partners' Liability ◆ Liability of Incoming Partner: A person admitted as a partner into an existing partnership is

liable for all the obligations of the partnership arising before her admission as though she had been a partner when such obligations were incurred. However, her liability shall be satisfied only out of partnership property. [NYSPL §28]

Note: A partner may make himself personally liable for the existing obligations (beyond her interest in the

partnership property) by novation or by promising to pay existing obligations. [Wisnouse v. Telsey, 367 F. Supp. 855 (S.D.N.Y1.9 73)J ◆ Liability of Incoming Partner: A retiring partner remains liable on all obligations incurred by

the partnership while a member of the partnership, unless there has been payment, release, or novation., and as a result, they are liable for acts done until they have not only withdrawn from

the partnership, but has also given notice of their withdrawal.

49



Criminal Liability:

● Nature of A Partner’s Criminal Liability:

✭ Extent of a Partner’s Criminal Liability:

The mutual agency of partners is not sufficient to make other partners criminally responsible for the crime of a partner committed within the scope of the partnership business, unless the other partners participated in the commission of the crime either as principals or accessories.

50



Authority of Partners:

• Scope of authority is determined by partnership agreement.

• Majority of partners prevails.

• Individual partners may have express authority under agency rules.

– Implied powers as co-owner of business.

– Partnership may be bound by act of partner with third party if third party did not know of limitations.

51



52



53



DUTIES RIGHTS LIABILITIES

Loyalty and Good Faith Management Firm Contracts

Obedience Inspection of Books Torts of EmployeesPartners WithinScope of BusinessShare of Profits

Reasonable Care Repayment of Loans Breach of Duties

Information Payment of Interest Partners Remain LiableAfter Dissolution

Accounting Contribution and Indemnity New Partner NotPersonally Liable forExisting DebtsParticipation in Distribution

of Capital54


E. Relations Between Partners and Third Parties: 8. Review:

Prohibited Transactions:

• Certain transactions a partner cannot undertake without express approval:

Cessation of business

Suretyship

Arbitration

Confession of judgment (admission)

Assignment of partnership property

Personal obligations.

55


E. Relations Between Partners and Third Parties: 8. Review Continued:

Duties, Rights and Liabilities of Partners:

• Duties (general agency law):

- Loyalty and good faith.

- Obedience.

• Rights:

- Management.

- Inspection of Books.

- Share of Profits.

- Contribution and Indemnity.

56


F. Limited Partnerships: 1. Generally:

Limited Partnerships:● Introduction ✭ Definition: A limited partnership is a partnership formed by two or more persons under

the laws of New York and having one or more general partners and one or more limited partners. It differs from a general partnership in two basic ways:

◆ Statutory Creation: A limited partnership is unknown at common law and is created under specific statutory authority; and

◆ Limited to the Capital Contribution: The liability of a limited partner for partnership debts is generally limited to the capital that she contributes to the partnership.

● Formation ✭ Certificate: To form a limited partnership, a certificate of limited partnership must be

executed and filed with the department of state. Such a certificate must set forth: ◆ Name: The name of the limited partnership; ◆ County: The county in which the office of the limited partnership is to be located; ◆ Service of Process: For Service of Process:

- A designation of the department of state as agent for service of process;- The name and address of a partnership agent for service of process; and - The partnership office address where any process can be mailed;

◆ Partner Names: The name and business address of each general partner; ◆ Date of Dissolution: The latest date upon which the limited partnership is to dissolve; and ◆ Partner Names: Any other matters the general partners determine to include therein

[See NYSPL §121-201] 57



Limited Partnerships Continued:● Name of Partnership ✭ Name Requirements: The partnership name must contain the words "limited partnership" or the abbreviation "L.P.," and may not contain the name of a limited partner unless it is

also: - The name of a general partner, - The corporate name of a corporate general partner, or - The business was conducted under the name before the admission of the limited partner.

[See NYSPL §121-102]● Nature of the Partner’s Contribution: ✭ Cash, Property or Services Rendered: The contribution of a partner may be in cash,

property, or services rendered, or a promissory note or other obligation to contribute cash or

property or to perform services [NYSPL §121-501]. ✭ Liability for Contribution: Unless the partnership agreement provides otherwise, a partner is obligated to make a promised contribution, even if they are unable to perform because of death, disability, or any other reason. ◆ Cash Substitute: If a partner does not make a required contribution of property or services, they are obligated, at the option of the limited partnership, to contribute cash equal to that portion of the value, as stated in the partnership records, of the stated contribution that has not been made [See NYSPL §121-502] ✭ Compromise of Liability: Subject to the provisions in the partnership agreement, a partner's obligation to make a contribution may be compromised only by the consent of all of the partners. However, a partnership creditor who extended credit in reliance on the obligation may enforce the original obligation [NYSPL §121-502 (b)]

58



Limited Partnerships Continued:● Liability of Partners:

✭ Liability of General Partner: Except as otherwise provided in statute or in the partnership agreement, a general partner of a limited partnership is subject to all of the liabilities of a partner in a partnership without limited partners [NYSPL § 121-403(a)]. Thus, a general partner is personally liable for the limited partnership's obligations.

✭ Liability of Limited Partner:

◆ General Rule-Not Liable for Partnership Obligations Beyond Contribution: As a general rule, a limited partner is not liable for the obligations of a limited partnership for any amount beyond her contribution [NYSPL § 121-303].

◆ Exceptions to the General Rule Where the Limited Partner:

- Is also a General Partner;- Participates in Control of Business; or- Has their Name Used in the Partnership Name.

59



Limited Partnerships Continued:● Rights of Partners:

✭ Rights of Both General and Limited Partners:

◆ Right to Share Profits and Losses: The profits and losses of a limited partnership are allocated among the partners, and among classes of partners, in the manner provided in the partnership agreement. If the partnership agreement does not so provide in writing, profits and losses are allocated on the basis of the value, as stated in the partnership records, of the contributions made by each partner to the extent they have been received by the partnership and have not been returned [NYSPL §121-503].

◆ Right to Assign Partnership Interest: Unless the partnership agreement provides otherwise, a partnership interest is assignable in whole or in part. An assignment of a partnership interest:

- Does not dissolve a limited partnership;- Does not entitle the assignee to become or to exercise any rights of a partner; - Entitles the assignee to receive the distribution to which the assignor would be

entitled;- Causes, unless the agreement provides otherwise, the partner to cease to be a

partner.

[See NYSL. §121-702(a)].

60



Limited Partnerships Continued:● Rights of Partners Continued:

✭ Rights of Both General and Limited Partners: ◆ Right to Assign Transact Business with the Partnership: Except as provided in the

partnership agreement, a partner may lend money to and transact other business with the limited partnership and, subject to other applicable law, has the same rights and obligations with respect thereto as a person who is not a partner [NYSPL §121-108].

◆ Right to Withdraw:- General Partner: A general partner may withdraw from the partnership at any time by

providing written notice to the other partners, but if the withdrawal is in violation of the partnership agreement, the partner will be liable to the partnership for damages caused by his breach of the agreement [NYSPL §121-602].

- Limited Partner: A limited partner may withdraw from the partnership at the time or upon the

happening of events specified in the partnership agreement. if the agreement does not specify in

writing the time or the events upon the happening of which a limited partner may withdraw or a

definite time for the dissolution or winding up of the limited partnership, a limited partner may

withdraw upon not less than six months' prior written notice to each general partner at the address

on the books of the limited partnership at its office in New York [NYSPL §121-603].

◆ Right to Dissolve: On application by or for a partner, a supreme court in the judicial district in which the office of the limited partnership is located may decree dissolution of a limited partnership whenever it is not reasonably practicable to carry on the business in conformity with the partnership agreement [NYSPL §121-802].

61



Limited Partnerships Continued:● Rights of Partners Continued:

✭ Rights Specific to General Partners: Except as otherwise provided in statute or in the partnership agreement, a general partner of a limited partnership also has all of the rights of a partner in a partnership without limited partners, including the right to manage the limited partnership.

✭ Rights Specific to Limited Partners:

◆ Right to Vote: The partnership agreement may grant to all or a specified group of limited partners the right to vote (on a per capita or other basis) upon any matter, as long as the vote does not constitute taking control of the business.

◆ Right to Information: Each limited partner the right to:

- Inspect and copy any of the partnership books required to be maintained; and

- Obtain from the general partners from time to time, upon reasonable demand, true and full information regarding the state of the business and financial condition of the limited

partnership, the limited partnership's federal, state, and local income tax returns, and any

other information as is just and reasonable.

62



Limited Partnerships Continued:● Dissolution and Distribution:

✭ Dissolution: A limited partnership is dissolved and its affairs must be wound up upon the happening of the first to occur of the following:

◆ At the time specified in the certificate of limited partnership; ◆ Upon the happening of events specified in writing in the partnership agreement; ◆ Upon written consent of all general partners and two-thirds of each class of limited partners; ◆ Upon withdrawal of a general partner unless:

- the partnership agreement permits the continuation of the business by the remaining general partner(s), or

- if within 90 days after withdrawal, all partners agree in writing to continue the business and to the appointment, effective as of the date of withdrawal, of one or more additional general partners if necessary or desired; or

◆ Upon entry of a decree of judicial dissolution. [See NYSPL §121-801].

✭ Distribution of Assets: Upon the winding up of a limited partnership, the assets are distributed as follows:

◆ To creditors, including partners who are creditors, in satisfaction of liabilities of the limited partnership, other than liabilities for distributions to partners upon withdrawal;

◆ Except as provided in the partnership agreement, to partners and former partners in satisfaction of liabilities for distributions to partners upon withdrawal; and

◆ Except as provided in the partnership agreement, to partners first for the return of their contributions, and second, respecting their partnership interests, in the proportions in which the partners share in distributions. [See NYSPL §121-804]. 63


G. Dissolution and Termination of Partnerships: 1. Generally:

The Process of Dissolution:

● Methods of Dissolution:

✭ Dissolution Defined: Dissolution is the "change in the relationship of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business" [NYSPL §121-108].

✭ What Dissolution Means: It is important to note that a dissolution is simply a change in legal relationship. It does not mean that the business has been ended or any assets have been distributed to partners.

✭ What Causes Dissolution: Dissolution may be caused in three ways:

◆ By act of the partners;

◆ By operation of law; or

◆ By court decree.

64



The Process of Dissolution: ● Causes of Dissolution:

✭ Act of the Partners: ◆ Per Agreement: A partnership contract may set a definite term to the partnership relationship or it may set achievement of a particular undertaking as a purpose of the partnership. When that term has elapsed or the undertaking is accomplished, the partnership automatically terminates or dissolves [NYSPL §62(1)(a)].

Note: Even where partners covenant with each other that the partnership shall continue for a fixed

period, any partner may dissolve it by express will at any time although they may subject themself to an action for damages for the breach of the partnership agreement [NYSPL §62(2)].

◆ Mutual Assent: A partnership may be brought to an end at any time by the mutual assent of all partners [NYSPL §62(1)(c)].

◆ Expulsion of Partner: There is no common law right to expel a partner. The partnership agreement, however, may provide for involuntary dismissal, with or without cause (subject to the implied term of good faith), of a partner. [See Gelder Medical Group v. Webber, 41 N.Y.2d 680 (1977)]. If any partner is expelled from the business in accordance with a power to do so conferred by the agreement between the partners, this will result in dissolution [NYSPL §62(1)(d)].

◆ Partnership at Will: Dissolution may be caused without liability by the express will of any partner when no definite term or particular undertaking is specified [NYSPL §62(1)(b)].

Example: Annie and Barry enter into an oral partnership agreement to continue for five years. Annie

notifies Barry of her intention to dissolve the partnership before the expiration of the five years. Because the oral agreement is unenforceable under the Statute of Frauds, the partnership is treated as a partnership at will, and therefore may be dissolved by either partner without liability at any time.

65



The Process of Dissolution: ● Causes of Dissolution:

✭ Operation of Law: ◆ Partnership Activity Unlawful: Any event that makes it unlawful for the business to be carried on will dissolve the partnership [NYSPL §62(3)].

Example: Arnie and Beth are copartners in the business of selling liquor when the state of New

York passes a prohibition law making such business illegal. Accordingly, the partnership is thereby dissolved.

◆ Death of a Partner: The death of a partner will dissolve the partnership [NYSPL. §62(4)]. ◆ Bankruptcy: The bankruptcy of any partner or the partnership will dissolve the partnership [NYSPL. §62(5)].

✭ Decree of a Court of Equity: Upon the application of one or more of the partners, a court of equity may, for sufficient reason, decree the dissolution of a partnership. The following are sufficient reasons for a decree of dissolution:

◆ Breach of Agreement: A partner commits willful or persistent breaches of the partnership agreement or otherwise conducts herself so that it is not reasonably practicable to carry on the business in partnership with her [NYSPL §63(l)(d)];

◆ Unprofitablity: The business can only be carried on at a loss [NYSPL §63(1)(e)]; ◆ Misconduct: A partner is guilty of such conduct as tends to "affect prejudicially the carrying on of the business" [NYSPL §63(1)(c)];

◆ Incompetence: A partner has been declared incompetent in a judicial proceeding or is shown to be of unsound mind [NYSPL §63(1)(a)];

◆ Incapability: A partner is shown to be incapable of performing her part of the partnership contract [NYSPL §63(l)(b)]; and

◆ Other Circumstances: The court determines that other circumstances would render a dissolution equitable [NYSPL §63(1)(f)].

66



Notice of Dissolution: ● Generally:

✭ Proper Notice: ◆ Publication: Third parties who have had "dealings" with the partnership (except those who

have extended credit and those who have simply known of the partnership prior to dissolution are entitled to proper notice published in newspapers of general circulation in the area in which the partnership carries on its business.

◆ Failure to Publish: Failure to furnish this information to such third parties will bind members of the former partnership to such third parties who, while unaware of the dissolution, extend credit to the partnership [NYSPL §66(1)(b)].

✭ Personal Notice:

◆ Creditors: Those who were creditors at the time of dissolution or who had extended credit to the partnership prior to dissolution are entitled to personal notice.

◆ Size and Number of Transaction Doesn’t Matter: It does not matter whether a creditor has advanced a large or small amount or if there were only one or two transactions between the partnership and the creditor.

Note: A third party who has dealt with the partnership only on a cash basis and has never

been apartnership creditor is only entitled to the notice that is given the general public.

✭ Liability of Invisible Partners: ◆ Liability Limited to Partnership Assets: The liability of a partner for post dissolution

transactions when notice was not given is limited to partnership assets if the partner was so inactive in partnership affairs that credit to the partnership was not based on her personal credit and the creditor in fact did not know she was a partner [NYSPL §66]. 67



Authority of Partners to Transact Business after Dissolution: ● Generally:

✭ General Rule:

◆ Dissolution Generally Terminates Authority: As a general rule, the dissolution of a partnership terminates the authority of any partner to act as an agent for either the partnership or the other partners, except for the purpose of winding up the partnership affairs [NYSPL §66(1)(a)].

◆ An Exception in the Agreement: If the partnership agreement provides that the business is to be continued by one or more of the partners, the agreement controls and the business will be continued by the new partners without any winding up.

✭ Winding Up:

◆ Actions to Conclude Partnership Operations: After dissolution, absent an agreement to the contrary, the partnership must be wound up.

◆ Authority to Wind Up: A partner has authority to carry out the necessary acts to wind up the partnership business.

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Authority of Partners to Transact Business after Dissolution: ● Acting to Wind Up the Partnership:

✭ Winding Up Continued:

◆ Actions That Terminate Wind Up: Generally only transactions designed to terminate rather than to carry on the business are within the scope of the partner's actual authority.

◆ Authority is Limited to Old Business: In short, "old business" can be wrapped up and if "new business" is entered into, the partner who continues to carry on the new business on behalf of the partnership with knowledge of the dissolution assumes sole liability, and as a result, if such losses result, such partner alone will bear them.

◆ Old Business vs. New Business: After dissolution but before termination, the liquidating partners can bind the partnership in transactions winding up old business, but not in transactions constituting new business. ➢ Old Business: The following constitutes Old Business:

✪ Assigning claims; ✪ Selling partnership assets; ✪ Collecting debts due; ✪ Compromising claims; ✪ Distributing assets of the business; ✪ Paying off creditors;

and ✪ Performing contracts made prior to dissolution.

➢ New Business: The following constitutes New Business:

✪ Extending time on a debt; ✪ Entering into new contracts; and ✪ Increasing obligations,

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Authority of Partners to Transact Business after Dissolution: ● Acting to Wind Up the Partnership:

✭ Who May Wind Up:

◆ All Partners: If all partners agree to a dissolution of the partnership or the partnership term expires, then all the partners have the right to wind up the affairs of the partnership.

◆ Remaining Partners: If a partner dissolves the partnership by bankruptcy, then the remaining partner(s) have the right to wind up the partnership's affairs.

◆ Surviving Partners: If a partnership is dissolved by the death of a partner, then the surviving partner(s) have the right to wind up partnership affairs.

◆ Executor: If the partnership affairs have not been wound up when the last surviving partner dies, then the executor or administrator of such last survivor's estate has the right to wind up the partnership's affairs [NYSPL §68].

✭ Who May Not Wind Up:

◆ Partner Wrongfully Dissolving Partnership: A partner who wrongfully dissolves a partnership is not entitled to wind up the affairs of the partnership [NYSPL §68]. 70



Final Distribution after Dissolution:

● Distribution of Assets in a Final Accounting:

✭ Order of Distribution: Where a solvent partnership is dissolved and its assets are reduced to cash, such cash shall be used to pay the partnership's liabilities in the following order:

◆ Outside Creditors: Creditors who are not partners must be paid before the partners themselves receive any payments.

◆ Partners:

➢ Advances: Where a partner advances more than the capital provided for in the agreement, such advances (and any interest due) must be returned to him before the surplus can be divided among the partners.

➢ Contributions to Capital: After payments of advances or loans, payments are to be made to partners on account of agreed contributions to capital.

➢ Surplus or Profits: Whatever cash remains after the above payments are made is distributed among the partners.

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Thank you for Coming• Bonus Questions of the Day • For next time – Read Chapter 44

We are a hot bench.• Questions.

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Slide Set Five: Introduction to Business Organizations Sole Proprietorships and Partnerships 1.

Documents

sole proprietorships

markets business

development of business

type of business organization

assets of sole proprietors

corporations business

particular type of business

business owner file