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PARTNERSHIP WWW 2019 – EH 401 ATTY.

ESPEDIDO

Legend:
Bold – Either Atty’s question or a sub-header/gist of the recitation
4. To indemnify the partnership for the Damages caused to
Italicized – Discussions in local dialect; could also mean comments of the editors or it by the delay in the contribution or the conversion of any
personal opinion. Hehe!
Bracket [ ] – Atty’s jokes or segways
sum for his personal benefit.
Red – Important/reminders

GR – General rule
Types of Partners
XPN – Exception a. Capitalist partner — one who contributes money or
Q – Question
A – Answer
property to the common fund (Art. 1767.);
OTOH – On the other hand b. Industrial partner — one who contributes only his industry
or personal service (Arts. 1789, 1767.);
Note: We will try to improve as we go along the semester!
c. General partner — one whose liability to third persons
September 3, 2019 extends to his separate property; he may be
either a capitalist or industrial partner. (Arts. 1843, 1816)
Obligations of a Partner d. Limited partner— one whose liability to third persons is
1) To contribute at the beginning of the partnership or at the limited to his capital contribution
stipulated time the money, property, or industry which he e. Managing partner — one who manages the affairs or
may have promised to contribute business of the partnership; he may be appointed either in
2) To answer for eviction in case the partnership is deprived the articles of partnership or after the constitution of the
of the determinate property contributed partnership. (Art. 1800)
3) To answer to the partnership for the fruits of the property f. Liquidating partner — one who takes charge of the winding
the contribution of which he delayed, from the date they up of partnership affairs upon dissolution (Art. 1836.);
should have been contributed up to the time of actual g. Partner by estoppel— one who is not really a partner not
delivery being a party to a partnership agreement, however, due to
4) To preserve the said property with the diligence of a good his representations, he is considered and is liable as a partner
father of a family pending delivery to the partnership for the protection of innocent third persons.
5) To indemnify the partnership for any damage caused to it h. Continuing partner— one who continues the business of a
by retention of the same or by the delay in its contribution partnership after it has been dissolved
by reason of the admission of a new partner, or retirement,
Q: If A promised to deliver a parcel of land of Sept 1 death, or expulsion of one or more
and it is now Sept 3, what is he supposed to be liable partners (Art. 1840.)
for? i. Surviving partner — one who remains after a partnership
Delivery of the property, delivery of the fruits, the has been dissolved by the death of any
preservation of the property, and indemnification of damages partner (Art. 1842.)
that were caused by the delay of delivery. j. Subpartner — one who, not being a member of the
partnership, contracts with a partner with reference to the
Q: If crops were harvested on Aug 30, should A be latter’s share in the partnership. (Art. 1804)
compelled to deliver the fruits?
Yes, but ONLY the crops that are were harvested after Sept Q: May an industrial partner be a capitalist partner at
1. the same time?
Yes, the law does not prohibit one to be a capitalist and an
Q: OTOH, if he promises to deliver money before Sept industrial partner.
1, 2018 and it is now Sept 2019, what has become of
him? Q: How?
A debtor. He’s supposed to deliver the money as well as the A partner can be a capitalist partner and an industrial partner
interest equivalent to one year. if aside from his services, he contributes his money and
property to the partnership.
Q: So that if during the 1-year period, because his
money was not delivered and the partnership was Discussion (should recite): In our previous example
obliged to borrow from a lender who demanded an wherein the industrial partner of a parlor started a banana
interest double the legal rate, say 20%, and the legal cue business outside the parlor because the partner made
rate is only 6%, A shall be liable for? use of his lean hours from the original business, the banana
The partner’s liable for the principal amount, damages, AND cue business flourished.
20% interest. Because the law says:
It is settled that an industrial partner is not allowed to engage
Obligations of Partner as Debtor in any kind of business aside from the business of the
1. To Contribute on the date due the amount he has partnership. And if the industrial partner decides to engage
undertaken to contribute to the partnership; in another kind of business, the capitalist partner has the
2. To Reimburse any amount he may have taken from the option either to exclude him from the business or avail
partnership coffers and converted to his own use; himself of the benefits that the industrial partner has
3. To pay the agreed or legal Interest, if he fails to pay his obtained in violation of such provision, with damages in
contribution on time or in case he takes any amount from the either case.
common fund and converts it to his
own use; and And even though the nature of the other business is not the
same with that of the partnership (parlor & banana cue),
regardless of the non-competition between the two, the

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PARTNERSHIP WWW 2019 – EH 401 ATTY. ESPEDIDO

prohibition under the law is absolute, that the industrial Reason of the Law
partner cannot engage in another business other than that To really see if she is still interested in the partnership and
of the partnership. she has the money. Here, we shall observe not only plain
refusal to make additional investment but deliberate refusal
EXCEPTION! If there is express consent of the other to pursue the business.
partner/s.
Q: As to management, how is partnership managed?
Situation: INDUSTRIAL TURNED INTO CAPITAL All partners are managers if none of them is appointed as
Because of the banana business, the industrial partner was managing partners. They can also agree as to who will be
able to save money and invested such a money to the the managing partner. It can be one, two, or more of them.
partnership. He became an industrial partner AND a capitalist
partner at the same time. Now, can the original capitalist Q: Will being a managing partner prevent him from
partner still exercise the options given under the law dealing with the partnership?
(exclusion and sharing of profits)? No. He can still deal with the partnership.

A: Yes, he still can. The prohibition applies whether you are If the managing partner is dealing car batteries and the
now in any other capacity. If you are an industrial partner, partnership is into transportation business, he can transact
regardless if you become a capitalist partner in the long-run, with the partnership. He can still sell batteries to the
the prohibition and its consequence still applies. partnership, precisely because they have separate
personalities distinct from each other.
Q: How much money must a partner contribute?
If there is a stipulation then the partner contributes in Q: In an instance wherein the partnership and the
accordance with the stipulation, but absent such stipulation, managing partner has the same debtor, and the
the partners shall contribute equally. managing partner collects an amount from such a
debtor, to which credit must the payment be applied?
Situation: LOSS OF PROFIT x IMMINENT LOSS You qualify.
Here’s a partnership of Ms. Senagan and Ms. Ho with a
capital of 10M, engaging in car dealership. Until one day, the Requisites:
cousin of Ms. Ho was elected as mayor and Ms. Ho took 1. There must be 2 debts, 1 owing to the managing partner
advantage of such a connection. The PNP needed 20 units of and another to the partnership.
patrol cars, hence he had a deal with the local government 2. Both debts must be due and demandable.
to sell 20 cars for 20M. 3. The one who collects should be the managing partner or
an authorized person.
But assuming that under existing rules, nobody could deal
with the government unless the capital was 15M. So, you are Rules/Application:
not qualified to deal, your partnership only having a capital 1. If the managing partner issues a receipt in his own name
of 10M. And if you could only qualify and deliver the needed or for himself, the amount received would be applied to both
patrol cars, this would have given you a profit of another 5M. the partnership debt and his own debt proportionately.
2. If the managing partner issues a receipt in the name of
So, you proposed to Senagan by saying that there is an the partnership, everything goes to the partnership.
opportunity for us, so long as we put up additional capital, 3. These rules are without prejudice to the option of the
2.5M for each of us, we can qualify and deal with the LGU debtor to choose to apply the payment to the more onerous
and earn 5M. Senagan said, “no I cannot contribute 2.5 mil debt.
I don’t have the money to contribute.”
Situation: CAR ACCIDENT
Q: Can you compel Senagan? There is a car rentals partnership. One day, while the partner
A: No, because under the law a partner can only be was driving one of the cars owned by the partnership, he met
compelled to contribute additional capital in the partnership an accident because he was a little tipsy, and caused the
is if there is an imminent loss of the partnership. This case death of 5 pedestrians, to which, the partnership had to pay.
merely involves a loss of a possible profit, not an imminent Can the partnership demand from the managing partner?
loss
A: Yes, the partnership can demand from the partner who
Imminent loss, defined caused the death, regardless of his reason or any defense
The kind of loss that if we do not make additional that he was diligent in driving.
contribution, it might lead to bankruptcy or closure of the
business. Situation: CLAIM FROM ONE PARTNER
One Christmas, the partners tried to look at their bank
Q: What are your remedies then? accounts. There was no profit, it indicated 3 debtors of the
If she has the means to contribute, she can be compelled to partnership, X Y and Z and there is no cash available. These
do so. If she refuses, she will have to sell her interest in the 3 debts are due and demandable already. So, the partners
partnership. agreed that the 3 of them, A B and C will have their separate
tasks in collecting the debt; A-X, B-Y, C-Z. A & B came back
If, OTOH, she does not have the means to pay additional after Christmas with their collections, however, C was not
capital, she cannot be compelled to do so. able to collect from Z. Will C just suffer in silence?

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PARTNERSHIP WWW 2019 – EH 401 ATTY. ESPEDIDO

Situation: REAL ESTATE CUSTOMERS


A: No, in that case, when some partners receive in whole or You were a partner and you proposed to Ms. Dasig to engage
in part the profits of the partnership while the others were in real estate business, you will be responsible to look for
not able to collect, and that the debtor of such partnership customers and Ms. Dasig will be responsible to look for the
seemed to be insolvent, those who were able to collect their land.
shares shall be obliged to the distribute their collection to the
partners who did not received any. One day, you had a buyer. Ms. Dasig encouraged you to
make representations and tour the buyer around and
Situation: RISK OF LOSS/DAMAGE entertain them. You brought them to a karaoke bar, and you
Here are the partners, A B and C, engaging in rice dealings. hired 4 girls to entertain the buyers, and you were able to
A contributed his Ford Truck with specific plate number, color spend P50,000 for that evening. You asked for the receipt
red; B contributed 150 sacks of rice to be loaded on board; and when you reported to your partner, you asked for a
and C contributed his parcel of land. The truck, however, got refund.
burned, what happens now to the partnership?
Q: What could a partner demand?
A: The partnership could still subsist. The partners who Reimbursement for expenses so long as the expenses are
contributed the truck is obliged to contribute another truck necessary, just and reasonable.
because it’s his responsibility to deliver the truck.
Q: How will we know if it is reasonable and
Q: Can he now demand to the partnership the value necessary?
of his truck? (1) Compare the expected profit and the expense incurred;
We have to qualify as to whether it was the ownership of the and
car that was contributed or merely the use thereof. For if it (2) The expense is considered as a legitimate expense, it was
was the ownership, the he can demand from the partnership used in relation to the business
but if it was only the use then he has to bear the loss.
Considering that we engage in the selling of lots, the
Q: OTOH, if the rice, which was intended to be sold, potential profit that we’re talking about is big while 50,000
was damaged because of rain and it was flooded. Can as an expense is just a little portion of that. It also being a
the partnership still demand another 150 sacks of legitimate expense (dili daw immoral kay agbay-agbay ra
rice? daw to) and used in relation to the business or acquisition of
No, the 150 sacks of rice were intended to be sold. Hence, profits, it can be said that the 50,000 was reasonable and
the ownership already belongs to the partnership and necessary.
consequently, the risk of loss is shouldered by the
partnership.
----o----
Conclusion: To who bears the risk of loss, the key is
to know the ownership. He who owns, bears the loss.

Rules/Application
Who
Things Lost Bears the Reason
Loss
Specific & determinate Partner Partner remains the owner
things which are not
fungible, where only
the use is contributed
Specific & determinate Partnership Partnership is the owner
things the ownership
of which is transferred
to the partnership
Fungible things or Partnership Partnership is the owner
things which cannot since use is impossible
be kept without without the things being
deteriorating even if consumed or impaired
they are contributed
only for the use of the
partnership
Things contributed are Partnership Partnership is the owner;
to be sold otherwise partnership could
not effect the sale
Things contributed are Partnership Partnership is the owner;
appraised in inventory intention was to contribute
to the partnership the price
of the things contributed
with the appraisal in the
inventory

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