claps atp ticklers-partnership

8/4/2019 CLAPS ATP Ticklers-Partnership

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TOPIC NAME# CASE NAME FACTS DOCTRINE50. 1.

51. 2.

52. MarjorieTocao,William Belovs. CA, NenitaAnay

X was admitted becauseof her expertise in theobject of thepartnership. She wasto receive commissions.

The agreement howeverwas not reduced intowriting. The other partydenies existence ofpartnership.

X contributed such expertise to the partnership and hence, underthe law, she was the industrial or managing partner. While it is truethat the receipt of a percentage of net profits constitutes only primafacie evidence that the recipient is a partner in the business, ifthere is other evidence to prove partnership, then partnership

exists. One evidence is that X had a voice in the management ofthe affairs, including selection of people who would constitute theadministrative staff and the sales force. Thus, X being a partner,had the right to demand for a formal accounting of the business andreceive her share in the net profit.

53. 1.

54. Aguila, Jr. vs-CA

Man sells conjugalproperty to apartnership. Later, hefiled a complaint fordeclaration of nullity oftheir sale AGAINSTManaging Partner.

2. An individual partner is not a real-party-in-interest in a case

involving sale between partnership and a 3

rd

person3. The partners cannot be held liable for the obligations of thepartnership unless it is shown that the legal fiction of a differentjuridical personality is being used for fraudulent, unfair, or illegalpurposes

4. It is the partnership, not its officers or agents, which should beimpleaded in any litigation involving property registered in itsname.

Conejos.Laylo.Ampong.Pilapil.Sy.Garcia.Chiongson.


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55. Angeles vs.Secretary of

Justice --(Garsha)

Partner Angeles andPartner Mercado entereda contract of Antichresiscovering 8 parcels ofland but Angeles filed a

case of estafa againstthe Mercado when hediscovered that thecontract of Anti-Chresiswas under the name ofMercado and his wife.Mercado argued that theAngeles spouses don'twant to be identifiedbecause they might bekidnapped by theNPA/questioned by the

BIP/their assets might besequestered.

1. 1. The lack of public instrument indicating partnership andlack of registration with the SEC does not negate the existence ofpartnership.

2. Failure to register the contract does not affect the liability of

partnership and of partners to 3rd persons.

3. Failure to register does not affect the partnerships juridicalpersonality.

56. Tan vs DelRosario

Several taxpayers filetwo separate special civilactions questioningalleging theunconstitutionality of RA7496 or the SNIT,claiming that it hasstarted taxing generalprofessionalpartnerships.

Section 23 of the National Revenue Code states that the members ofgeneral professional partnerships (which are not business partnerships) areonly taxed in their individual capacity.

57. Mendiola vsCa (Rocky)

A foreign corporationopened a representativeoffice and placed x incharge of it. Agreementstipulated that expenseswere to be funded by allparties as equal partnerswhile the profits andcommission will beshared among them. Theforeign corp denies that

Corporations cannot become a member of a partnership in the absence ofexpress authorization by statute or charter.

This doctrine is based on:1. Mutual agency between the partners, whereby the corporation would bebound by the acts of persons who are not its duly appointed andauthorized agents and officers, would be inconsistent with the policy of thelaw that the corporation shall manage its own affairs separately andexclusively and2. Such an arrangement would improperly allow corporate property tobecome subject to risk not contemplated by the stockholders when they



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they are partners. originally invested in the corporation

58. Ortega, DelCastillo, Jr.,Bacorro vs.CA, SEC,

The partnershipagreement in this casedoes not provide for aspecified period orundertaking. The"DURATION" clausesimply states: Thepartnership shallcontinue so long asmutually satisfactory andupon the death or legalincapacity of one of the

partners, shall becontinued by thesurviving partners."

Relevant issue is whattype of partnership isinvolved in here

Based on the Duration Clause, the partnership is one at will.The birth and life of a partnership at will is predicated on the mutual desireand consent of the partners. Verily, any one of the partners may, at hissole pleasure, dictate a dissolution of the partnership at will. He must,however, act in good faith, not that the attendance of bad faith canprevent the dissolution of the partnership but that it can result in a liabilityfor damages.BUT HERE > Neither would the presence of a period for its specific durationor the statement of a particular purpose for its creation prevent thedissolution of any partnership by an act or will of a partner.

59. Lim Tanchu,etc. vs. TanPut -- (Garsha

Po Chuan established apartnership with LimTanchu, etc. Po Chuan'smistress, Tan Put (thirdperson), sold her

drugstore for P 125, 000which was used to investin the partnership. WhenPo Chuan died, the thirdperson-mistress Tan Putdemanded foraccounting and moneyfrom the partners. Shealso alleged that theother partners

1.The remaining partners have no obligation to account to anyone for suchacquisitions (long after the partnership had been automatically dissolvedas a result of the death of one of the partners) in the absence of a clearproof that they had violated the trust of the deceased partner during theexistence of the partnership.

2. There must be proof that the remaining partners have extracted moneyfor the partnership in a fraudulent and illegal manner.



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misappropriated thepartnership funds.

60. 5.

61. Pang Lim andGalvez vs- LoSeng

Former partner, whobought the land leasedto his partnership firm,wants to kick out thesaid firm from theproperty.

1. one partner cannot, to the detriment of another, apply exclusivelyto his own benefit the results of the knowledge and informationgained in the character of partner

2. if a person, having no title to land, conveys the same to another bysome one or another of the recognized modes of conveyance atcommon law, any title afterwards acquired by the vendor will passto the purchaser; and the vendor is estopped as against such

purchaser from asserting such after-acquired title3. Topic on Constructive Trust:

Former partner cannot take advantage of his acquisition of legaltitle of the property, to the detriment of his partner; such is abreach of his fiduciary duty. The court entitles the wrongfully-deprived partner of a remedy of a constructive trust.

62. 4.63. Liwanag vs CA Agent of a cigarette

retail business actsbeyond authority andtries to pass herself offas an industrial partnerin order to avoid beingconvicted of estafa.

Even assuming that a contract of partnership was entered into, the Courthas ruled that when property has been received by a partner for a specificpurpose and he later misappropriated it, he is guilty of estafa.

64. Evangelista vsAbad Santos(Rocky)

A judge was a partner ofa partnership whorendered services to it.Her fellow partners claimthat she was not anindustrial partnerbecause she wasworking as a judge who

Although she was a judge, she rendered services for the partners withoutwhich they would not have had the well organized and operating businessthey have today. The law does not specify the kind of industry that apartner may thus contribute, thus the services may legitimately beconsidered as her contribution to the common fund. She is a judge and itcannot be said her profession is a business the interferes with thepartnership.



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could not have renderedher full time and industryto the partnership. And ifshe was an industrialpartnership, her position

as a judge was contraryto the business of thepartnership.

65. Moran, Jr. vsCA

Partners contributedmoney to partnership,which was supposed toprint posters for the Con-Con. Partner filed forrecovery of unrealizedprofits 1st project andreturn of investment for2nd project (which failed)

1st Project:

1. The grant of compensatory damages for unrealized profit isallowed if there is sufficient evidence to prove that theventure is profitable and the amount granted is notspeculative

2nd Project2. There are risks in any business venture and the failure of the

undertaking cannot entirely be blamed on the managing partneralone, specifically of the latter exercised his best business

judgment66. Pioneer

Insurance &SuretyCorporationvs. CA, BorderMachinery &HeavyEquipment,Inc.,(Bormaheco),Maglana, and

Limand

X induced respondentsinto giving himmoney/property whichhe said would beconsidered asrespondents lawfulcontribution andparticipation in Xsproposed corporation.The Corporation was notformed. X suffered losses

(he bought things for thealleged corporation thathe wanted to form,secured by mortgage,then later foreclosed). Xsaid the respondentsshould share the loss.

It is ordinarily held that persons who attempt, but fail, to form acorporation and who carry on business under the corporate name occupythe position of partners interse (among themselves).However, such a relation does not necessarily exist, for ordinarily personscannot be made to assume the relation of partners, as betweenthemselves, when their purpose is that no partnership shall exist.Since there was no intention here on the part of X to form a corporation(because he just defrauded the respondents), no de facto partnership wascreated among the parties which would entitle Lim to a reimbursement ofthe supposed losses of the proposed corporation.

67. Soncuya vsDe Luna

Partner claims damagesfor losses withoutdissolving the

For a partner to be able to claim damages from another partner whomanages the general partnership, a previous liquidation of the partnershipis necessary.



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partnership.

68. Martinez vsOng Pong Co~

Partner A contributedcapital for Partners B andC to invest in sari-saristore. Years later, A filed

complaint for accountingor return of investmentagainst B and C.

1. Agents have the duty of:a. rendering account of their transactions to the principal; and

b. paying the principal everything they may have received byvirtue of the mandatum (Art. 1695 & 1720,CC)

2. Failure to do said duties obliges them to refund the money thatthey have received for the purpose of establishing saidstore(object of transaction)

69. Agustin vs.Inocencio (Garsha)

Agustin and Inocencioformed a partnership.Managing partnerAgustin and Inocencioborrowed money fromthe latter's wife. Thismoney was used tocomplete the cascoes.Inocencio borrowed

money (without theconsent of the otherpartners) which wasnecessary for thecompletion of the casco.Even if he failed to notifythe partners about thistransaction, he asked hispartners to examine thebooks but they omittedto do so.

1. On the adjustment of the accounts of a partnership, the managingpartner may be allowed to borrow or advance funds which arenecessary for the completion of the work within the scope of thebusiness and expressly provided for by the agreement of thepartners.

2. Even if there was no affirmative consent of the partners but the actof borrowing is within the power of Respondent Inocencio as amanaging partner, the work done in the casco made all theassociates liable

3. It is the responsibility of the firm to answer to each partner forobligations he may have entered into in good faith in the interest ofthe partnership as well as risks in consequence of its management.

4. Debts incurred by the manager for the firms interest, impliedlyacquiesced in by the others, must be shouldered by the firm.

70.

71. In re Sycip(NOTE: De Leonsays this casehas been overruled. I dontknow if papayag siCaraan)

A partner died and theremaining partners wishto keep the deceasedpartners name in theirlaw firms name.

A partnership for the practice of law cannot be likened to partnershipsformed by other professionals for business.

Primary characteristics which distinguish the legal profession frombusiness are:

1.A duty of public service, of which the emolument is a byproduct, and inwhich one may attain the highest eminence without making much money.

2.A relation as an "officer of court" to the administration of justice involving



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thorough sincerity, integrity, and reliability.

3.A relation to clients in the highest degree fiduciary.

4.A relation to colleagues at the bar characterized by candor, fairness, and

unwillingness to resort to current business methods of advertising andencroachment on their practice, or dealing directly with their clients.

72.73. E. M. Bachrach

vs."LaProtectora", etal.

X, a managing partnerpurchased objects for thebusiness of thepartnership. Thistransaction was securedby chattel mortgage.Prior to the purchase, theother partners executeda document saying that

they grant X fullauthority to purchase theobjects. The objects werelater foreclosed.

The other members are liable like X. Their liability does not come from thedocument they executed but from the fact that they are members of thecivil partnership and as such are liable for its debts it comes from thegeneral principles underlying partnership liability.

74. Goquiolay vsSycip

General partner tries todeny his approval of anheirs promotion togeneral from limited topartner.

If a general manager allows or tolerates a limited partner to manage thebusiness, it turns the latter into a general manager.

75. Magdusa vs-Albaran

Industrial partners filedcomplaint againstmanaging partner for

return of their shares,based on a separatecomputation prepared bythe latter

Topic is on when demand for return of investment may be made

1. A partner's share cannot be returned without first dissolving andliquidating the partnership. This because:

return is dependent on the discharge of the creditors,whose claims enjoy preference over those of the partners all members of the partnership are interested in hisassets and business, and are entitled to be heard in thematter of the firm's liquidation and the distribution ofits property

2. Unless a proper accounting and liquidation of thepartnership affairs is first had, the capital shares of theappellees, as retiring partners, cannot be repaid, for the firm'soutside creditors have preference over the assets of the



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enterprise3. One who must return the shares is the Partnership, not the partner

76. Island Sales,Inc. vs UnitedPioneers

GeneralConstructionCompany, et.al (Garsha)

A general partnership,United Pioneers, boughta motor vehicle from

creditor Island Sales. Butthe general partnershipfailed to pay for theinstallment which is whythe seller sued thepartnership for theunpaid balance. CreditorIsland Sales dismissedthe complaint againstone of five generalpartners.

1. Condonation by the creditor of the share in partnership debt ofone partner does NOT increase pro rata liability of other partners.

2.All partners including industrial ones, shall be liable pro rata withall their property and after all the partnership assets have beenexhausted, for the contracts which may be entered into in the nameand for the account of the partnership, under its signature and by aperson authorized to act for the partnership. However, any partnermay enter into a separate obligation to perform a partnershipcontract. (Art. 1816 of CC)

3. Given that there are 5 general partners and one of the 5 of themwas condoned by the creditor Island Sales, each of the four generalpartners is liable to pay for 1/5 of the general partnership debt.

77. Emance vs Ca,

Estate ofVicenteTabanao(Rocky)

A partnership dissolved.

The living partnerrefused to give anaccounting to the heirsof the deceased partnerand to convey the shareof this deceasedpartners shares. Sincenone of the heirs weremade to be theadministrator of theestate they cannot sue.

The heirs are in their own right the successors of the deceased partner.

From the very moment he died, his rights to the partnership weretransmitted to them through operation of law called succession. It does notrequire that one of them be the administrator of the estate.

78. Fue Leung vs

IAC

Chinese businessman

tries to deny hispartnership with anotherChinese businessman,then tries to deny thelatters rights to accountfor the partnershipprofits.

Art 1842 states that a partner has the right to account for his interests in

the winding up or dissolution of the partnership.This is applicable in this case where a dissolution must be ordered by thecourt due to the bickering between the former partners.

79.80 Ortega, Del

Castillo, Jr., The partnershipagreement in this case

The partnership is one at will, and it was dissolved when X resigned.Verily, any one of the partners may, at his sole pleasure, dictate dissolution



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Bacorro vs.CA, SEC,

does not provide for aspecified period orundertaking. The"DURATION" clausesimply states: The

partnership shallcontinue so long asmutually satisfactory andupon the death or legalincapacity of one of thepartners, shall becontinued by thesurviving partners."X, a partner, resignedfrom the partnership.

Issue was whether his

resignation dissolved thepartnership.

of the partnership at will. He must, however, act in good faith, not that theattendance of bad faith can prevent the dissolution of the partnership butthat it can result in a liability for damages.The dissolution of a partnership is the change in the relation of the partiescaused by any partner ceasing to be associated in the carrying on, as

might be distinguished from the winding up of, the business.Upon its dissolution, the partnership continues and its legal personality isretained until the complete winding up of its business culminating in itstermination.The liquidation of the assets of the partnership following its dissolution isgoverned by various provisions of the Civil Code; however, an agreementof the partners, like any other contract, is binding among them.

Par 8 "Amendment to Articles of Partnership" (of the subject firm) used theterm "retirement" which must be understood in a generic sense to meanthe dissociation by a partner, inclusive of resignation or withdrawal, fromthe partnership that thereby dissolves it.

8182. Primelink

Properties andDevelopmentCorp (PPDC) vs- LazatinMagat

Request for rescission ofJoint Venture Agreementon establishment ofsubdivision was grantedby court. Possession ofLand and Improvementgiven to Capital Partners;this was questioned bythe Industrial partner

who introduced theimprovements therein.

1. The dissolution will not immediately terminate the partnership; itwill continue until the winding up of partnership affairs iscompleted

2. Unless otherwise agreed, the partners who have notwrongfully dissolved the partnership or the legalrepresentative of the last surviving partner, not insolvent, has theright to wind up the partnership affairs, provided, however,that any partner, his legal representative or his assignee, uponcause shown, may obtain winding up by the court.

During such time, properties are still owned by partnership;theyre subject to the ff:

a. the right and obligations of the parties, of the creditors andof 3rd parties

b. the settlement of accounts between the parties under Art1839

83. 3.

84. 4.85. Singson vs A chattel mortgage over The chattel mortgage is invalid because the creditors were prejudiced in



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IsabelaSawmill(Rocky)

partnership property wasmade in favor of apartner (as a form of acompromise because ofan internal dispute) who

decided to quit thepartnership. This partnerbought the property fromthe public auctionwithout notifying thecreditors of thepartnership that she wasno longer a partner.

their rights by the execution of the chattel mortgage over the properties ofthe partnership. It does not appear that the withdrawal of the partner fromthe partnership was published in the newspapers. The creditors and thepublic in general had a right to expect that whatever, credit they extendedthe other partners under the same partnership title could be enforced

against the properties of said partnership.

86. Sunga-Chan vs.CA (Garsha)

Chua and Jacinto Sungaformed a partnership toengage in the marketingof liquefied petroleum

gas ("Shellite"). When Jacinto died, his wifeSunga and daughtercontinued the businesswithout partner Chua'sconsent. Chuademanded foraccounting but the wifeand daughter of thedeceased partnerrefused

1.The complaint of Chua for winding up of partnership affairs, accounting,appraisal, and recovery of shares and damages is a suit to enforce aSOLIDARY or joint and several obligations on the part of petitioners.

2.As it were, the continuance of the business and management of Shelliteby petitioners against the will of Chua gave rise to a solidary obligation, theacts complained of not being severable in nature.

3. There is a solidary liability imposed because of the IMPOSSIBLITY toimpose how much of the partnership assets or profits weremisappropriated by each petitioner. In this case, the petitioners obligationto pay DAMAGES, attorneys fees and litigation fees are also solidary innature because they petitioners were in bad faith.


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