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- Volume 2006, Issue 40, 2006
Transactions of the Centre for Business Law - Volume 2006, Issue 40, 2006
Volume 2006, Issue 40, 2006
Author Johan HenningSource: Transactions of the Centre for Business Law 2006, pp V –VI (2006)More Less
Extracted from text ... FOREWORD In the marked absence of a Partnership Act, and apart from various enactments dealing on an ad hoc basis with diverse matters such as insolvency, the law of partnership in South Africa consists of South African common-law, which is derived mainly from Roman-Dutch law. English law of partnership it is not binding and should be approached with caution. In fact, neither the English Partnership Act of 1890 nor the Limited Partnership Act of 1907 has ever been adopted either in whole or in part in any South African jurisdiction. Since the early 1970s Appellate Division decisions on partnership law ..
Source: Transactions of the Centre for Business Law 2006, pp 1 –15 (2006)More Less
In Van Staden v Venter verwys waarnemende Appèlregter Harms, soos hy toe was, pertinent na "Hector Felicius Tractatus de Societate" as gemeenregtelike gesag vir die standpunt dat die actio pro socio est perpetua en dat verjaring nie begin loop alvorens 'n vennootskap onbind nie. Ter stawing van die gevolgtrekking dat hierdie bron die ius commune weergee word daarop gewys dat die derde uitgawe van die werk in 1666 in Gorkum, Suid-Nederland gepubliseer is en dat "die skrywer na Romeins-Hollandse skrywers soos Groenewegen verwys en dat Voet op hom staatmaak".
The uncovering of a neglected source of the ius societatum and the validity of universal partnerships in the South African lawSource: Transactions of the Centre for Business Law 2006, pp 16 –38 (2006)More Less
Extracted from text ... B. The uncovering of a neglected source of the ius societatum and the validity of universal partnerships in the South African law* 1. Introduction The long relationship between the Institute of Advanced Legal Studies and South African legal researchers, particularly those enrolled for advanced degrees, has become an integral part of the South African legal scene. Indeed, even a cursory glance at the acknowledgements in doctoral theses, the list of South African visitors to and visiting fellows at the Institute, papers given by South African participants and at the Institute's conferences, workshops and seminars, as well as the directory of ..
Source: Transactions of the Centre for Business Law 2006, pp 47 –49 (2006)More Less
Extracted from text ... Chapter 1 What is a partnership? Summary 1. The definition to be put forward. 2. Various definitions of partnership. 3. The definition shows the substance of the matter. 4. The definition of partnership according to the author. 5. Obligation is the genus, contract is a species thereof, the genus of partnership. 6. Partnership is created by consent, tacitly or expressly & no. 7. 8. Property or services or work can be contributed in a partnership. 9. How should the entering into a partnership, without the transfer of property, be understood. 10. Of necessity a certain community is required to ..
Source: Transactions of the Centre for Business Law 2006, pp 50 –64 (2006)More Less
To achieve any object four causes should be considered, efficient, material, formal and final. Two are said to happen, namely efficient and final and two are said to exist namely material and formal (Bald. in l. dictam. legem. sub n. 2 C. decondict. ob turp. caus. & in l. patre furioso. in l. addit. nu. 5. ff. de bis qui sunt sui vel alien. juris. Abb. In prooem. decret. col. pen.). An efficient cause is one which completes the task as far as the material are concerned (Abb. in d.prooem. decret. col. si. Bald. in rub. ff. de just. & jure. n. 18. & in d. l. dictam legem. n. 11.). In partnership the efficient cause is man as in all other contracts. Decianus, my teacher stated (in cons. 64 n. 13. lib. 3.) eloquently that two causes should be considered, proximate and remote. A proximate cause is where one enters into a contract by himself, a remote cause is where he does so through a messenger or an agent (juxta text. in l. societatem coire. ff. pro socio & Dec. in cons. 97 n. 36 lib. 2 as declared by Abb. in d. prooem. decretal. col. fin. & after him Maranta in sua praet. part. 1. sub n. 21). A material cause is one from which something originates. It is stated (Arist. lib. 2. Ethicor. Glossa & Bart. in l. si convenerit. ff. de pignor. Abb. in d. prooem. decret. col. sinal. Bald. in d. l. dictam legem. n. 9.) that the nature of an object precedes its form and that which has the propensity to form (Bald. in prooem. ff. in 2. lect. & ibi late Cagnolus.). The material cause in partnership is consent, because first of all consent is required from the contracting parties (l. consensu. ff. de act. & obligat. ff.1 Instit. de oblig. ex cons. Decian. d. cons. 64 n. 13. lib. 3). It is stated that consent is material and the consent of every single party to the contract should be considered separately before they are joined in the contract. The property can also be material to the contract of partnership because the consent of the parties concerns the property brought into the partnership and without property there can be no partnership (Bald. in l. 2. C. decontrah. emptio. & in l. 1 nu. 1. C pro soc. & in cons. 452. sub n. 2 lib. 3. Paris. cons. 82. num. 2 lib. 1) were to those who give money is not due but that the money is meant for the hands of another (Castr. in d. Tract. de societ: office. c. 5.).
Source: Transactions of the Centre for Business Law 2006, pp 65 –78 (2006)More Less
Extracted from text ... Chapter 10 On the instrumental cause Summary 1. Consent is made known by words and by conduct. 2. There are two forms of partnership tacit and express. 3. An express partnership is entered into verbally. 4. Even if not everything but some prerequisites of a partnership have been mentioned. 5. Even if reference is made to that which have been stated in other documents. 6.The words used to bring about a partnership involving all the assets. 7. Can universal matters be expressed by joining several words together. 8. Superfluity of words are avoided as a cautionary matter. 9.Words of ..
Source: Transactions of the Centre for Business Law 2006, pp 79 –89 (2006)More Less
We have looked at the ways in which a universal partnership is entered into tacitly and we must now look at the other partnerships and the way in which they can be entered into tacitly. That which has been said above about the partnership involving an assets and the ways in which it can be tacitly concluded must also be said of all the other partnerships namely that they can be tacitly concluded by the performance of an act of partnership (ex. l.Paulus. ff. rem rat hab.). And even if a community is possible without a partnership (leg. ut sit. ff. pro soc.) nevertheless there can be no partnership without a community (l. 1. in fine. & l. si id quod. in vers. caeterum. ff. pro soc. & in l. si tibi avae. in fin. ff. de praescrip. verb. Rom. in consilio centesimo sexagesimo octavo, numero tertio. Dd. in l. si pascenda.Codic. de pactis.) and therefore one will have to consider what property was collated, what kind of partnership was entered into, what property is involved and the conduct of the contracting parties will be considered. And those things will be considered as collated and in connection with which a partnership was established which appears from the conduct of the partners and nothing beyond that (l. prima, ss. hoc interdicto. ff. de itine. actuque privat. Baldus in consilio 125. & in consilio 55. libr. 5. Bartolus in consilio 168. sub numero 1. libr. 1. Rom. dict. consilio 168. sub numero 3. Corn. in consilio 9. libr. 1. Petrus de Ubaldis in tractat. de duob. fratrib. part. 3. sub numero 21. Decian. cons. 36. lib. 1.).
Source: Transactions of the Centre for Business Law 2006, pp 90 –101 (2006)More Less
Extracted from text ... Chapter 12 The formative cause Summary 1. The end has its origin in the intention and it is the object contemplated. Therefore the formal cause is that which is operative with the end in mind. The shape of a partnership consists sometimes in profit and sometimes in gains. 2. Profit includes everything acquired in whatsoever way and everything else which can be contrived. 3. Profit even includes that which was acquired by one of the partners which cannot be acquired by the other partners. If a father wishes to do so he may cause his illegitimate child to enter ..
Source: Transactions of the Centre for Business Law 2006, pp 102 –104 (2006)More Less
The partnership directed at gain has its own peculiar form as I have said above (in c. superiori), and now we must look at gain and the partnership directed at gain. The term gain as it is found in the partnership directed at gain does not include assets acquired by a lucrative title (l. nec. adjecit. cum 2. seqq. ff. pro soc. Sagur. ad Bald. in l. si fratres. ss. si inter fratres ff. eod. Gomes. d. lib. 2. resolut. jur. cap. 5. num. 4.). And this is correct to the extent that should one of the partners acquire an object while engaged in business pertaining to the partnership such an acquisition need not be shared for instance if a partner should approach the emperor in connection with partnership affairs and be given something by the emperor, that gift need not be shared with the other partner (l. socium. ss. socius. & ibi Bart. ff. pro soc.Thob. cons. 91. n. 5. & 10.). But a distinction should be drawn and donations should be looked at in two ways. Firstly on account of the partnership that is in contemplation of the partnership an then they must be shared on account of the partnership where the partnership is the remote cause and the donation was made in contemplation of a particular person and in that case it need not be shared (l. aditio hereditatis. ff. de acq. hered. Gl. Bart. & Bald. in d. l. socium. ss. socius. ff. pro soc.). And where doubt exists as to whether the donation was made in contemplation of the partners of the partnership it is presumed to have been made in contemplation of the partners (Bald in l. cum oportet. nu. 3. C. de bon. quae lib. Menoch. in tract. de praesumpt. lib. 3. praes. 26. n. 24. & praes. 27. sub n. 7.).
Source: Transactions of the Centre for Business Law 2006, pp 105 –128 (2006)More Less
Extracted from text ... Chapter 14 Should acquisitions made by partners, be shared immediately, or can it be delayed Summary 1. A community is required in a partnership. 2. If an object acquired by one partner is alienated by him it does not become the property of the other partner and no action is available against a third party even if the alienation involves loss to the partnership. 3. If an object has become common property, it cannot be alienated by the partner unless he does so to the extent of his share therein. 4. An object acquired by one of the partners ..
Source: Transactions of the Centre for Business Law 2006, pp 129 –153 (2006)More Less
Profits cannot be distinguished from capital in a partnership involving all the assets and no distinction is made between greater and lesser contribution by the partners. No one is enriched to a greater extent than the other, everything is jointly owned and shared equally. This was stated in n. 728.
Source: Transactions of the Centre for Business Law 2006, pp 154 –157 (2006)More Less
Extracted from text ... Chapter 26 Expenses and losses incurred without the wilfulness or negligence of a partner Summary 1. All expenses as long as they are not caused by delict or willfulness must be shared. 2. Profits acquired in whatever way from whatever sources are shared in a partnership involving all the assets. 3. Should gambling losses be paid out of the joint estate. 4. Debts incurred while performing a public office should be shared. 5. Medical expenses should be shared. 6. The French sickness is excluded. 7. A captive of the enemy should be able to recover at the expense of the ..
Source: Transactions of the Centre for Business Law 2006, pp 166 –183 (2006)More Less
In the present chapter I shall deal with obligations and actions between the partners themselves whereas in the previous chapter no. 1, I dealt with obligations and actions between partners and extraneous people. As in all other contracts both civil and natural, obligations may emanate from a contract of partnership (l. 2. ff. de action. & obligat. ss. 1. Instit. de obligat. ex consensu, & obligatione oritur actio, juxta text. in l. licet. ss. ca obligatio. ff. de procurat). Two actions may arise. The one is the actio pro socio based on the contract of partnership itself and the other is the actio de communi dividundo for the division of property jointly owned by the partners (l. ut sit. l. pro socio arbit. in fin. l. sed & socius. l. si actum. ff. pro soc. l. 1. & quasi per totum. tit. ff. commun. dividund. Petrus de Ubald. dict. tractat. duobus fratrib. part. 14. in princ).
Source: Transactions of the Centre for Business Law 2006, pp 184 –199 (2006)More Less
In this chapter there is no need to deal with an obligation entered into before the partnership came into existence because such contracts are not attributable to the partnership (Paris. consil. 94. nu. 15. lib. 1). I have shown earlier how after its coming into existence the partnership it may assume responsibility for those debts (cap 9. num. 43). Neither is it necessary to deal with contracts entered into after the dissolution of the partnership because I shall deal with them presently in my discussion of the dissolution of partnerships. In this present chapter I shall deal with contracts entered into with extraneous people during the existence of the partnership and obligations germane to the actual bringing about of the partnership itself. I shall therefore proceed in this order. Firstly, I shall deal with contracts concluded with extraneous people and secondly, I shall deal with obligation and actions emanating from the contract of partnership itself. As far as the first group is concerned, partners entering into contractual relations with extraneous people sometimes become debtors and sometimes become creditors.
Source: Transactions of the Centre for Business Law 2006, pp 200 –212 (2006)More Less
There is no necessity for a partnership to continue in existence forever (Bald. in l. tamdiu. n. 1. C. pro soc), and therefore I must also deal with the dissolution of a partnership. A partnership can be dissolved in various ways, personal, real, a desire to do so and by conduct (l. verum. ss. fin. & ibi Gl. & Dd. ff. pro soc. ss. solvitur. Inst. de societ. Petr. de Ubal. in tract. de duob. fratr. part. 11. in pr.) and therefore I proceed to deal separate and clearly with each one of these. Firstly, a partnership is terminated by the natural or legal death of one of the partners (d. l. verum. ss. si. ff. pro soc. & d. ss. solvitur. Inst. de societ).
Source: Transactions of the Centre for Business Law 2006 (2006)More Less
A partnership is dissolved by civil death in the same way as it is dissolved by natural death (l. verum.ss. fin. ff. pro soc. Petr. de Ubald. in tract. de duob. fratr. part. 11. sub num. 1. Hond. consil. 62. num. 22. lib. 1). An example of this is loss of status both maximal and intermediate with which we dealt in 1 & 2 (in ss. 1. & 2. Inst. de capi. diminut.) and also (in d. l. verum. in fin). A partnership is not dissolved by the lesser type of loss of status like adoption or emancipation so that a partnership will continue even if one of the partners has been adopted or emancipated (l. actione. ss. societas. ff. pro soc.Petr. de Ubald. d. part. 11. sub num. 1). The position is somewhat different where a servant with whom a partnership has been entered into is manumitted or sold by his owner because a partnership is dissolved by the manumission or alienation of one of the partners (l. si id quod. ss. si servus. ff. pro soc. Petr. de Ubald. d. part. 11. num. 1. in fin). The reason for the distinction made between a son in power and a slave is that a son may validly enter into a contract both as a son in power and as an emancipated person, but a slave while still in servitude cannot enter into a valid contract (Gl. in d. l. si id quod. ss. si filius familias. in ver. finitam. ff. pro soc. Menoch. cons. 121. nu. 59. lib. 2).
Source: Transactions of the Centre for Business Law 2006, pp 215 –222 (2006)More Less
Secondly, a partnership is dissolved when the nature of the assets (l. verum. ss. fin. ff. pro soc.) constituting the basis of the partnership is changed e.g. where it is withdrawn from private ownership (Gl. in d. ss. fin. in ver. conditione. per tex. in l. actione. ss. fin. ff. eod.) or where the assets cease to exist because nobody can be a partner in a partnership non-existing property or property incapable of private ownership (in d. l. verum. ss. fi & ibi Gl. & habetur per Gl. in l. si non fuerint. in ver. solus. ff. pro soc. Petr. de Ubald. in tract. de duobus fratr. part. 11. sub nu. 1. Bald. in l. 1. quaest. 6. C. pro socio. Socin. jun. cons. 58. nu. 9. lib. 4). This is said about legacies, fideicommissa and usufructs which are completely or partially destroyed in this way (l. Titiae. ss. fin. ff. de leg. 1. l. 2. & l. quoties. ss. fin. ff. de usufruct. Gabriel. cons. 63. n. 19. lib. 2.). But a partnership is only dissolved by the total destruction of the property which constitutes the basis thereof and not otherwise; therefore if the cow is killed the partnership will continue to exist as far as the calf is concerned (Petr de Ubald. in tract. de duob fratr. part. 8. n. 22.), and if the partnership has been entered into for a period of ten years it is nevertheless dissolved, if the capital constituting the basis of this partnership, is lost (Castra. in tract. de societ. offic. cap. 39. num. 2.) and the partnership cannot be saved by pouring in additional funds (Angel. de Pingl. in tract. de societ. quaestio 14).
Source: Transactions of the Centre for Business Law 2006, pp 223 –232 (2006)More Less
A voluntary dissolution of a partnership may be either express or tacit. Tacit dissolution is defined which reads as follows: "When two partners begin to act separately and each one conducts his own affairs, there can be no doubt that legally the partnership has been dissolved". Just as a partnership may come into existence through associative conduct so it can be terminated by dissolutive conduct and the same rules are applicable to their opposites (Baldus. in consil 452 num. 4. lib. 1. Cephal. consil. 396. num. 7. lib. 3. Menoch. in tractat. de praesumpt. lib. 3. praesum. 60. num. 10. Mascard. conclus. 1310. Joseph. Lud. conclus. 53. fol. 134). This must be understood to apply when all the partners indulge in this dissociative conduct, but if only one partner acts in a dissociative way while the other one is in ignorance and therefore has not given his consent, the partnership is not dissolved (in l. sed. & socius. ss. fin. ff. pro soc. Bald. in l. si patruus. sub num. 1. C. commun. utr. jud. & in d. consil. 452. lib. 3. Petr. de Ubald. in tract. de duobus fratr. part. 11. sub num. 2. Natt. consil. 100. num. 5. lib. 1. Menoch. de praesum. d. praes. 60. sub num. 10).