Partnership

TOPIC 3

PARTNERSHIP

Definition

A partnership is the relationship which exists between persons carrying on a business in common with a view to profit. It involves an agreement between two or more parties to enter into a legally binding relationship and is essentially contractual in nature. According to Tindal CJ in Green v Beesley (1835) 2 Bing N C 108 at 112, ‘I have always understood the definition of partnership to be a mutual participation ...’, yet the participants do not create a legal entity when they create a partnership. James LJ in Smith v Anderson (1880) 15 Ch D 247 at 273 saw the concept in the following way:

An ordinary partnership is a partnership composed of definite individuals bound together by contract between themselves to continue combined for some joint object, either during pleasure or during a limited time, and is essentially composed of the persons originally entering into the contract with one another.

Despite these definitions, there are limitations on the number of persons that can form a single partnership. See Corporations Act A partnership will have a name (called a firm name) and this is registered under one of the state Business Names Acts.

Partnership law derives both from case law and from statute law. The relevant legislation is to be found in the Partnership Acts 1892 (NSW). This area of the law has been described as a special type of agency. The main reason for this is that partners, when acting in the course of the partnership business, are acting as agents for one another: see Lang v James Morrison & Co Ltd (1911) 13 CLR 1 at 11.

Determining when a partnership exists

Necessary elements

Section 1 of the Partnership Act provides that three elements must be satisfied in order to establish the existence of a partnership. These elements are:

( the carrying on of a business;

( in common;

( with a view to profit.

If one of these elements is missing, the relationship is not one of...