Aportes hechos por algunos autores sobre PMS en entidades gubernamentales

LIABILITYOFPARTNERSFORPARTNERSHIP CONTRACTS

The partnership is primarily liable for contracts entered into in its name and for its account, under its signature and by a person authorized to act for it. Upon exhaustion of its assets, all partners are liable

pro rata with all their property.

Any partner may enter into a separate obligation to perform a partnership contract [Article 1816].

NATURE OF INDIVIDUAL LIABILITY

The pro-rating should be understood to mean equally or jointly, not proportionally [De Leon (2010), citing Article 1839(4); note, however, that this conclusion does not find textual support in Article

1816].

The fact that a partner has left the country and the payment of his share of the liability cannot be enforced [Co-Pitco v. Yulo (1907)] or his liability is condoned by the creditor [Island Sales v. United

Pioneers (1975)] cannot increase the liability of the

other partners.

The liability is subsidiary or secondary. It only arises upon exhaustion of partnership assets. However, they may be joined as party defendants in the action against the partnership, subject to their right to prior exhaustion of partnership assets [Cia. Maritima v.

Muñoz (1907)].

General rule: The partners are liable pro-rata and subsidiarily, with all their property.

Exceptions:

(1) A third person who transacted with the partnership can hold the partners solidarily liable for the whole obligation if the case falls under

Articles 1822 or 1823 [Muñasque v. CA (1985)].

(2) A person admitted as a partner into an existing partnership is liable for all the obligations of the partnership arising before his admission, except that his liability shall be satisfied only out of

partnership property, unless there is a stipulation

to the contrary.

LIABILITY OF INDUSTRIAL PARTNER

An industrial partner, who is not liable for losses, is not exempt from this liability. However, he can recover the amount he has paid from the capitalist partners, unless there is a stipulation to the contrary. [Cia. Maritima v. Muñoz (1907)].

STIPULATION AGAINST INDIVIDUAL LIABILITY

Any stipulation against this liability is void and does not affect third persons. The stipulation, however, is valid only as among the partners [Article 1817]. LIABILITYOFPARTNERSFORPARTNERSHIP CONTRACTS

ACTS APPARENTLY FOR THE CARRYING ON OF USUAL BUSINESS

General rule: Every partner is an agent of the

partnership for the purpose of its business and any act of a partner which is apparently for the carrying on of the usual business of the partnership binds the latter, including the execution of any instrument in the partnership name [1st par., Article 1818].

Exception: The partnership is not bound when:

(1) The partner has in fact no authority to act; AND (2) The person with whom he deals has knowledge of

such fact.

ACTS NOT APPARENTLY FOR CARRYING ON OF THE USUAL BUSINESS

General rule: Acts of a partner which is not apparently

for carrying on of the usual business does not bind the partnership.

Exception: The partnership is bound if the other

partners authorized him to do the act. ACTS OF STRICT DOMINION

General rule: One or some of the partners have no

authority to do the following acts of strict dominion: (a) Assign the partnership property in trust for

creditors or on the assignee's promise to pay the debts of the partnership;

(b) Dispose of the goodwill of the business;

(c) Do any other act which makes it impossible to carry on the ordinary business of the partnership; (d) Confess a judgment;

(e) Enter into a compromise concerning a partnership claim or liability;

(f) Submit a partnership claim or liability to arbitration;

(g) Renounce a claim of the partnership.

Exception: They may do so if:

(1) Authorized by all the partners; OR

(2) The other partners have abandoned the business. ACTS IN CONTRAVENTION OF RESTRICTION

Any act of a partner in contravention of a restriction on authority does not bind the partnership to persons having knowledge of the restriction [Article

1818].

CONVEYANCEOFREALPROPERTYOF

PARTNERSHIP

TITLE IN THE PARTNERSHIP NAME

Any partner may convey the property in the name of the partnership.

The partnership can recover it, except when:

(1) The act of the partner binds the partnership under 1st par., Article 1818 (i.e., for the carrying on of the usual business of the partnership); or

(2) If not so authorized, the property has been conveyed by the grantee, or a person claiming under him, to a holder for value and without knowledge that the partner exceeded his authority.

TITLE IN THE PARTNERSHIP NAME

A partner, authorized to act under 1st par., Article

1818, may convey, in his own name, the equitable interest of the partnership.

TITLE IN THE NAME OF ONE OR MORE (NOT ALL) OF THE PARTNERS

AND THE RECORD DOES NOT DISCLOSE THE RIGHT OF THE PARTNERSHIP

The partners having title may convey title.

The partnership may recover it if the act does not bind it under 1st par., Article 1818, unless the purchaser or his assignee is:

(1) A holder for value; AND

(2) Without knowledge that the act exceeded authority.

TITLE IN THE NAME OF ONE OR MORE OR ALL THE PARTNERS,

OR IN A THIRD PERSON IN TRUST FOR THE PARTNERSHIP A partner may convey equitable title in the partnership name or in his own name, when the act is authorized under 1st par., Article 1818.

TITLE IN THE NAMES OF ALL THE PARTNERS

The conveyance must be executed by all of them to pass all their rights in the property [Article 1819].

LIABILITYOFPARTNERSHIPFORADMISSIONBY PARTNER

An admission or representation by any partner concerning partnership affairs within the scope of his authority may be used as evidence against the partnership [Article 1820].

LIABILITYOFPARTNERSHIPFORWRONGFUL ACTSOFPARTNER

The partnership is solidarily liable with the partner who causes loss or injury, or incurs any penalty through any wrongful act or omission:

(1) In the ordinary course of the business of the partnership; or

(2) Not in such ordinary course of business, but with the authority of his co-partners [Article 1822]. LIABILITYOFTHEPARTNERSHIPFOR

MISAPPLICATIONOFMONEY

ORPROPERTYRECEIVED

The partnership is liable for losses suffered by a third person whose money or property was:

(1) Received by a partner, acting within the scope of his apparent authority, who also misapplied it; or (2) Received by the partnership, in the course of its

business, but is misapplied by any partner while it is in the custody of the partnership [Article 1823]. LIABILITYOFOTHERPARTNERS

FORWRONGFULACTSORMISAPPLICATION All partners are solidarily liable with the partnership for its liabilities under Articles 1822 and 1823 [Article

1824].

This is without prejudice to the guilty partner being liable to the other partners. However, as far as third persons are concerned, the partnership is answerable.

LIABILITYINCASEOFPARTNERSHIPBY ESTOPPEL

PARTNER BY ESTOPPEL

A person, not a partner, may become a partner by

estoppel, and be liable as a partner, when, by words,

spoken or written, or conduct, he:

(1) Directly represents himself to anyone as a partner in an existing or non-existing partnership; or (2) Indirectly represents himself by consenting to

another representing him as such partner. [Article

1825]

LIABILITY OF PARTNER BY ESTOPPEL

A partner by estoppel is liable:

(1) To any person who extended credit to the partnership, actual or apparent, relying on his representation; and

(2) In case the representation was made publicly, to any person, who extended such credit, whether or not the communication to said creditor was made with the knowledge of the partner.

NATURE OF LIABILITY

He is liable in the following manner:

(1) When there is an existing partnership and all the partners consented to the representation, a partnership liability results, and the partner by

estoppel is liable as though he were a partner;

(2) When there is an existing partnership and not all the partners consented, or when there is no existing partnership and all those represented as partners consented to the representation, he is liable jointly and pro rata with those who consented to the representation;

(3) When there is an existing partnership but none of the partners consented, or when there is no existing partnership and not all of those represented as partners consented to the representation, he is liable separately.

EFFECTS OF ACTS OF PARTNER BY ESTOPPEL

The acts of a partner by estoppel have the following effects:

(1) A person, thus representing himself as a partner of other persons, becomes an agent of the latter, in the same manner as though he were a partner in fact, with respect to persons who rely upon the representation.

(2) When all the members of the existing partnership consent to the representation, a partnership act or obligation results.

(3) In all other cases, only a joint act or obligation results. [Article 1825]

No real partnership is created by estoppel. It is only with respect to third persons that partnership by estoppel is recognized.

ESTABLISHING LIABILITY

The basic elements in connection with establishment of liability as a partner if based on the doctrine of estoppel must encompass:

(1) Proof by plaintiff that he was individually aware of the defendant's representations as to his being a partner or that such representations were made by others and not denied or refuted by the defendant;

(2) Reliance on such representations by the plaintiff; and

(3) Lack of any denial or refutation of the statements by the defendant; such denial need not precede plaintiff's acting therein if the denial was forthcoming promptly upon hearing of the representations, and if, by prudence and diligence

the plaintiff might have learned of the truth or untruth of the representations.

Persons who knowingly assume to act as a corporation without authority to do so are liable as general partners for all debts, liabilities and damages incurred. [Section 21, Corporation Code] A partnership de facto is created.

LIABILITYOFINCOMINGPARTNER

A person admitted as a partner is liable as the other partners for obligations subsequent to his admission. He is also liable for obligations incurred before his admission, but will be satisfied only out of the partnership property, unless otherwise stipulated. (Article 1826)

Ratio:

(1) The new partner partakes of the benefits of the partnership property and an already established business.

(2) He has every means of obtaining full knowledge of the debts of the partnership and remedies that amply protect his interest [De Leon (2010)]. However, an incoming partner may fully assume the obligations of a retiring partner.

NOTICETOORKNOWLEDGEOFTHE PARTNERSHIP

The following operate as notice to or knowledge of the partnership:

(1) Notice to any partner of any matter relating to partnership affairs;

(2) Knowledge of the partner acting in the particular matter acquired while a partner;

(3) Knowledge of the partner acting in the particular matter then present to his mind; and

(4) Knowledge of any other partner who reasonably could and should have communicated it to the acting partner.

These do not apply in case of fraud on the partnership committed by or with the consent of the partner [Article 1821].

PREFERENCEOFPARTNERSHIPCREDITORS

Partnership creditors are preferred over personal creditors of the partners with respect to partnership property.

However, personal creditors may ask the attachment and public sale of the share of the partner debtor in the partnership assets. [Article 1827]

Ratio: The partnership, as a legal entity distinct from

its members, should apply its property to the payment of its debts in preference to the claim of any partner or his individual creditors.

Dissolution and winding up