Partnerships Flashcards

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1
Q

Partnership: General Points

A

Partnership Formation and Relationships

  • -Formation
  • -Relationships of partner with partnership and between partners
  • -Partnership/Partners’ relationships with 3rd Parties

Partnership Changes and Termination

  • -Conversion
  • -Merger
  • -Termination of Partnership

Other Partnership Entities

  • -Limited Liability Partnerships
  • -Limited Partnerships
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2
Q

Formation of Partnership:

Partnership Requirements

A

–Intent: need 2 or more people/entities that intent to carry on a for-profit business as co-owners: DON’T need specific intent to form partnership

–Partnership Agreement: Need agreement to conduct for-profit business as co-owners. Can be written, oral, or implied by conduct.

–Statute of Frauds: written k not necessary to form P but contract that can’t be performed in under a year must be in writing to satisfy SoF

–Extensive Activity: If Ct determining whether P exists, will look to see how much work they’ve put in towards the partnership’s business goals

  • -Profit-Sharing Test:
  • **Rule: if there’s profit sharing assume it’s a P
  • **Exceptions: Unless profit sharing re: debt payments, interest or loan charges, rent, wages, goodwill payments from the sale of business, & annuities/health/retirement benefits
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3
Q

Formation of Partnership:

Partner by Estoppel

A

Arises when: 1. No P but person treated as partner OR 2. P exists, but non-partner treated as partner

  • -Elements: a person can be treated as a purported partner/partner by estoppel if:
    1. Representation (oral/written/implied) that person is a partner in the P, &
    2. Person consents to representation, &
    3. 3rd P reasonably relied
    4. 3rd P suffered dmgs as result
  • -being named as partner not enough, but can’t deny partner-status if you claim that you didn’t know but rep was public.
  • -purported partner is agent of the person making rep
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4
Q

Formation:

Nature of Partnership

A
  • -P is separate legal entity
  • -Partners are personally liable for P’s obligations
  • -If written PA, it controls
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5
Q

Internal affairs of P:

Agents & Duties

A

–Partners are agents of P (can commit to ks, etc)

–Partners owe: Duty of Loyalty (can’t compete); Duty of Care (can’t be negligent); Duty of Good Faith and Fair Dealing. Duties cease once you finish winding up or disassociate

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6
Q

Internal Affairs of P:

Profits & Losses; Partner Accounts; Distributions

A

Profits and Losses: if PA silent equal Ps and Ls. If PA says Ps, Ls shared like Ps

Partner Acct: contains partner’s contributions to P and share of profits (minus distributions, losses, liabilities

Distributions: Partners cant demand profit contributions BUT entitled to have acct credited with share of profits

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7
Q

Internal Affairs of P:

Partnership Interest

A

Personal Prop Interest: partner’s right to share in losses/profits and to distributions

Transfer of Interests to 3rd P:

  • -Rule: can transfer all or part of P interest (unless restriction in PA).
  • -Transferee doesnt have right to manage or conduct P business, looks at records, etc. Just has right to receive distributions, etc.
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8
Q

Internal Affairs of P:

Prop Ownership of P;
Use of P’s property

A

Ownership
–P’s prop (purchased by P assets/titled in P’s name) belongs to P not to individ partners

–Intent of partners: if not clear , look to intent of Ps.

Use of P prop: partner cant derive personal benefit from using P prop (must reimburse P if do so)

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9
Q

Internal Affairs of P:

New Partner;
Management Rights;
Repayment;

A

New Partner: must get consent of all partners

Management Rights: Partners have equal rights to manage. Need maj vote for ordinary business decisions; need unan consent for extraordinary/revisions to PA

Repayment: No rights to this except compensation for winding up business

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10
Q

Internal Affairs of P:

Reimbursement and Indemnification;
Access to Records;
Lawsuits

A

Reimbursement and Indemnification: P must– reimburse partners for loans they got for P & indemnify partners for personal liabilities

Access to Records: P has to let partners and agents access P records

Lawsuits: P vs. partner for breaching PA or for violating duty. Partner vs. P/partner to enforce partner’s rights

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11
Q

Internal Affairs of P:

Dissociation–cause, wrongful, effect

A

Events causing dissociation: Partner leaves or is expelled by unan vote; Partner dies/incapacitated/goes bankrupt

Wrongful Dissociation: partner is liable to P and other partners for dmgs caused by wrongful dissociation

  • -P (time/goal) is unlimited: dissociation only wrongful if it violates PA
  • -P (time/goal) is specific: dissociation wrongful if before expiration: partner withdraws, is expelled by ct order, debtor in bankruptcy; not an individual, trust, or estate and parter willfully dissolved or terminated.

Effect of dissociation:

  • -can’t participate in management or conduct P business
  • -Duty not to compete ends, Duty of loyalty and care term with respect to post-dissociation events
  • -ongoing P has to buy out partner’s P interest,
  • -P has to indemnify partner against all P liabilities
  • -Dissociated partner liable for P obligations incurred before dissociation
  • -if 3rd p rsbly thinks P isn’t dissociated, then partner can still bind P to stuff, only for 2 yrs after dissocation.
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12
Q

Relationships to 3rd Ps:

Power to Bind P

A

Partner is agent of P, can bind P to ks when he has actual or apparent authority

  • -Actual: express or implied
  • -Apparent Authority: performs unauthorized act in ordinary couse of P business, and 3rd p didn’t know partner wasn’t authorized.

–Sometimes partner can transfer P prop

–generally, if partner knows something or has notice, assume P knows/has notice.

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13
Q

Relationship to 3rd Ps:

Partner’s tortious Acts

A

P liable for partner’s tortious acts if done in ordinary course of P business or with authority

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14
Q

Relationship to 3rd Ps:

Liability to 3rd Ps

A

P obligation: P liable, all partners jointly & severally liable

Effect of Judgment: Judgment against P satisfied first from P assets, then from partner personal assets

Crime: P assets can be used to pay for crime P committed.

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15
Q

Partnership Changes and Termination:

Conversion

A

Can convert P to LP or LP to P

P to LP: consent of all partners; P has to file articles of conversion with state; former general partners are still liable for pre-conversion obligations

LP to P: consent of all limited partners; LP cancels LP certificate; lim partners liable for prechange LP obligations, and are liable as general managers for postchange P obligations

Change doesn’t affect P assets or legal proceedings

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16
Q

Partnership Changes and Termination:

Merger

A

Plan: need plan that names the original and surviving entities; what type of entity it will now be; terms and conditions, new address, etc.

Approval: all general partners have to approve. As many lim partners have to approve (as set by PA or by state)

Effect: all other entities die, all assets and obligations stay with remaining entity.

17
Q

Partnership Changes and Termination:

Term of Partnership

A
  1. Events leading to dissolution:
    - -P at will: any partner leaves
    - -P for term/undertaking: term expires or all partners agree to dissolve or a p leaves and at least 50% of remaining partners agree to dissolve within 90 days
    - -Any P: Judge tells it to end, Something in PA happens that tells it to end, or unlawful for P to continue
  2. Post Dissolution and Pre-Windup: before wind up ends, P can carry on business as if dissolution hasn’t happened.
  3. Winding up:
    - -person who is winding up can get rid or/transfer P prop and liabilities. Can split P assets amongst partners
    - -Creditors have priority over partners re P assets
    - - statement of dissolution: gives 3rd parties notice, filed within 90 days of dissolution
18
Q

Partnership types (very generally)

A

can have Ps for a limited time and/or purpose, or P that is unlimited re time/purpose

19
Q

Other Partnership Entities:

LLP

A

Limited Liability Partnerships:

  • -Must file with State
  • -LLP partner not personally liable for LLP obligation but are liable for own personal misconduct
20
Q

Other Partnership Entities:

LP

A

Rule: needs to be formed by at least 1 gen partner and 1 lim partner

  • -lim partner only liable for P debts up to her capital contribution
  • -must file LP certificate with state (info about partnership; names of gen partners, signed by gen partner)–in effect when filed. Substantial compliance okay.

Lim Partner:

  • -can only be added by unan written consent of partners after creation
  • -not personally liable unless also gen partner or participates in control of LP

Gen Partner:

  • -need written consent of all partners to be added after creation
  • -Personally liable for LP debts
  • -Can withdraw after giving written notice

Contributions: partners can contribute $$, svcs, prop, etc

Profits & Losses: shared by how dictated in writing. if not, shared by percentage of cap contributions
Distributions: by writing. if not writing, by how Ps and Ls shared.

Term:

  • -specified event, withdrawal of a gen partner, written consent of all partners, judicial determination
  • -Gen partners wind up but lim partner can if no gen partners. Creditors first, then partners

lim partner has right to bring derivative axn on behalf of LP