Obligations and actions amongst partners. Chapter 31

• Published date: 01 February 2006
• DOI: 10.10520/EJC74053
• Author: H.A. Wessels
• Date: 01 February 2006
• Pages: 166-183

Chapter 31

Obligations and actions amongst partners

Summary

1. Both civil and natural obligations may emanate from a contract

of partnership.

2. The action based on partnership and the action for the division

of property jointly owned is available to partners.

3. Where they overlap, the one excludes the other.

4. They have much in common.

5. And in certain instances these actions are excessive.

6. The action based on partnership is allowed to attain various ends.

7. The action based on negotiorum gestio is sometimes allowed be-

tween partners.

8. Even an action based on the facts.

9. An action using precise words is available.

10. The interdict uti possidetis.

11. The Lex Flavia.

12. The Lex Aquilia.

13. The action available when theft has been committed.

14. The actions based on partnership, and for the division of joint

property are actions involving good faith.

15.These actions are actively and passively transmissible to the heirs

where the partnership is dissolved by death.

16. Sometimes an utilis actio is granted in lieu of the action based

on partnership.

17. The way in which a summary should be formulated in these

actions.

18. Several partnerships between the same people will result in a

plurality of obligations and actions.

19. A lawsuit between partners should be completed before one

and the same judge even if there is one who is a cleric.

20. Where several partners institute an action against one of their

number they should appoint a single attorney.

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21. A partner sued by another partner is not condemned for the

entire amount but to the extent of that he is capable of performing.

22. And to the extent of his share in the partnership.

23. But that point of view is rejected.

24. Does a partner enjoy preference over an extraneous person when

instituting an action against his co-partner & no. 25.

26. A partner who acts as the administrator of the partnership should

first be proceeded against.

27. A partner instituting an action against a co-partner must prove

that what he did was converted to the benefit of the partnership as

a whole. This applies to a particular but not to a universal partnership.

28. A partner has an action against his co-partner for things done

in the interests of the partnership, even if he performed those tasks

in his personal capacity.

29. The fact that tasks were performed in the interests of the partner-

ship may be established by conjecture.

30. It is presumed that wool was bought to further the interests of the

partnership if it was used to fabricate garments but not otherwise.

The same applies to animals bought for slaughter.

31. Once the integrity of a partner has been established it is presumed

that he acted in furtherance of the interests of the partnership.

32. If a partner refuses to produce an account book which can show

that property bought from a co-partner were converted to the use

of the partnership it is presumed that the property as in fact converted

to that use.

33. A partner must produce a book of accounts even if he is the

defendant.

34. An object bought in the communal dwelling of the partners is pre-

sumed to have been bought to further the interests of the partnership.

35. A lessee cannot be condemned to pay more than he is able to,

but this statement is not correct.

36. A partner loses the privilege not to be condemned for more than

he is able to pay if he acts deliberately.

37. He does not lose this privilege where he acts negligently.

38. He does not even lose this privilege where he is deliberately in

an omission but only where he deliberately commits something. This

is the view of some people & no. 41.

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