On obligations and actions. Chapter 30

• Date: 01 February 2006
• Pages: 184-199
• Published date: 01 February 2006
• Author: H.A. Wessels
• DOI: 10.10520/EJC74052

Chapter 30

On obligations and actions

Summary

1. Obligations incurred prior to the existence of a partnership cannot

be attributed to the partnership.

2. A partner contracting in his personal capacity is liable personally.

3. This applies even where he enters into a contract in the best int-

erest of the partnership.

4. The partner who has not himself contracted is indirectly liable to

the creditor.

5. The statement is explained.

6. The partner who received payment which is not due does not

thereby implicate the other partners.

7. The other partners are implicated where one partner enters into

a contract on behalf of all of them in the best interests of the part-

nership and with due regard to its scope & no. 8.

9. Anybody contracting with a partner should show caution and look

at the scope of the partnership and determine whether the particula r

partner has the necessary authorization to contract and implicate

the others.

10. Anybody contracting with a partner has only himself to blame

if he fails to look at the nature and scope of the partnership.

11. In order to implicate his co-partners, a partner is required to state

that the contract entered into by him was modified to serve the in-

terests of the partnership.

12. This is not correct as far as an extraneous person contracting

with a partner go.

13. An extraneous person contracting with a partner who has been

suitably authorized need not remain in the dark. An action de in rem

verso is available against a partner contracting without the necessary

authority.

14. When there is doubt the partner is presumed to have contracted

in his personal capacity.The fact that a partner has contracted in

behalf of the partnership can be proved by presumptions.

15. An agent may tacitly or expressly be appointed by one of the

partners to serve the entire partnership.The entire partnership is

184

bound by the contracts entered into by the agent provided he does

not exceed the scope of the partnership.

16. If partners are present at the same locality simultaneously so

that contracts are alternatively entered into with all of them they are

regarded to be agents of one another.

17. Partners are regarded as the agents of one another if they carry

one divergent business in the same city or in different cities e.g. one

in Perusia and the other in Florence.

18. There is a dissenting view but it is clearly erroneous.

19. Somebody may be an agent if he trades with the consent of the

other partner that is the one who contributed the labour while the

other contributes the money.

20. An agent may accept money due to the impecuniosity of the

partnership accept a loan with binding effect on the other partners.

They may also accept cambium. They may provide sureties and pay

money to them.

21. There should be an urgent reason with equally important results

which would justify an agent to accept a loan.

22. An other requirements are necessary and no. 23.

24. As far as non-necessary requirements of the agent has express

authority to receive a loan of money.

25. If the agent should embezzle monies the partners are never-

theless liable.

26. Should a partner e.g. Titius conduct the affairs of the partner-

ship calling himself Titius and partners, they are all equally liable.

27. An agent is liable for contracts of the partnership as long as his

agency endures.

28. Even after the dissolution of a partnership and agent may still

be liable for partnership contracts, in the absence of the principals.

29. An agent can be sued for a loan accepted by him even after his

agency had been terminated. I approve of the contrary view.

30. Partners are jointly liable for a debt in a partnership of public

functionaries.

31. Partners are jointly liable for a contract entered into by an agent.

32. Others maintain that they are only liable to the extent of their

share in the partnership according to some people.

185