Should acquisitions made by partners, be shared immediately, or can it be delayed. Chapter 14

• Published date: 01 February 2006
• DOI: 10.10520/EJC74057
• Date: 01 February 2006
• Author: H.A. Wessels
• Pages: 105-128

Chapter 14

Should acquisitions made by partners, be shared

immediately, or can it be delayed

Summary

1. A community is required in a partnership.

2. If an object acquired by one partner is alienated by him it does

not become the property of the other partner and no action is avail-

able against a third party even if the alienation involves loss to the

partnership.

3. If an object has become common property, it cannot be alienated

by the partner unless he does so to the extent of his share therein.

4. An object acquired by one of the partners in a partnership involving

all the assets, immediately becomes common property both as far

as ownership and possession is concerned.

5. An object acquired by one of the partners in a partnership in-

volving all the assets becomes common property forthwith but col-

lation is suspended where he acquired it in his own name.

6. There is a divergent opinion to the effect that it is shared and this

seems more acceptable.

7. Ownership is transferred amongst partners because a universal

title adheres to the person.

8. Ownership is shared amongst the partners in order to preserve

equality.

9. A partner is presumed to hold and possess property even in the

name of another partner according to a clause in the constitution

and no. 10.

11. The effect of the constitution makes itself felt even as far as future

property is concerned mentioned in the contract of partnership be-

cause future property is mentioned therein.

12. T

wo fictions cannot apply to the same matter at the same time.

This does not apply when one of them is dependent on the other.

13. Actions are not shared between partners but they must be made

available to each other. Arguments derived from the actions should

not be extended to assets.

14. Actions are acquired by one of the partners when another partner

is absent (Intellectus l. 3. ff.pro soc.).

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15. (Intellectus l. si ita stipulatus. ss. Chryfogonus. ff. de verb. oblig.)

An extraneous person is not said to be party to a contract. It does

not apply if the extraneous person does not render the contract void.

16. (Intellectus l. si socius. ff. si cert. petat.).

17. The person acquiring should have the intention of acquiring for

the partnership in order that the object acquired should become

common property.

18. A constitution operates only to cover future events if the person

acquiring acquires the object with the intention that it should fall under

the constitution. In seeking one person may prejudice another for

whom something is sought.

19. One partner cannot change the nature of a partnership without

the consent of the other partner.

20. In order that one partner may acquire for the other there is no

need for an express intention to do so.

21. The intention to acquire for another partner is always considered

to be present in the partner who acquired, and a change of intention

is never presumed.

22. (Intellectus l. si actions. ss. quod si quid post. ff. pro socio).

23. (Intellectus l. fin. C. de acquir.possess.).

24. (Intellectus l. si quis societatem. ff. pro soc.).

25. An object acquired in a partner’s own name must be shared

whether it was bought with the partner’s own money or money be-

longing to the partnership in a partnership involving all the assets

and no action is available for restitution of the money.

26. If an acquisition was made in a partner’s own name and the

other partner remains silent, he does so to his own detriment.

27. An acquisition made by a partner in a partnership involving all

the assets is always presumed to have been made for the partner-

ship in the event of doubt. A partner is always considered to acquire

for the partnership.

28. Some people maintain incorrectly that a partner should con-

tribute to the partnership and not acquire for the partnership.

29. Ownership does not vest in the partner who acquires because

it already vests in another partner. This does not apply to a parti-

cular partnership.

30. No action can be acquired by one of the partners for another

unless cession is made.The rule that nobody may stipulate for

another also applies in the case of partnerships.

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