The accidentalia of a partnership. Chapter 29

• Author: H.A. Wessels
• Date: 01 February 2006
• Pages: 158-165
• DOI: 10.10520/EJC74054
• Published date: 01 February 2006

Chapter 29

The accidentalia of a partnership

Summary

1. The accidentalia are considered in the light of negligence, default

and informal agreements added to the contract of partnership.The

accidentalia is therefore something added to the contract.

2. A penalty may be added to the contract of partnership.A penalty

contractually agreed upon, does not novate the original contract but

the one is not co-existent with the other.

3. A penalty is payable where the partner promised not to mortgage

the property of the partnership. A partner who had undertaken to

live in peace with his co-partner must pay a double penalty and

should he die the sheriff is held liable to pay the penalty. A penalty

to secure compliance with the informal agreements is payable where

failure to observe takes place.

4. The quantity of the penalty may be fixed and claimed.There are

twelve points of view.

5. A legal penalty cannot be more than fourfold but a conventional

penalty may exceed that limit, whether words of multiplication are

employed like twice, four times and numerals like one hundred or

two hundred, with some distinction being made.

6. It is generally accepted that a penalty which has been agreed upon

cannot exceed fourfold even expressed in multiplication but it may

exceed fourfold if expressed in numerals.

7. The view generally held is that a penalty cannot provide for more

than the loss actually suffered.

8. A penalty exceeding the loss actually suffered is distinguished in

some other way.

9. A penalty which is more than twofold taking into account contempt

is fixed by the judge.

10. A penalty added to a contract concerning a fixed amount of money

may never be for more than two-fold.

11. If a penalty is added to a contract involving an indeterminate

amount of money may never exceed the actual interest of the party

concerned.

12. The judge may ameliorate the terms of a penalty but the sub-

stance of the agreement is decided upon by the parties themselves.

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