The way in which a partnership is terminated by conduct. Chapter 36

• Pages: 233-235
• Published date: 01 February 2006
• Date: 01 February 2006
• DOI: 10.10520/EJC74047

Chapter 36

The way in which a partnership is terminated by

conduct

Summary

1. A partnership is terminated by conduct, which includes contract

and court action — contract would mean novation.

2. Court action means to proceed against somebody appointed by

my partner or to proceed against the partner himself by an action

based on partnership.

3. If the actio pro socio is brought to claim something which had to

be observed while one partnership was still in existence, the partner-

ship is not dissolved (& num. 4).

5. If the general actio pro socio is brought against a co-partner, the

partnership is dissolved.

6. Partners cannot be opponents.

7. Once an action is instituted, the partnership is dissolved simul-

taneously.

8. The issuers of lease may be compelled to enter into a new lease,

if there is a very large income and nobody can be abstained in

leasing for the same price, but only those willing to lease it for less.

This is correct but it is never observed.

A partnership is dissolved when court proceedings are instituted

by one partner against the other (l. verum. ss. fin.ff. pro soc.) and

that means that the partnership’s nature is changed by contract or

by court proceedings (l. actione. in princ. ff. pro soc.). A contract in

this regard means that it was entered into with a co-partner or an

extraneous person (Petr. de bald. in tract. de duob.fratr ib. part. 11.

sub num. 1. vers. octavo.), with novation in mind (gloss. in ver. stipu-

latione). Court proceedings may assume two forms. Firstly, by insti-

tuting action against the appointee of my co-partner (l. delegare. ff.

de novat. & delegat.Gloss. in d. l. actione. in princip. in ver. judicio.

Petrus de Ubald. d. part. 11. sub num. 1. vers. octavo). Secondly, by

instituting the actio pro socio against the partner himself with the

clear understanding that there is a difference between a partnership

for the lease of taxes and an ordinary partnership. In the former

the bringing of the actio pro socio will not result in the dissolution

of the partnership, because the partners may be compelled to proceed

so as not to cause a loan to the treasury.This view is substantiated

(in l. actione. ss. nonnunquam. ff. pro soc) to the effect that it is

sometimes necessary to institute an action against a co-partner

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