What is a partnership? Chapter 1

• Date: 01 February 2006
• Pages: 47-49
• DOI: 10.10520/EJC74063
• Published date: 01 February 2006
• Author: H.A. Wessels

Chapter 1

What is a partnership?

Summary

1. The definition to be put forward.

2. Various definitions of partnership.

3. The definition shows the substance of the matter.

4. The definition of partnership according to the author.

5. Obligation is the genus, contract is a species thereof, the genus

of partnership.

6. Partnership is created by consent, tacitly or expressly & no. 7.

8. Property or services or work can be contributed in a partnership.

9. How should the entering into a partnership, without the transfer of

property, be understood.

10. Of necessity a certain community is required to bring about

partnership.

11. The difference between partnership and other contracts entered

into by the consent of the partners.

One should in every treatise start with the definition, so as to under-

stand the nature of the matter discussed, as stated by Cicero (lib.1.

Offic.) and by the Emperor (in tit de jus.& jure.& in tit. de Iure nat.

gent. & civili. & in tit.de rer um division) and by the jurists in numerous

instances. There are many definitions of partnership.There are those

who say that a partnership is a contract entered into by the consent

of two or more persons and giving rise to a community between

them. This can be a general community brought about by consent

or a community for certain matters or a community of profit and loss.

It is a connection made honourably and justly. (Iacob. Cujac. in suis

paratit. in tit. ss. pro socio.) It is stated what is meant by participa-

tion in profit and loss and that all partners should share on an equal

basis.(

Rota Senens.decis. 46. num. I.) Others state that partnership

is a contract with reciprocal duties and a participation in profits and

losses according to the dictates of equity. (Baldus in cons. 120. n.

1. lib.1. Castr. in tr. de societ. off.c. 4. n. 16.) Others state and this

appears to be the most attestable, that partnership is a rational com-

munity of two or more people for greater practical benefit or greater

profit. (gloss. in rubr. Instit. de societat. Azo in summa. C. pro soc.

Speculat. in tit.de judic. & generalia. in vers. & nota.Petr. de Ubald.

in tract. de duob. fratrib q.6.4.24. Capic. decis. 174. num. 2 Iacob

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