PARTNERSHIPS

Prepared by: Raymond Andes, May 2010

Sources: Based on the New Civil Code of the Philippines, much of this work was taken from
Helen Arevalo’s reviewer supplemented by commentaries by Paras, Suarez and Tolentino.
Also, some portions, albeit minimal, were taken from the reviewer prepared by Rene
Callanta and the reviewer prepared for the class of Professor Roberto Dio.
Note: This reviewer is originally and specifically designed for the pre-review program of
Accountancy graduates of Bicol University class of 2010 in preparation for the October 2010
CPA Board Exams. The author did not include all topics for the subject due to the fact that
the schedule was only for one day, which he believes is not enough to cover the entire
subject matter. However, he does believe that this reviewer can still be used for mid-terms
purposes as this covers a significant bulk of the topics under partnership. Efforts are exerted
in order to present the topics in a very convenient style, enriched with reasons and personal
comments made by the author himself, for the very purpose of inculcating in the minds of
the readers provisions embedded in the Civil Code for partnerships and for easy
understanding...J
Definition: It is a contract whereby two or more persons bind themselves to contribute
money, property, or industry to a common fund, with the intention of dividing profits among
themselves, or in order to exercise a profession. – taken from Art. 1767 of Civil Code
Since partnership is a contract, the general provisions of the Civil Code on Contracts are
applicable. However, partnership has certain characteristics that are unique to it. Hence, it
has its own separate provisions, in addition to the general provisions on contracts.
Characteristics (What kind of a contract is partnership?)

a. Consensual – perfected by mere consent.*

b. Nominate – has a designated name.

c. Preparatory – its formation is followed by other contracts to carry out its purpose.

d. Onerous – involves consideration.

e. Bilateral or multilateral – entered into or stipulated upon by two or more persons.

f. Principal – it can stand alone.

Essential Elements
a. There must be a valid contract – since a partnership is a contract, all elements of
a contract such asco ns ent,o b ject andcaus e must be present.
b. There must be two or more persons who have the legal capacity to contract – since
consent is an essential element of a valid contract, the persons constituting a
partnership must have the legal capacity to enter into a contractual relation. This
 essential element, however, does not preclude artificial entities such as a
partnership from forming another partnership.(Q: Can 2 or more corporations
create a partnership?)
c. There must be lawful purpose – as one of the basic principles of a contract, the
parties have the liberty to create partnership for whatever purpose. However, such
purpose must not be contrary to law, morals, good customs, public order or public
policy. This is in conformance with Art. 1306 of Civil Code.
Effects of an unlawful partnership
i.
The contract is void ab initio and the partnership never existed in the eyes
of the law
ii.
The profits shall be confiscated in favor of the government – It would be
immoral and unjust for the law to permit a profit from an industry
prohibited by it. Besides, if profits are not confiscated, this would only give
incentives to other persons to establish partnerships for the same illegal
purpose because even if their contributions (see #4) are confiscated, they
still have earnings or profit, which is basically the reason why they set up
the partnership in the first place.
iii.
The instruments or tools and proceeds of the crime shall also be forfeited
in favor of the government
iv.
The contributions of the partners shall not be confiscated unless they fall
under #3
d. There must be a mutual contribution of money, property or industry to a common
fund.
e. The purpose is to obtain profits and to divide the same among the partners.
f. There must beint ent to engage in lawful business, trade or profession. – Parties
cannot, by using the word “partnership,” create such a relationship where the
contract between them clearly provides that there was to be no community of
interest.
CONSEQUENCES OF THE PARTNERSHIP BEING A JURIDICAL ENTITY
A Partnership has a juridical personalitys ep arat e andd ist inct from that of each of the
partners (Art. 1768).
1. its juridical personality is SEPARATE and DISTINCT from that of each partner
2. the partnership CAN in GENERAL:

A) acquire and possess property of all kinds

B) incur obligations
C) bring civil and criminal actions
D) can be adjudged insolvent even if the individual members be each financially
solvent
3. unless he is generally sued, a partner has no right to make a separate appearance in
court if the partnership being sued is already represented
RULES TO DETERMINE THE EXISTENCE OF A PARTNERSHIP (Art. 1769)
1. persons who are not partners to each other are not partners as to third persons
EXCEPTION: PARTNERSHIP BY ESTOPPEL (WHEN 2 persons, who are partners, in
connivance with a friend who is not a partner inform a stranger that said friend is
their partner, a partnership by estoppel also result to the end that the stranger
shouldnot bep rejud iced).
 2. CO-OWNERSHIP of a property does not itself establish a partnership, even though the
co-owners share in the profits derived from the incident of joint ownership.
Example of Co-ownership: Rosalinda Margarita owns an apartment in Matnog,
Sorsogon. On 11/11/2011, Rosalinda died, leaving her apartment to her twin
daughters Jerelyn and Jirilin where it was stated in her last will and testament that
such property will be shared by them. The girls are considered co-owners of the
property.
The reason why co-ownership is not considered a partnership is the fact that it lacks
some of the essential elements of partnership such as mutual contribution,int e nt
to engage in business or professionand meeting of minds, which is an
essential element of a contract.
3. SHARING OF GROSS RETURNS ALONE does not indicate a partnership whether or not
the persons sharing them have a joint or common right or interest in any property
from which the returns are derived
This can also be derived from the fact that mere sharing of gross returns, if without
the essential elements of a partnership, cannot be considered a partnership.
4. the receipt of the share in the profits is a strong presumptive evidence of partnership
HOWEVER, no such inference will be drawn if such profits were received in payment
A) as a DEBT by installments or otherwise
B) as WAGES of an employee
C) as RENT to a landlord
D) as an ANNUITY to a widow or representative of a deceased partner
E) as INTEREST on a LOAN, though the amount of payment vary with the profits
of the business
F) as the CONSIDERATION for the sale of a GOOD WILL of a business or other
property or otherwise
> creditors are not partners, for their only interest in the sharing of profits is the
receipt or payment of their credits
FORM OF PARTNERSHIP CONTRACT
Since a partnership is consensual in nature, it is perfected by mere consent. However, there
are exceptions to this general rule.
Exception: Where immovable property contributed, failure to comply w/ the following
requisites will render the partnership contract void:
1.) The contract must be in a public instrument;
2.) An inventory of the property contributed must be made, signed by the parties, and
attached to the public instrument.
An inventory is very important in a partnership to show how much is due from each partner to complete his
share in the common fund and how much is due to each of them in case of liquidation.
The execution of a public instrument of partnership would be useless if there is no inventory
of immovable property contributed because w/o its description and designation, the
instrument cannot be subject to inscription in the Registry of Property, and the contribution
cannotaff e ct third persons.
HOWEVER: A partnership with a capital of at least P3,000, even if none of the properties is
immovable, must have the following requirements:
1. The contract must appear in a public instrument;
2. It must be recorded or registered w/ the SEC.
However, failure to comply w/ the above requirements does not prevent the formation of the
partnership or affect its liability and that of the partners to third persons. But any partner is
granted the right by law to compel each other to execute the contract in a public
instrument.
Purpose of registration – Registration is necessary as a condition for the issuance of
licenses to engage in business and trade. In this way, the tax liabilities of big partnerships
cannot be evaded and the public can determine more accurately their membership
 and capital before dealing with them (TRUST and CONFIDENCE/TRANSPARENCY purposes).
CLASSIFICATIONS OF PARTNERSHIPS
As to extent of its subject matter –
1. Universal partnership
a. Universal partnership of all present property – the properties that belong to
each of the partners at the time of the constitution of the partnership
becomes the common properties of all the partners. Profits derived from
common properties become common properties as well but future properties
acquired by individual partners in their own name shall not be considered part
of the common properties.
b. Universal partnership of profits – the individual properties here continue to be
owned by the partners, but the usufruct thereof passes to the firm.

DISTINCTIONS
ALL PRESENT PROPERTY ALL PROFITS
All the property actually belonging to the Only the USUFRUCT of the properties of
the