Professional Documents
Culture Documents
General Provisions
Art. 1767 – Definition:
Partnership – a contract whereby two or more persons bind themselves to contribute money, property or industry to a
common fund, with the intention of dividing the profits among themselves, or in order to exercise profession.
Profession – a group of men pursuing a learned art as a common calling in the spirit of public service – no less a public service
because it may incidentally be a means of livelihood.
Characteristics of Partnership
1. Consensual
2. Nominate
3. Bilateral
4. Onerous
5. Commutative
6. Principal
7. Preparatory
Elements
1. consensual;
2. there must be a contribution of money, property or industry to a common fund;
3. the subject must be a lawful one;
4. there must be an intention of dividing the profit among the partners;
5. there must be a desire to formulate an active union (affectio societatis);
6. a new personality, that of the firm – must arise, distinct from the separate personality of each of the members
Essential Features of Partnership
1. there must be a valid contract;
2. the parties must have legal capacity to enter into the contract;
3. there must be a mutual contribution of money, property, or industry to a common fund;
4. the object must be lawful; and
5. the primary purpose must be to obtain profits and to divide the same among the parties
Attributes
1. mere consent brings about pp
2. juridical person
3. mutual agency
4. delectus personae
5. unlimited liability
Differentiation:
Partnership (P) vs. Corporation (C)
a. creation
P – voluntary agreement of parties
C – created by the state in the form of a special charter or by a general enabling law
b. how long it exists
P – no time limit except agreement by parties
C – not more than 50 years; may be reduced, but never extended
c. liability to strangers
P – may be liable with their private property beyond their contribution to the firm
C – liable only for payment of their subscribed capital stock
d. transferability of interest
P – even if a partner transfers his interest to another, the transferee does not become a partner unless all other parties consent
C – a transfer of interest makes the transferee a stockholder, even without the consent of the others
e. ability to bind the firm
P – generally, partners acting on behalf of the partnership are agents thereof; consequently they can bind both the firm and the
partners
C – generally, the stockholders cannot bind the corporation since they are not agents thereof
f. mismanagement
P – a partner can sue a partner who mismanages
C – a stockholder cannot sue a member of the board of directors who mismanages: the action must be in the name of the
corporation
g. nationality
P- a partnership is a national of the country it was created
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C – a corporation is a national of the country under whose laws it was incorporated, except for wartime purposes or for the
acquisition of land, natural resources and the operation of public utilities in the Philippines, in which case the veil of the corporate
identity is pierced and we go to the nationality of the controlling stockholders
h. attainment of legal personality
P – the firm becomes a juridical person from the time the contract begins
C – the firm becomes a juridical person from the time it is registered in the Securities and Exchange Commission, and all requisites
have been complied with
i. dissolution
P – death, retirement, insolvency, civil interdiction, or insanity of a partner dissolves the firm
C – such causes do not dissolve the corporation
3. legal personality
P: there is
JV: none
4. firm name
P: nece
JV: not nece
5. with corpo
P: cannot, by reason of public policy
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JV: can be if in line with business and authorized by the charter
Partnership (P) vs. Co-Ownership
a. creation
P – created by contract only (express or implied)
CO – created by contract, law and other things
b. juridical
P – has juridical or legal personality
CO – has none, hence, it cannot sue or be sued as such
c. purpose
P – for profit
CO – collective enjoyment (hence, not necessarily for profit)
d. agency or representation
P – as a rule, there is mutual representation
CO – as a rule, there is no mutual representation (although it is enough for one co-owner to bring an action for ejectment
against a stranger)
e. transfer of interest
P – cannot substitute another as partner in his place, without unanimous consent
CO – can dispose of his share without the consent of the others
f. length of existence if created by contract
P – no term limit is set by law
CO – must not be for more that 10 years (although agreement after termination may be renewed) (hence, if more than 10 years,
the excess is VOID)
20 years is the maximum if imposed by the testator or donee of the common property
g. profits
P- may be stipulated upon
CO – profits must always depend on proportionate shares (any stipulation to the contrary is VOID)
h. dissolution
P – dissolved by death or incapacity of a partner
CO – not dissolved by the death or incapacity of co-owner
i. form
P – may be made in any form except when real property is contributed (here, a public instrument is required)
CO – no public instrument needed even if real property is the object of the co-ownership
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SO – not a legal person
Partnership (P) vs. Voluntary Association (V)
a. juridical personality
P – has juridical personality
V - none
b. purpose
P – always organized for pecuniary profit
V – such objective is lacking
c. contribution of members
P – there is contribution of capital, either in the form of money, property, or services
V – for social purposes, although fees are usually collected from the members to maintain the organization, there is no
contribution of capital
d. liability of members
P – the partnership, as a rule, is the one liable in the first place for the debts of the firm
V – the members are individually liable for the debts of the association, authorized by them either expressly or impliedly, or
subsequently ratified by them
Partnership vs. Business Trusts
when certain persons entrust their property or money to others who will manage the same for the former, a business trust is
created. The investors are called cestui que trust; the managers are the trustees. In a true business trust, the cestui que trust
(beneficiaries) does not at all participate in the management; hence, they are exempted from personal liability, in that they can
be bound only to the extent of their contribution.
Partnership vs. Tenancy
a. a partner acts as agent for the partnership whom he represents; the tenant does not represent the landlord.
b. a partnership is a legal person; no such person is created in the relationship between landlord and tenant.
Partnership vs. Agency
a. “agency” may in one sense be considered the broader term because: partnership” is only a form of “agency.”
b. an agent never acts for himself but only for his principal; a partner is both a principal (for his own interest) and an agent (for
the firm and the others).
Partnership vs. Joint Adventure (joint accounts)
a. a joint adventure is a sort of informal partnership, with no firm name and no legal personality. In a joint account, the
participating merchants can transact business under their own name, and can be individually liable therefor.
b. usually but not necessarily, a joint adventure is limited to a SINGLE TRANSACTION, although the business of pursuing it to a
successful termination may continue for a number of years; a partnership generally relates to a continuing business of
various transactions of a certain kind.
Partnership vs. Labor Union
- a labor union is any association of employees which exists in whole or in part for the purpose of collective bargaining or of
dealing with employers concerning terms and conditions of employment.
- partnerships and labor unions have some characteristics in common, but the purpose of partnership is essentially to enable its
members, as principals, to conduct a lawful business, trade, or profession for pecuniary gain of partners, and no one may
become a partner without consent of all partners
Partnership vs. Syndicate
a syndicate is usually a particular partnership, that is, it may have been organized to carry out a particular undertaking or for
some temporary objective
Art. 1768 – Partnership is a juridical person separate and distinct from each of the partners.
Consequences:
1. Its juridical personality is separate and distinct from that of each of the partners.
2. The partnership can:
- acquire and possess property of all kinds;
- incur obligations;
- bring civil or criminal actions;
- can be adjudged insolvent even if the individual members be each financially solvent
3. A partner has no right to make a separate appearance in court, if the partnership being sued is already
represented, unless he is personally sued.
Limitations on Alien Partnership
- Secs. 2, 7, 10 and 11 of Art. 12 of the 1987 the Philippine Constitution
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2. One who enters into contract with a “partnership” as such cannot, when sued later on for recovery of the debt,
allege the lack of legal personality on the part of the firm, even if it indeed had no personality.
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whenever real properties or real rights in real properties are contributed – regardless of the value – a public instrument is
needed. Moreover, an inventory of the immovables is needed. This must be signed by the parties and attached to the
public instrument
1. for effectivity of the partnership contract insofar as innocent third persons are concerned, the same must be
registered if real properties are involved.
Art. 1772 – Partnership with capital of Php 3,000 or more – Registration with the SEC
Purpose of the registration with the office of the SEC: to set a condition for the issuance of licenses to engage in business
or trade
Effect of non-registration
1. even if not registered, the partnership having a capital of Php 3,000.00 or more is still a valid one, and therefore has
legal personality;
2. if registration is needed, or desired, any of the partners of a valid partnership can compel the others to execute the
needed public instrument, and to subsequently cause its registration.
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1. Universal Partnership
- may refer to all the present
property or to all the profits
a. universal of all present property
- that which the partners contribute all the property which actually belongs to them to a common
b. universal of profits
- comprises all that the partners may acquire by their industry or work during the existence of the partnership
2. Particular Partnership
- object are determinate things, their use or fruits; a specific undertaking or the exercise of a profession or occupation
b. as to liability of partners
1. General
- they are liable even with respect to their individual properties, in pro rata after the assets of the partnership have been
exhausted, for the contracts which may be entered into in the name and for the account of the partnership, under its signature
and by a person authorized to act for the partnership
2. Limited
- formed by two or more persons having as members one or more general partners and one or more limited partners.
The limited partners as such shall not be bound by the obligations of the partnership
A limited partner is one whose liability is limited only up to the extent of his contribution
c. as to duration
1. at will
2. at a fixed term
- the term of existence has been agreed upon expressly or impliedly
- the expiration of the term thus fixed or the accomplishment of the particular undertaking specified will cause the automatic
dissolution of the partnership
d. as to legality of existence
1. de jure –
2. de facto
e. as to representation
1. ordinary/real
2. ostensible/ partnership by estoppel
f. as to publicity
1. secret
2. open or notorious
g. as to purpose
1. commercial
2. professional
Kinds of Partners
1. Capitalist Partners
- one who furnishes capital;
- not exempted from losses; can engage in other business provided there is no competition between the partner and his
business
2. Industrial
- one who furnishes industry or labor;
- can be a general partner but never a limited partner;
- exempted from losses as between the partner; cannot engage in any other business without express consent of the partners,
otherwise
- he can be excluded from the firm (plus damage)
- or the benefits he obtains from the other business can be availed of by the other partners (plus damages)
3. General/Real
- one who is liable beyond the extent of his contribution
4. Managing
- one who manages actively the firm’s affairs
5. Liquidating
- one who liquidates or winds up the affairs of the firm after it has been dishonored
6. Partner by estoppel/Quasi-partner
- one who is not really a partner but who may become liable as such insofar as third persons are concerned
7. Continuing
8. Surviving
9. Subpartner
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Other classifications
a. ostensible partner
- one whose connection with the firm is public and open
b. secret
- one whose connection with the firm is concealed or kept a secret
c. silent
- one who does not participate in the management, though he shares in the profits or losses
d. dormant/sleeping
- one who is both a secret and silent partner (not managing)
e. original
f. incoming
g. retiring
Arts. 1778-80 – Universal Partnership
2 kinds of Universal Partnership
A. Universal property of all present property
- one which comprises all that the partners may acquire by their industry or work during the existence of the
partnership and the usufruct of movable or immovable property which each of the partners may possess at the
time of the celebration of the contract.
The following become common property of all the partners:
1. property which belonged to each of them at the time of the construction of the partnership
2. profits which they may acquire from the property contributed
Property which the partners may acquire subsequently by inheritance, legacy or donation cannot be included for
the stipulation for common enjoyment
Fruits thereof may be included
B. All profits
- comprises all that the partners may acquire by their industry or work during the existence of the partnership
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Distinction between all profits and all present property
All profits
- only the usufruct of the properties of the partners become common property; naked ownership is retained by
each of the partners
- all profits required by the industry or work of the partners become common property
All present property
- all the property actually belonging to the partners are contributed- and said properties become common
properties
- as a rule, aside from the properties, only the profits of the said contributed common property
Note:
- profits from other sources may become common, but only if there is a stipulation to such effect.
- Properties subsequently acquired by inheritance, legacy or donation, cannot be included in the stipulation, but
the fruits thereof can be included in the stipulation
Art. 1782 – Persons prohibited by law to give donation- cannot enter into Universal Partnership
1. HUSBAND and WIFE
2. those guilty of ADULTERY or CONCUBINAGE
3. those guilty of the same criminal offense if the partnership was entered into in consideration
> while spouses cannot enter into a universal partnership, they can enter into a particular partnership or be members thereof
> a universal partnership is virtually a donation to each other of the partners properties
or at least their usufruct
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Reason: they should not be allowed to do indirectly what the law forbids directly
Art. 1783 – Particular Partnership
- it has for its object determinate things, their use of fruits, or specific undertaking, or the exercise of a profession or
vocation
Doctrine:
If two (2) individuals form a particular partnership for a deal in reality, it does not necessarily follow that all deals are for
the benefit of the partnership. In the absence of agreement, each particular deal results in a particular partnership. If
one of them, on his account, and using his own funds, should make transactions in the same business, it is his own
undertaking
PARTNERHSIP OBLIGATIONS
A. OBLIGATIONS AMONG THEMSELVES
1. To make contributions promised
2. Obligation for additional contribution
3. Duty/obligation of diligence and fidelity
4. Right to accounting
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5. creds of pp and pr
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- Unless there is a stipulation fixing a different time, this obligation of a partner to give his promised contribution arises
from the commencement of the partnership, that is, upon perfection of the contract.
Cases covered by the article:
a. when money promised is not given on time;
b. when partnership money is converted to the personal use of the partner
Coverage of liability
a. interest at the agreed rate (if none, the legal interest)
b. damages that may be suffered by the partnership
Why no demand is needed to put partners in default:
a. contribution
- a partnership is formed precisely to make use of contributions, and this use should start from its formation, unless a
different period has been set; otherwise the firm is necessarily deprived of the benefits thereof
- injury is constant
- time is of the essence
b. conversion
- the form is deprived of the
benefits of the money, from the very moment of conversion
note: even if no actual injury results, the liability exists because Art. 1788 is absolute
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1. if there is imminent loss of the partnership;
2. he refuses to contribute an additional share to the capital; and
3. there is no agreement to the contrary
note: industrial partner is exempted for he is already giving his entire industry
Mitigation of Liability
- equity may mitigate liability if there are “extraordinary efforts” resulting in unusual “profits”
Need for Liquidation
- before a partner sues another for alleged fraudulent management and resultant damages, a liquidation must first be
effected to know the extent of damages
Effect of Death of the negligent Partner
- suit for recovery may be had against his estate
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2. to answer for the obligations the partner may have contracted in good faith in the interest of the partnership
business; and
3. answer for risk in consequence of its management
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b. however, under Art. 1809, formal accounting may be properly asked for
Estoppel
- cannot be questioned anymore if it was accepted without objection for this would now be a case of estoppel, unless
fraud and error are alleged and proved
Stipulation and Continuing Share
- valid and proper accounting must be made
MANAGING POWER
Art.1800 - Rights and Obligations of a Managing Partner
Modes of Appointing a Manager
1. appointment as manager in the articles of partnership
2. appointment as manager made in an instrument other than the articles of partnership or made orally
Distinction between Appointment in Articles of Partnership and Appointment from other Source (other than the articles of
partnership)
a. as to power
Partnership – power is irrevocable without just or lawful cause
- to justify removal for just cause: controlling partners should vote to oust him (fin maj)
- without just cause: there must be unanimity
other source - power to act may be revoked at any time, with or without just cause
- such appointment is a mere delegation of power; revocable at any time
- removal shall also be done by the controlling interest
b. as to extent of power
good faith – he may do all acts of administration (not ownership) despite the opposition of his partners
bad faith – he cannot
other source – as long as he remains manager, he can perform all acts of administration, but of course, if the others
oppose and he persists, he can be removed
Scope of the Powers of the Manager
Unless specifically restricted:
- he has the powers of a general agent;
- as well as the incidental powers needed to carry out the objectives of the partnership
-
Rules as to Compensation
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General Rule:
- in the absence of an agreement to the contrary, each member of the partnership assumes the duty to give his time,
attention, and skill to the management of its affairs, so far at least, as may be reasonable necessary to the success
of the common enterprise; and for this service a share of the profits is only his compensation.
Exceptions:
a. a partner engaged by his co-partners to perform services not required of him in fulfillment of the duties which the
partnership relation imposes and in a capacity other than that of a partner is entitled to receive the compensation
agreed upon therefor;
b. a contract for compensation may be implied where there is extraordinary neglect on the part of one partner to
perform his duties toward the firm’s business, thereby imposing the entire burden on the remaining partner;
c. one partner may employ his co-partner to do work for him outside of and independent of the co-partnership, and
become personally liable therefor;
d. partners exempted by the terms of partnership from rendering services to the firm may demand pay for services
rendered;
e. where one partner is entrusted with the management of the partnership business and devotes his whole time and
attention thereto, at the instance of the other partners who are attending to their individual business and giving no
time or attention to the business of the firm, the case presents unusual conditions, is taken out of the general rule as
to compensation and warrants the implication of an agreement to make compensation, In such cases, the amount
of compensation depends, of course, upon the agreement of the parties, express or implied, as well as upon the
particular circumstances of the case; and
f. by the contract of partnership, one partner is exempted from the duty of rendering personal services to the
concerned, if he afterwards does render such service at the instance and request of his co-partners, or where the
services rendered are extraordinary.
APPLICABILITY:
When they innocently deal with a partner apparently carrying on in the usual way the business, it is imperative that if
unanimity is required it is essential that there be unanimity; otherwise the act shall not be valid, that is the partnership is
not bound.
Art. 1803 – Rule when manner of management has not been agreed upon
a. Generally, each partner is an agent
b. Although each is an agent, still if the acts are opposed by the rest, the majority should prevail for the presumed intent
is for all the partners to manage as in Art. 1801;
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c. When a partner acts as an agent, it is understood that he acts in behalf of the firm; therefor when he acts in his own
name, he does not bind the partnership generally
d. On the other hand, the authority to bind the firm does not apply if somebody else had been given authority to
manage in the articles of organization or thru other means.
Rule on Alterations
a. “important alterations”
- deals with immovable property because of their greater importance than personality. Also, in proper cases, they
should be returned to the partners in the same condition as when they were delivered to the partnership
b. “alteration”
- contemplates useful expenses
c. consent of the others may be express or implied
EQUITY POWER
Art. 1812 – Partner’s Interest in the Partnership is his share of the profits and surplus
In general., a partner’s interest in the partnership (his share in the profits and surplus) may be assigned, attached or be
subject to legal support
Surplus: assets-liabs | P: exp-profits
Art. 1813 – Conveyance of Interest
Effects of conveyance by partner of his Interest in the Partnership
1. Partnership may still remain; partnership may be dissolved
2. Assignee does not necessarily become a partner
3. Assignee cannot even interfere in the management or administration of the partnership business or affairs
4. Assignee cannot demand information, accounting or inspection of the partnership books
Rights of Assignee
1. to get whatever profits the assignor-partner would have obtained;
2. to avail himself of the usual remedies in case of fraud in the management;
3. to ask for annulment of the contract of assignment if there was fraud, error, intimidation, force, undue influence;
4. to demand an accounting
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- separate or individual creditors have preference in separate or individual properties
Art. 1799 – (1) Stipulation excluding a partner from any share in profits or losses
General Rule: a stipulation excluding one or more partners from any share in the profits or losses is void
Reason: partnership is for COMMON BENEFIT
Exception: in the case of the industrial partner whom the law itself excludes from losses
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note: stipulation exempting a partner from losses should be allowed
Reason why industrial partner is generally exempted from losses
- the industrial partner cannot withdraw any labor or industry he had already exerted.
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f. arbitration – an act of ownership which may not be justified
g. renounce a claim – why should a partner renounce a claim that does not belong to him but to the partnership?
3. title is in the name of one or more BUT not all the partners
a. pp interest has been disclosed in the record
1. suff auth: valid
2. w/o auth: recover\gf
b. pp interest not disclosed
1. w/o auth: recover against any transferee
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a. the knowledge was acquired by a partner who is acting in the particular matter involved;
b. the knowledge may have been acquired by a partner not acting in the particular matter involved
Art. 1822 – Liability of Partnership
Requisites for Liability
a. the partner must be guilty of a wrongful act or omission; and
b. he must be acting in the ordinary course of business, or with the authority of his co-partners even if the act is
unconnected with the business
note: partnership liability does not extend to criminal liability
Instances when the firm and other partners are not liable:
a. if the wrongful act or omission was not done within the scope of the partnership business and for its benefit;
b. if the act or omission was not wrongful;
c. if the act or omission, although wrongful, did not make the partner concerned liable himself; and
d. if the wrongful act or omission was committed after the firm had been dissolved and the same was not in connection
with the process of winding up
Burden of Proof
- the creditor, or whoever alleges the existence of a partner or partnership by estoppel has the burden of proving the
existence of the misrepresentation and the innocent reliance on it
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the newly admitted partner would be liable as an ordinary original partner for all partnership obligations incurred after his
admission to the firm
Creation of a new partnership in view of the entry
- the admission of a new partner dissolves the old firm and creates a new one;
- since the old firm is dissolved, the original creditors would not be the creditors of the new firm, but only of the original partners;
hence, they may lose their preference;
- under the civil code, they are considered creditors of the new firm
Liability of incoming partner for partnership obligations
1. limited to his share in partnership property for existing obligations, unless there is stipulation to the contrary;
2. extends to his separate property for subsequent obligations
Liability of an Outgoing Partner
- where a partner gives notice of his retirement or withdrawal from the partnership, he is freed from any liability on contracts
entered into thereafter, but his liability on existing incomplete contract continues.
the rule of holding the new partner liable for previous obligations of the firm is not harsh on the said new partner. After all the
incoming partner partakes of the benefit of the partnership, property and an established business
Winding Up
- the process of settling business affairs after dissolution
Termination
- the point in time after all the partnership affairs have been wound up
Effect on Obligations
a. a partner cannot evade previous obligations entered into by the partnership
b. absolution saves the former partners from new obligation to which they have not expressly or impliedly consented,
unless the same be essential for winding up
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by the expulsion of any partner from the business bona fide in accordance with such p[power conferred by the
agreement between the partners
2. In contravention of the agreement between the partners, where the circumstances do not permit a dissolution under
any other provision of this article, by the express will of any partner at any time;
3. when a specific thing, which a partner had promised to contribute to the partnership, perishes before delivery
4. by the death of any partner;
5. by the insolvency of any partner or of the partnership;
6. by the civil interdiction of any partner; and
7. by decree of court
note: partners in their contract cannot limit the cause for dissolution
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Art. 1833 – Kinds of Causes of Dissolution
a. Act-Insolvency-Death
b. Other things like termination
Effect of AID
all partners are still bound to each other generally, except:
a. if the partner had knowledge (as distinguished by NOTICE without actual knowledge)
- if dissolution is caused by an act (e.g. withdrawing, retiring)
b. if the partner acting had knowledge or notice, if dissolution was caused by death or insolvency
note:
Death or insolvency being more ordinary than an “act,” notice is enough. Hence, the law provides “knowledge” or
notice.
However, it is still essential that there be knowledge or notice of the fact of death or insolvency to justify non-liability of
the other partners to the parties acting.
Right of partner to contribution from co-partners
- when a partner enters into a new contract with a third person after dissolution, the new contract generally will bind
the partners (Art. 1834, par. 1). Each of them is liable for his share of any liability created by the acting partner as if
the partnership had not been dissolved.
WINDING UP
Art. 1836 – Judicial and Extrajudicial Wind up; Persons authorized to wind up
Extrajudicial winding up
- by the partners who have not wrongfully dissolved the partnership;
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- or by the legal representative of the last surviving partner provided the last survivor was not insolvent
Judicial winding up
- under the control and direction of the court, upon proper cause that is shown to the court;
- petition for judicial winding up can be done by any partner, his legal representative or assignee
Rule if survivor is not the manager
- he is not required to serve as liquidator thereof;
- he is not required as liquidator without compensation; and
- if he liquidates the affairs upon promise of a certain compensation by the managing partners, he is naturally entitled
to receive compensation
Profits
- profits are supposed to accrue only during the existence of the partnership before dissolution;
- profits that will actually enter the firm after dissolution as a consequence of transactions already made before
dissolution are included because they are considered as profits existing at the time of dissolution; and
- any other income earned after the time should not be disturbed as profits, but merely as additional income to the
capital
Persons authorized to wind up:
a. the partners designated by the agreement;
b. in the absence of such agreement, all the partners who have not wrongfully dissolved the partnership; and
c. the legal representative (executor or administrator) of the last surviving partner (when all the partners are already
dead) not insolvent.
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Liquidation
- before liquidation is made, no action for accounting of a partner’s share in the profit or for a return of his capital assets
can properly be made, since it is essential to first pay off the creditors
Assets of Partnership
- partnership property
- contributions of the partners, which are made to pay off the partnership liabilities
notes:
- if the partnership assets are insufficient the other partners must contribute more money or property
- such contributors may be enforced by:
- any assignee for the benefit of the creditor, or any person appointed by the court;
- any partner or his legitimate representative
Preference with respect to the assets
It depends:
- regarding partnership property, partnership creditors have preference
- regarding individual property, creditors are prejudiced
Rules if partners are insolvent
a. give to the individual/separate creditors;
b. give to the partnership creditor;
c. then those owing to the other partners by way of contribution
Art. 1842 – Accrual and Prescription of Partner’s right to account for his Interest
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- person in partnership continuing the business
Prescription
- begins to run only upon the dissolution of the partnership when the final accounting is done
LIMITED PARTNERSHIP
Art. 1843 – Limited Partnership
Characteristics:
a. formed by compliance with the statutory requirements;
b. one or more general partners control the business and are personally liable to creditors
c. one or more limited partners contribute to the capital and share in the profits but do not participate in the management of
the business and are not personally liable for partnership obligations beyond the amount of their capital contributions;
d. the ;limited partners may ask for the return of their capital contributions under the conditions prescribed by law; and
e. the partnership debts are paid out of common fund and the individual properties of the general partners
Limited Partnership
- one formed by two or more persons under the provisions of Art. 1844, having as members one ore more general
partners and one or more limited partners. The limited partners as such shall not be bound by the obligations of the
partnership
Art. 1846 – Effect where surname of limited partner appears in partnership name
- the limited partner violating this article is liable, as a general rule, to partnership creditors without, however, the rights
of a general partner. Of course, such limited partner shall not be liable as a general partner with respect to third
persons with actual knowledge that he is only a limited partner.
- a limited partner is liable as a general partner for the firm’s obligations if he takes part or interfere in the
management of the firm’s business.
The following do not constitute taking part in the control of the business:
a. mere dealing with a customer;
b. mere consultation on one occasion with the general partners
26
a. selection of who will be managing partners;
b. supervision over a superintendent of the business of the firm
note: participation in the control of the business makes the limited partners liable as a general partner without getting
the latter’s rights
- even after a limited partnership has already been formed, the firm may still admit new limited partners,
provided there is a proper amendment to the certificate
- failure to amend the certificate does not necessarily mean the dissolution of the limited partnership
Under the acts enumerated (under Art. 1850), the general partners (even if unanimous) must still get the written
consent of all the limited partners.
If a general partner in a limited partnership goes abroad, his capacity to bind the firm is governed by the law of
the place where the limited partnership was formed.
Art. 1852 – Status of partner where there if failure to create limited partnership
a contributor who erroneously believes he has become a limited partner and thereupon exercises the rights of
a limited partner, he should not be considered as a general partner
however, he can be held liable as a general partner:
- unless in ascertaining the mistake, he promptly renounces his interest in the profits of the business or other
compensation by way of income;
- unless, even if no such renouncing is made, partnership creditors are not prejudiced
Art. 1853 – A person may be both a general partner and a limited partner
a person may be a general and a limited partners at the same time, provided the same is stated in the
certificate
generally, his rights are those of a limited partner
exception:
- regarding his contribution, he would be considered a limited partner, with the rights of a limited partner insofar
as the other partners are concerned
Art. 1854 – Loan and other business transactions with limited partners
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Right of a limited partner to lend money and transact other business with the firm
a. the parties are always given preferential rights insofar as the firm’s assets are concerned
b. while a limited partner, in the case of claims referred to in the article, is prohibited to receive or hold as
collateral security any partnership property, still he is not prohibited to purchase partnership assets which are
used to satisfy partnership obligations towards third parties
Allowable transactions
a. granting loans to the partnership;
b. transacting other business with it; and
c. receiving a pro rata share of the partnership assets with general creditors if he is not also a general partner
Prohibited transactions
a. receiving or holding collateral security any partnership property
b. receiving any payment, conveyance, or release from liability if it will prejudice the right of third persons
Preference involves:
- return of contribution
- compensation
- other matters
For this article to apply, partnership assets must be in excess of partnership liabilities to third persons, not liabilities
to partners
a. all liabilities of the partnership have been paid or if they have not yet been paid, the assets of the partnership
are sufficient to pay such liabilities
b. the consent of all the members has been obtained except when the return may be rightfully demanded; and
c. the certificate is cancelled or so amended as to set forth the withdrawal or reduction of the contribution
Par. 1 – deals with the conditions that must exist before contribution by a limited partner can be returned to him
Par. 2 – deals with the time when such contributions can be returned, provided that the conditions are complied with
even if a limited partner has contributed property, he has the right to demand and receive cash in return
if par. 1 is violated, previous creditors can sue, but they must allege and prove the non-existence of the
conditions
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Liabilities of a limited partner
a. to the partnership
- their liability is to the partnership not to the creditors of the partnership
b. to partnership creditors and other partners
- see arts. 1843, 1846-48,1854,and 1844, par.2
c. to separate creditors
- see art 1862
- new provision
- source: Sec. 20 Uniform Limited Partnership Act
- new provision
- source: Sec. 21 Uniform Limited Partnership Act
- new provision
- source: Sec. 22 Uniform Limited Partnership Act
- new provision
- source: Sec. 23 Uniform Limited Partnership Act
- new provision
- source: Sec. 24 Uniform Limited Partnership Act
Cancellation
29
- when the partnership is dissolved, or when all the limited partners cease to be limited partners, the limited
partners shall be cancelled, not merely amended. The writing to cancel a certificate shall be signed b y all the
members
- new provision
- source: Sec. 25 Uniform Limited Partnership Act
Art. 1866 – When contributors (other than general partners) should be made parties to proceedings
- new provision
- source: Sec. 30 Uniform Limited Partnership Act
Art. 1868
Definition of agency
- a relationship which implies a power in an agent to contract with a third person on behalf of the principal.
- The power to effect the principal’s contractual relations with third persons that differentiates the agent from the
employee, the servant, and the independent contractor
Importance
- enables a man to increase the range of his individual and corporate activity by enabling him to be
constructively present in many places and to carry on divers activities at the same time
Characteristics
a. principal
b. nominate
c. bilateral
d. preparatory
e. commutative
f. generally onerous
g. fiduciary
Nature – a contract
Basis – representation constitutes the basis of agency
Purpose – to extend the personality of the principal through the facility of the agent
Parties:
a. principal
- he whom the agent represents and from whom he derives authority; he is the one primarily concerned in the contract
b. agent
- he who acts or stands for another
- usually, he is given full or partial discretion, but sometimes he acts under a specific command
Elements of Agency
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d. the agent acts within the scope of his authority
Capacity of an Agent
the same as the law on contracts
- able to bind himself but only insofar as his obligation to his principal is concerned;
- insofar as third persons are concerned, however, it is enough that his principal be the one
capacitated, for generally an agent assumes no personal liability
Distinctions
An agent acts not for himself, but for his principal; a partner acts for himself, for his firm, and for his partners. It
may be even said that partnership is a branch of the law on agency.
An agent may be given funds by the principal to advance the latter’s business, while the borrower is given money for
purposes of his own, and he must generally return it, whether or not his own business is successful. A lot however depends
on the intent of the
parties.
1. The agent represents a capacitated person while the guardian represents an incapacitated person
2. The agent is appointed by the principal and can be removed by the latter while the guardian is appointed by the
court and stands in locos parentis
3. The agent is subject to the directions of the principal while the guardian is not subject to the directions of the ward, but
must of course act for the benefit of the ward.
4. The agent can make the principal personally liable while the guardian has no power to impose personal liability on the
ward.
(1) The agent is appointed by the principal while the judicial administrator (JA) is appointed by the court.
(2) The agent represents the principal while the JA represents not only the court but also the heirs and creditors
of the estate.
(3)Agent generally does not file a bond while the JA files a bond.
(4)The agent is controlled by the principal thru their agreement while the acts of the JA are subject to the specific orders
from the court.
(1)The agent is controlled by the principal while the lease is not controlled by the lessor
(2) The agency may involve things other than property while, obviously, a lease of property involves property only.
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(3) The agent can bind the principal while the lessee, as such, cannot bind the lessor.
1. The agent represents the principal while the lessor of services does not represent his employer
2. relationship can be terminated at the will of either principal or agent while in lease, generally, the relationship
can be terminated only at the will of the both
3. agent exercises discretionary powers while the employee has ministerial functions
4. in agency, it usually involves 3 persons: the principal, the agent, and a stranger while lease of services usually
involves only two persons
NOTE: it should be understood however that an agent may incidentally render acts of service, while a lessor of services
or employee may incidentally make contracts
a. the agent acts under the control of the principal, while the independent contractor is authorized to do the
work according to his own method, without being subject to the other party’s control, except insofar as
the RESULT of the work is concerned
b. the agent of the agent may be controlled by the principal while the employees of the contractor are not
the employees of the employer of the contractor
c. agent can bind the principal while ordinarily, the independent contractor cannot bind the employer by
tort
d. the negligence of the agent is imputable to the principal while the negligence if the independent
contractor is generally not imputable to his employer
a. in agency there is a contract caused by a meeting of the minds, expressly or impliedly while in negotiorum
gestio, there is only a quasi-contract, there having been no meeting of minds. Hence, the representation
was not agreed upon
b. agent is controlled by the principal while the officious manager follows his judgment and the presumed will
of the owner
c. in agency the legal relation is created by the parties while in negotiorum gestio the legal relationship is
created by law (occasioned of course by the acts of the manager)
a. an agent usually holds no title at all while the trustee may hold legal title to the property
b. usually, agent acts in the name of the principal while the trustee may act in his own name
c. usually, agency may be terminated or revoked at any time while the trusty is usually ended by the
accomplishment of the purposes for which it was formed
d. agency may not be connected at all with property while trust involves control over property
e. agent has authority to make contracts which will be binding on his principal while trustee does not
necessarily or even possess such authority to bind the trustor or the cestui que trust
f. agency is really a contractual relation while a trust may be the result of the contract or not: it may be
created also by law
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- principal’s silence
- principal’s lack of action
- principal’s failure to repudiate agency
b. according to form
- oral
- written
c. as to character
gratuitous
- one where the agent receives no compensation for his services
compensated or onerous
- one where the agent receives compensation for his services
e. as to authority conferred
couched in general terms – one which is created in general terms and is deemed to comprise only acts of
administration
couched in specific terms – one authorizing only the performance of a specific act or acts
Form of agency
In general, there are no formal requirements governing the appointment of an agent. The agent’s authority
may be oral or written. It may be in public or private writing.
Agency may even be implied from words and conduct of the parties and the circumstances of the particular
case. But agency cannot be inferred from mere relationship or family ties.
Appointment of agent
It is not essential that an agent be appointed directly by the principal, but the appointment may be made
through another, as by referring an applicant to another and representing that he has authority to act, or the relation
may arise out of an agent to employ the agent of the first party.
An agent appointed by the directors of a corporation to act for the corporation is an agent of the corporation
and not of the directors.
Presumption of agency
General Rule:
- agency is generally not presumed. The relationship between the principal and the agent must exist as a fact.
Exception:
- a presumption of agency may arise, however, in those few cases where an agency may arise by operation of
law or to prevent unjust enrichment
Forms:
a. express
b. implied
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Art. 1871 – Acceptance between persons present
Rules:
Acceptance cannot be implied from the silence of the agent except:
a. transmission of the Power of Attorney by the principal to the agent, who receives it without objection; and
b. principal entrusts to the agent a letter or telegram a Power of Attorney, and he did not reply to the same
Power of Attorney
- an instrument in writing by which one person, as principal, appoints another as his agent and
confers upon him the authority to perform certain specified acts or kinds of acts on behalf of the
principal
- the written authority itself is the power of the attorney and this is clearly indicated by the fact it
has also been called a “letter of attorney.”
Primary Purpose:
- not to define the authority of the agent as between himself and his principal but to evidence the authority of
the agent to the third parties within whom the agent deals; and the person holding the power of attorney is shown and
designated as an “attorney in fact,” thus distinguishing such person from an attorney at law
General Rule: The instrument will be held to grant only those powers which are specified, and the agent may neither go
beyond nor deviate from the power of attorney.
Exception to the Rule: The general rule shall not be applied to the extent of destroying the very purpose of the power.
Rules:
Acceptance of the agency by the agent is not implied from his silence or inaction. Since the agent is not
bound to accept the agency, he can simply ignore the offer.
There are two ways of giving notice of agency with different effects:
1. If by special information (by letter), the person appointed as agent is considered such with
respect to the person to whom it was given.
2. If by public advertisement, the agent is considered as such with regard to any person.
In either case, the agency is deemed to exist whether there is actually an agency or not.
The power of attorney must be revoked in the same manner in which it was given.
If the agency has been entrusted for the purpose of contracting with specified persons, its revocation shall not
prejudice the latter if they were not given notice thereof. If the agent had general powers, revocation of the agency
does not prejudice third persons who acted in good faith and without knowledge of the revocation.
Rule: The authority of the agent shall be in writing in case of sale of a piece of land. Otherwise, the sale is void.
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Art. 1875: Agency presumed to be with compensation
This article changes the rule in the old Civil Code under which an agency was presumed to be gratuitous.
Hence, the agent does not have to prove that the agency is for compensation.
Distinction:
The distinction is based on the scope of the business covered. A General Agency must not be confused with
one couched in general terms which is a special agency when it involves only one or more specific transactions.
As to the extent of the power conferred, agency may be couched in general terms or couched in specific
terms.
An agency couched in general terms may be a general agency or a special agency. It includes only acts of
administration and an express power is necessary to perform any act of strict ownership
35
15 instances:
1. To make payment
2. To effect novation
3. To compromise, etc
4. To waive an obligation gratuitously
5. To convey or acquire immovable
6. To make gifts
7. To loan or borrow money
8. To lease realty for more than 1 year
9. To bind the principal to render service gratuitously
10. To bind the principal in a contract of partnership
11. To obligate principal as guarantor or surety
12. To create or convey real rights over immovable property
An agent authorized to compromise can do anything which the principal himself can do to effect a settlement,
unless there is a contrary legal provision.
A special power to submit to arbitration does not authorize the power to compromise.
note: the power of an agent is also the limitation upon his ability to bind the principal, for it is well settled that an
agent binds his principal only as to acts within his actual or apparent authority
b. as to scope
general rule: the extent of the agent’s authority depends upon the purpose of the agency
- as between the agent and the principal, an act is within the authority of the agent if it is not a violation of his
duty to the principal, and it is within the power if he has the legal ability to bind the p[principal to a third parson although
the act constitutes a violation of his duty to the principal
- so far as third persons are concerned, no distinction exists. An act within the power of the agent is deemed
within the scope of his authority even if the agent has, in fact, exceeded the limits of his authority or he has no authority
whatever to do so
Kinds of authority:
1. actual
2. express
3. implied
4. apparent or ostensible
5. general
6. special
7. authority by necessity or by operation of law
- when it is demanded by virtue of the existence of an emergency; it terminates when the agency has passed
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Requisites when
1. principal is bound by act of agent
a. agent must act within the scope of his authority; and
b. the agent must act in behalf of the principal
a. Disclosed Principal
- if at the time of the transaction contracted by the agent, the other party thereto has known that
the agent is acting for a principal and of the principal’s identity.
- This is the usual type of agency
b. Partially Disclosed Principal
- if the other part knows or has reason to know that the agent is or may be acting for a principal
but is unaware of the principal’s identity.
- The par6tially disclosed partner may enforce against the third person the contract of the agent
like any disclosed principal. Similarly, the third has the right of action against the principal
c. Undisclosed Principal
- if the party has no notice of the fact that the agent is acting as such for a principal
When authorized agent buys in his own name but really in behalf of principal
- seller has the option to look to either for payment unless:
a. he trusted the agent exclusively;
b. by usage and understanding of business, the agent only is held;
c. unless the special circumstances of the case reveal that the agent was intended to be bound and
the seller knew it, or was chargeable with knowledge of it
When authority of agent is doubtful
- the action must be directed against both the principal and “agent”
General obligations
a. Loyalty to his trust agent’s first duty
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b. Obedience to principal’s instruction
c. Exercise of reasonable care
Duty of Owner
a. by appointing an agent
b. by taking charge of the goods
Rule:
- the principal must advance to the agent, should the latter so request, the sums necessary for the execution of
the agency
- the contract on agency, however, may stipulate that the agent shall advance the necessary funds
- in such case, the agent is bound to furnish such funds except when the principal is insolvent
Instruction of principal
- private directions which the principal may give the agent in regard to the manner of performing his duties as
such agent
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Obligation to act in accordance with principal’s instructions
a. sudden emergency
b. ambiguous instructions
c. insubstantial departure
- agent must not carry out the agency if its execution would manifestly result in the loss or damage to the
principal
a. agent should exercise due diligence;
b. agent must presumably act for the benefit, and not to the detriment of the principal
manifestly – means that the execution would damage only the principal
Art. 1889 – Obligation by the agent not to prefer his own interest to those of principal
- the article applies whether the agency is onerous or gratuitous for here the law does not distinguish
b. basis:
- the underlying basis of the rule is to shut the door against temptation and keep the agent’s eye
single to the rights and welfare of his principal
a. if he is expressly empowered to borrow money, he may himself be the lender at the current rate of interest
for there is no danger of the principal suffering any damage since the current rate of interest would have
to be paid in case if the loan were obtained from a third person.
b. If the agent has been authorized to lend money at interest, he cannot be the borrower without the
consent of the principal because the agent may prove to be a bad debtor.
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Duty to render account:
- the article does not apply to cases of solutio indebiti for in such cases, recovery can be had by the payor
against the agent himself. Therefore, the agent meantime can keep what had been given to him by error
a. if the agent or broker acted only as a middleman with the task of merely bringing together the vendor and
the vendee, who themselves thereafter will negotiate on the terms and conditions of the transaction
b. if the agent or broker had informed the principal of the gift or bonus or profit he received from the
purchaser and his principal did not object thereto
c. where the right of lien exists in favor of the agent
Definition of Sub-agent
A person to whom the agent delegates, as his agent, the performance of an act for the principal which the agent has
been empowered to perform through his representative.
Effects of Substitution.
a. When the substitute is appointed by the agent against the express prohibition of the principal, the agent
exceeds the limits of his authority. All acts of the substitute in such case is VOID.
b. If the agent is given the power to appoint a substitute and the principal did not designate any person to be
appointed, the substitution has the effect of releasing the agent from his responsibility unless the person
appointed is notoriously incompetent or insolvent.
c. If the agent appoints a substitute when he was not given the power to appoint one, the substitution is valid if
the same is BENEFICIAL to the principal.
Rule: It is advisable that when a principal hires several agents to act for him, he must define their respective powers –
whether that may act only as a unit or whether they may act separately.
a. The presumption is that an obligation is joint. The rule in 1894 follows the general principle respecting solidarity.
b. If solidarity has been agreed upon, each of the agents becomes solidarily liable:
a. For the non-fulfillment of the agency even though in this case, the fellow agents acted beyond the
scope of their authority; and
b. For the fault or negligence of his fellow agents provided the latter acted within the scope of their
authority.
c. An agent who exceeds his powers does not act as such agent, and therefore, the principal assumes no liability
to third person.
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Art. 1896 – Liability of Agent for Interest
The article is without prejudice to a criminal action that may be brought because of conversion;
On the other hand, there is no liability for interest on sums which have not been converted for the agent’s own use,
unless of course, at the expiration of the agency, the agent still owed the principal certain sums.
Rule: The PRINCIPAL is responsible for the acts of the agent done within the scope of his authority and should bear any
damage caused to third persons.
This article refers only to the liability of the agent towards third persons.
Principal is not bound except if there is subsequent ratification by him.
It is not enough for the agent to act within the scope of his authority. It is also imperative for such agent to have
complied with the orders and instructions of the principal. If the agent is ignorant, the principal is liable.
Ratification in effect grants authority to the agent. The ratification may be in the future. Note also that only the
principal can ratify.
Art. 1902 – Third persons may require the agent to present Power of Attorney or instructions as regards agency.
Third person deals with an agent at his peril. Hence, he is bound to inquire as to the extent of the agent’s
authority, and this is especially true where the act of the agent is of an unusual nature.
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Art. 1905 – Sale by the Commission Agent on Credit.
General Rule: Commission Agent cannot sell on credit.
Exception: When there is an express or implied consent of the Principal.
A commission agent who has made an authorized sale on credit must collect the credits due the principal at
the time they become due and demandable. If he fails to do so, he shall be liable for damages unless he can show that
the credit cannot be collected notwithstanding the exercise of due diligence on his part.
Estoppel is a bar which precludes a person from denying or asserting anything contrary to that which has been
established as the truth by his own deed or representation either express or implied.
When the Principal is in estoppel, therefore innocent third persons should not be prejudiced.
RATIFICATION vs ESTOPPEL
Ratification differs from estoppel mainly in that the former rests on intention, express or implied, regardless of
prejudice to another, whereas estoppel rests on prejudice rather than intention.
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Art. 1912
In the absence of stipulation that the agent shall advance the necessary funds, the principal must advance to
the agent upon his request the sums necessary for the execution of the agency .
Even if the agency is gratuitous,1912 will also apply; hence, the agent will still be entitled to reimbursement
Art. 1913
Obligation of the principal to reimburse agent for damages
Article is based on equity, and applies even if the agency is gratuitous.
Art.1914
Right of agent to retain by way of pledge
-speaks of one kind of pledge—pledge by operation of law
Art.1915
Solidarity liability of principals
Solidarity is the rule under 1915 because of the common transaction (even if the agent have been appointed
separately).
Art.1916
-the article is subject, however, to the rules under art. 1544.
Art. 1917
Liability to third persons of agent or principal who contracts separately
-if agent is in good faith, the principal shall be liable in damages to third persons whose contract must be
rejected.
-agent alone in bad faith is solely responsible
Art.1918
In four cases provided in this article, the principal I not liable for expenses incurred by the agent.
Reasons :
Under no.1, is to punish the agent; for the exception, the acceptance of benefits is implied ratification;
Under no.2, it is self-evident;
Under no.3 the agent is guilty of bad faith and lack of diligence; and
Under no.4, an express stipulation which is not contrary to law, morals, good customs, public order, or public policy is
binding between the parties
a. revocation;
b. withdrawal of the agent;
c. death, civil interdiction, insanity or insolvency of the principal or agent;
43
d. dissolution of the firm or corporation
e. accomplishment of the object or purpose of the agency;
f. expiration of the period
note: presence, capacity, and solvency of parties are essential for continuance of agency
Reason:
- agency is generally irrevocable at the will of the principal because the trust and confidence may have been
lost
Gen. Rule:
- when revocation is proper, the agent cannot get damages because the principal is merely exercising a right
Kinds of revocation
- express or implied
44
a. agent authorized to contract with specified persons
- its revocation will not prejudice such third persons until notice thereof is given to the same
Reason: since the third parties have been made to believe by the principal that the agent is authorized to deal with
them, they have a right to presume that the representation continues to exist in the absence of notification by the
principal
appointment of new agent is an IMPLIED REVOCATION of the previous agency from the day on
which notice was given thereof.
Effect:
a. in case of true inconsistency, the agency is revoked, for there would no lo0nger be any basis therefore
b. another case of implied revocation
Effect:
- the power to revoke is a consequence of the solidary liability of the principals
- any of the principals may revoke without the consent of the others
the general power is impliedly revoked as to matters covered by the special power.
It is indispensable that notice of the revocation be communicated in some way to the agent
Exceptions:
a. when the agency is created not only for the interest of the principal and the agent; and
b. when the agency is created for the mutual interest of both the principal and the agent
Withdrawal by agent
- reasons of health can justify withdrawal
45
a. will not ordinarily permit the continuation of the agency;
b. such a complaint will be equivalent to withdrawal of the agent from the agency
Kinds of withdrawal:
a. without just cause
- the law imposes upon the agent the duty to give due notice to the principal and if the withdrawal is without just cause,
to indemnify the principal should the latter suffer damage by reason of such withdrawal
b. with just cause
- if the withdrawal is with a valid reason, the agent cannot be held liable
Art. 1931 – Nature of agent’s authority after the death of the principal
exceptions:
see duty of agent’s heirs
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