Professional Documents
Culture Documents
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6. ID.; ID.; ID.; ID.; ID.; ID.—The civil law and the common
law alike point to a difference between the rights of the
partners who have failed to comply with the law and the
rights of third persons who have dealt with the
partnership.
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MALCOLM, J.:
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"JULIO DÍAZ
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Serie 1919
Libro 2.°.
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us, it would seem that Teck Seing & Co., Ltd. has fulfilled
the provisions of article 119. Moreover, to permit the
creditors only to look to the person in charge of the
management of the association, the partner Lim Yogsing,
would not prove very helpful to them.
What is said in article 126 of the Code of Commerce
relating to the general copartnership transacting business
under the name of all its members or of several of them or
of one only, is wisely included in our commercial law. It
would appear, however, that this provision was inserted
more f or the protection of the creditors than of the
partners themselves. A distinction could well be drawn
between the right of the alleged partnership to institute
action when failing to live up to the provisions of the law,
or even the rights of the partners as among themselves,
and the right of a third person to hold responsible a general
copartnership which merely lacks a legal firm name in
order to make it a partnership de jure.
The civil law and the common law alike seem to point to
a difference between the rights of the partners who have
failed to comply with the law and the rights of third
persons who have dealt with the partnership.
The supreme court of Spain has repeatedly held that
notwithstanding the obligation of the members to register
the articles of association in the commercial registry,
agreements containing all the essential requisites are valid
as between the contracting parties, whatever the form
adopted, and that, while the failure to register in the
commercial registry necessarily precludes the members
from enforcing rights acquired by them against third
persons, such failure cannot prejudice the rights of third
persons. (See decisions of December 6, 1887, January 25,
1888, November 10, 1890, and January 26, 1900.) The
same reasoning would be
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but not as designed to take away the rights of innocent parties who
may have dealt with the offenders in ignorance of their having
violated the statute." (Cashin vs. Pliter [1912], 168 Mich., 386;
Ann. Cas. [1913-C], 697.)
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1698 of the Civil Code only liable jointly. To allow such liberty of
action would be to permit the parties by a violation of the Code to
escape a liability which the law has seen fit to impose upon
persons who organized commercial partnerships; 'Because it
would be contrary to all legal principles that the nonperformance
of a duty should redound to the benefit of the person in default
either intentional or unintentional.' (Mercantile Law, Eixalá,
fourth ed., p. 145.)" (See also Lichauco vs. Lichauco [1916], 33
Phil., 350, 360.)
156
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"Of course, the form required by the Code for the adoption of the
firm name does not prevent the addition thereto of any other title
connected with the commercial purpose of the association. The
reader may see our commentaries on the mercantile registry
about the business names and firm names of associations, but it is
proper to establish here that, while the business name may be
alienated by any of the means admitted by the law, it seems
impossible to separate the firm names of general partnerships
from the juridical entity for the creation of which it was formed."
(Vol. 2, pp. 197, 213.) ,
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