Business Law 笔记.docxVIP

Section 5 of the PA defines a partnership as: “the relation which exists between persons carrying on a business in common with a view of profit”.(1) The answer to the question “does a partnership exist?” depends on the actual intention of the parties. 1. The normal practice is for the parties to enter into a written agreement prepared by professional advisers2. In the absence of a written agreement, the parties’ respective intentions surrounding their relationship will be crucial3. A partnership is contractual in nature – a partnership can arise by a formal or simple contract,4. be oral and/or written, or implied from the conduct of the parties.(2)“Carrying on a Business”Definition: There must be a degree of repetition in the parties’ conduct. An isolated act or transaction will not be carrying on a business unless there is either a contrary intention or the parties intend that the act, transaction or venture will be repeated. Smith v Anderson (1880)(3) “In Common”1. Each party acts as an agent for the other. Agency means that each partner acts on behalf of the principal (which is the partnership) and has the power to bind the other partners to his or her actions (e.g. entering a contract). The parties share rights and obligations so that each participant benefits from and is liable for partnership obligations. Kang-Kem v Paine (2004)(4) “With a View of Profit”The Partnership business must have been established with the intention of making a profit. Section 6:Rule 1: Co-ownership of PropertySection 6(1)(a) PA: The joint ownership of property does not itself create a partnership irrespective of whether the owners do or do not share in any profits made by the use of the property or whether the property is held as joint tenants or tenants in common.Rule 2: Sharing of Gross Returns Section 6(1)(b)PA:The sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have an interest in any property which is utilised to obtai