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E-raamat: Partnership and LLP Law

Thomas Braithwaite (Barrister, Lincoln's Inn), Geoffrey Morse (Professor of Corporate and Tax Law, University of Birmingham)

Formaat: EPUB+DRM
Ilmumisaeg: 06-May-2020
Kirjastus: Oxford University Press
Keel: eng
ISBN-13: 9780192569158

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Formaat: EPUB+DRM
Ilmumisaeg: 06-May-2020
Kirjastus: Oxford University Press
Keel: eng
ISBN-13: 9780192569158

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This book details the principles of the current law on partnerships, limited partnerships, and limited liability partnerships in an accessible form. It details the formation and nature of partnership including the interface between partners and employees, workers, and creditors in a partnership context. It then looks at how partnership interacts with public regulations. Next it sets out the position regarding contracts and other transactions involving a partnership, followed by consideration of the relationship between partners, including partnership property. Dissolution of, and exiting from, a solvent partnership, precede a chapter on insolvency either of a partner or the firm. Limited partnerships, including the new form, Private Fund Limited Partnerships, are detailed, highlighting the differences from partnerships.

For this new edition, the coverage of limited liability partnerships has been fully revised and expanded. After setting out the background to the legislation and explaining its structure, the book examines the requirements for the creation of LLPs, how they are incorporated, and the consequences of their incorporation as separate legal entities. It explores what membership of an LLP entails, including the interrelation of membership with employment and worker status, and the relations between members and the LLP and between the members themselves. It then looks at the default provisions, the role of the LLP Agreement, and the extent to which contractual doctrines such as repudiation and frustration apply to that agreement. Finally, the book looks at decision-making within an LLP, termination of a member's membership, and insolvency and dissolution of the LLP itself.

Table of Cases

xxi

Table of Legislation

xxxvii

Table of Statutory Instruments

xliii

Table of European Legislation

xlv

List of Abbreviations

xlvii

PART I PARTNERSHIPS

1 Partnerships and Partnership Law

What is a Partnership?

(4)

Limited liability partnerships

(1)

Further developments in Jersey

(1)

Law Commissions' review of partnership law

(1)

Legal Personality and Continuity

(4)

Continuity

(1)

Contractual and statutory problems

(1)

Legal personality in Scotland

(1)

Partnership Law

(3)

Partnership Act 1890

(1)

Common law and equity

(1)

Other relevant statutes

(1)

Essentials of a Partnership

(15)

Relationship with joint ventures

(1)

Business

(1)

Contemplated partnerships

(1)

Self- employment and employees

(1)

Single commercial venture

(1)

Excluded relationships--co-ownership

(1)

Forming a company or LLP

(1)

Carried on in common

(1)

Participation in the business

(1)

Control

(1)

Limited partners

(1)

With a view of profit

(1)

Need for agreement to share profits?

(1)

Gross and net profits

(1)

Partnerships Then and Now

(4)

Partnerships up to 1890

(1)

The growth and development of private companies

(1)

Partnerships today--impact of the LLP

(1)

Partnerships: Variations on a Theme

(4)

Group partnerships

(1)

Extension of fiduciary liabilities

(1)

Identifying a single or multiple firm--multinational firms

(1)

Subpartnerships

(1)

Corporate Partners

(3)

Capacity issues

(1)

Other issues

(1)

The International Dimension--Jurisdiction

(1)

Cases where the Judgments Regulation applies

(1)

Cases where the Judgments Regulation does not apply

2 Establishing a Partnership

Questions and Answers

(4)

Importance of establishing a partnership

(1)

Refining the question

(1)

No requirement for written agreement

(1)

Intentional Partnerships

(8)

The partnership agreement or deed

(1)

Commencement

(1)

Duration--partnerships at will

(1)

Relationship between ss 26 and 32(c)

(1)

Partnership at will following a fixed-term partnership

(1)

Current situation

(1)

Form of notice

(1)

Continuing terms into a partnership at will

(1)

Partnerships by Association

(1)

Association by Financial Involvement

(14)

Profit-sharing as evidence of partnership

(1)

Establishing community of benefit or opposition of interest

(1)

Sharing of losses

(1)

Other factors

(1)

Specific cases

(1)

Remuneration of employees

(1)

Provision for dependants

(1)

Partners or creditors

(1)

Examples

(1)

Need for written agreement

(1)

Sale of goodwill

(1)

Effectiveness of s 2(3)

(1)

Deferred debts (s 3)

(1)

Partnership Liability by Representation

(6)

Need for representation

(1)

Knowingly being represented as a partner

(1)

Need for reliance

(1)

Written notice of being a partner

(1)

True nature of liability

(1)

Partners, Employees, and Workers

(3)

Can a partner also be an employee?

(1)

Can a partner also be a worker?

(1)

Importance of the distinction

(1)

Salaried and Fixed Share Partners

(6)

Growth of salaried and fixed share partners

(1)

Early cases--semi-retirement issues

(1)

Decision in Stekel v Ellice--the modern approach to salaried partners

(1)

Substance not form

(1)

Subsequent cases on salaried partners

(1)

Fixed share partners

(1)

Persons Having Status as a Partner

3 Legal Controls on Partnerships

Public and Private Controls

(3)

Areas of public interest

(1)

Restrictions on three freedoms

(1)

Restrictions on the Freedom to Contract

(2)

Capacity and discrimination

(1)

Illegality

(1)

Restraint-of-trade Clauses

(6)

Assessing the validity

(1)

Medical partnerships

(1)

Solicitors' partnerships

(1)

Decision in Bridge v Deacons

(1)

Bridge v Deacons distinguished

(1)

Enforcement

(1)

Restrictions on Freedom of Association

(1)

Restrictions on Choice of Business Name

(5)

Application of Part 41 of the Companies Act 2006

(1)

Limitations on choice of name

(1)

Disclosure of names of partners

(1)

Passing-off actions

(1)

Partnerships and the Public Domain

(1)

Partnership litigation

(1)

Right of individual partner to sue for wrong done to the partnership

(1)

Right of partner not to be joined as a claimant in partnership action

4 Partners and Outsiders

Potential Problem Areas

(1)

Liability of Partners for Contracts

(21)

Agency concepts

(1)

Types of authority

(1)

Limitations in the agreement

(1)

Ratification

(1)

The implied or usual authority of a partner--s 5

(2)

Applying the s 10 vicarious liability test

(1)

`Kind of business'

(1)

Acts or instruments in the firm name

(1)

Pledging credit

(1)

`In the usual way'

(1)

Modern developments

(1)

Anotherbusiness

(2)

Imputed notice

(1)

Exclusion of implied authority

(1)

Doctrine of the undisclosed principal

(1)

Application to partnership

(1)

Interface with s 5

(1)

Playing word games

(1)

Alternative trust solution

(1)

Liability for Other Wrongs

(2)

Vicarious Liability for Torts, Breaches of Duty, and Crimes 4.24 Ordinary course of business

(11)

Close connection test

(1)

Examples of ordinary course of business

(1)

Personal dealings

(1)

Wrongs within partner's authority

(1)

Limitations on the liability

(1)

Primary liability of wrongdoer

(1)

Wrongs between partners

(1)

Crimes

(1)

Can a firm be convicted of an offence?

(1)

Corporate manslaughter and homicide

(1)

Scottish partnerships

(1)

Liability for Misapplication of Property

(9)

Relationship between ss 10 and 11

(1)

Receipt within apparent authority of partner

(1)

Receipt in course of ordinary business

(1)

Improper employment of trust property in the partnership

(1)

Vicarious liability for dishonest assistance and knowing receipt

(1)

Specific problems with receipts

(1)

Vicarious liability for breaches of express trusts

(1)

Scope of s 13

(1)

Nature of the Liability

(3)

Joint and several liability

(1)

Civil Liability (Contribution) Act 1978

(1)

Liability for costs

(1)

Duration of the Liability

(1)

Effect of a change of partner

(1)

Single continuing contract

(1)

Scottish partnerships

(1)

Novation--English law

(1)

Implied novation

(1)

Guarantees

(1)

Liability for debts incurred after leaving the firm

(1)

Presumption of liability

(1)

Actual notice

(1)

Notice in the Gazette

(1)

Where third party did not know he was a partner

(1)

Summary

5 Partners and Each Other

Contract and Equity

(3)

Fiduciary relationship

(1)

Effect of agreement

(1)

Interaction between contract and equity

(1)

Duty of Care to Each Other

(1)

Assessing the standard of care and skill

(1)

Fiduciary Duties

(5)

Good faith--the fiduciary principle

(1)

Width of the good faith principle

(1)

Limitations on the good faith principle

(1)

Application to prospective partners

(1)

Application to repudiation and dissolution

(1)

Honesty and Full Disclosure

(1)

Conflict of Interest and Duty--Unauthorized Personal Profit

(8)

The `no-profit' and `no-conflict' rules

(1)

Direct profit from partnership transaction

(1)

Use of partnership asset for personal benefit

(1)

Identifying the asset

(1)

Misuse of partnership opportunity

(1)

Analogy with company directors

(1)

Duration of liability

(1)

Errant partner's share of the benefit

(1)

Duty Not to Compete

(1)

Contract: Implied Terms

(1)

Management and Control

(5)

Management rights

(1)

Remuneration--share of the profit

(1)

Majority voting

(1)

Abuse of power

(1)

Access to partnership books

(1)

Financial Affairs

(7)

Principle of equality

(1)

Rebutting the presumption of equality

(1)

Evidential burden

(1)

Losses

(1)

Interest on capital contributions

(1)

Advances

(1)

Indemnities

(1)

Change of Partners

(4)

Implied requirement for unanimous consent

(1)

Contrary intention

(1)

Evidential difficulties

(1)

Conditional clauses

(1)

Expulsion Clauses

(7)

Need for express clause

(1)

Complying with the terms of the clause

(1)

Procedural compliance with the clause

(1)

Application of natural justice

(1)

Abuse of power

(1)

Unreasonableness

(1)

Compulsory retirement

(1)

Assignment of the Partnership Share

(5)

Rights of the assignee whilst the partnership is a going concern

(1)

Rights of the assignee on dissolution

(1)

Entitlement to an account

(1)

Losses

(1)

Charging Orders Against Partners

(1)

Strict interpretation

6 Partnership Property

Problems and Possibilities

(6)

Need to identify partnership property

(1)

Link with insolvency

(1)

Beneficial ownership

(1)

Application of fiduciary duties

(1)

Co-ownership issues

(1)

Doctrine of conversion

(1)

What is Partnership Property?

(1)

Nature and Consequences of a Partner's Interest

(4)

Enforceable only on partial or total dissolution

(1)

Beneficial interest

(1)

Limits on assets capable of being partnership property

(1)

Land held under a trust

(1)

Identifying Partnership Property

(10)

Express or implied agreement--surrounding circumstances

(2)

Use in partnership not always sufficient to create partnership property--business efficacy and necessity

(1)

Farming cases

(1)

Strict construction of agreements

(1)

Property bought with partnership profits

(1)

Purchase of land out of profits made by use of non-partnership land

(1)

Application to improvements

(1)

Contrary intention

(1)

Resulting trusts

(1)

Business Premises: Leases and Licences

(4)

Problems of assignment

(1)

Business tenancies

(1)

Ownership by all partners outside the partnership

(1)

Ownership by one or some partners outside the partnership

(1)

Goodwill: A Note

(1)

Identifying goodwill

(1)

Professional partnerships

(1)

Consequences of a sale of goodwill

(1)

Goodwill as a partnership asset

7 Dissolution and Winding Up

Dissolution

(1)

General and technical dissolutions

(1)

Contractual Grounds for Dissolution

(5)

Implied terms

(1)

Death, bankruptcy, and charging orders

(1)

Contrary intention--s 33(2)

(1)

Express clauses

(1)

Mutual agreement

(1)

Illegality

(1)

Dissolution by the Court

(1)

Grounds for court order

(10)

(a) Mental incapacity

(1)

(b) Permanent incapacity

(1)

(d) Persistent breaches of the agreement

(1)

(e) Carrying on the business at a loss

(1)

(f) Just and equitable ground

(1)

Just and equitable ground--'no fault divorce'

(1)

Application to commercial partnerships

(1)

Ouster clauses

(1)

Frustration of the Partnership Agreement

(1)

Rescission of the Partnership Agreement

(1)

Repudiation of the Partnership Agreement

(3)

Contractual effect of repudiation

(1)

Effect of repudiation on partnership relationship--abandonment/mutuality

(1)

General Dissolutions--Winding Up

(1)

Winding Up by the Existing Partners

(4)

Extent of implied authority

(1)

Effect on contracts of employment

(1)

Duty to wind up

(1)

Partnership Receivers

(6)

Appointing a receiver

(1)

Professional partnerships

(1)

Continuation of business

(1)

Single partner or receiver continuing the business

(1)

Remuneration of a receiver

(1)

Liability of a receiver

(1)

Return of Premiums

(1)

Application of Assets on a Winding Up

(4)

Partners' rights in the assets of the firm

(1)

Powers of the court in respect of the assets

(1)

Realization by sale

(1)

Buy out or Syers v Syers orders

(1)

Technical Dissolutions

(2)

Problem areas

(1)

Liability of Former Partner

(1)

Valuation of a Partner's Share in the Assets

(7)

Capital, assets, and profits

(1)

Valuation method

(1)

Entitlement to market value--the position in Scotland

(1)

Construction of the agreement--the position in England and Wales

(1)

Income profits

(1)

Construction of terms of the agreements

(1)

Law Commissions' proposals

(1)

Partner's Share in Profits etc after Dissolution

(11)

Choice of profits or interest

(1)

Outgoing partner--technical dissolution only

(1)

No application to capital profits

(1)

Post-dissolution income profits

(1)

Attributable to the use of his share of the partnership assets

(1)

Deductions for management by remaining partner(s)

(1)

Adjustments for management etc in relation to share of capital profits

(1)

Interest option in lieu of share of income profits

(1)

No effect on right to capital profits

(1)

Making an election

(1)

Contracting out

(1)

Transfer of Outgoing Partner's Share

(1)

Distribution of Assets--Solvent Partnerships

(1)

Need for final accounts

(1)

Surplus assets and capital losses

(1)

Surplus assets

(1)

Capital losses

8 Partnerships and Insolvency

Possibilities and Problems

(4)

Applicable insolvency law

(1)

Partnership and partner insolvencies

(1)

Bankrupt partner but no petition against the firm

(1)

Winding Up of an Insolvent Partnership Only

(1)

Winding Up of an Insolvent Partnership and Concurrent Bankruptcy of the Partners

(4)

Priority of creditors

(1)

Disqualification from management of a company or LLP

(1)

Joint Bankruptcy Petitions

(1)

Winding Up a Partnership after Separate Bankruptcy Petitions

(1)

Partnership Voluntary Arrangements

(1)

Effect of a partnership voluntary arrangement

(3)

Obtaining a temporary moratorium for `smaller' partnerships

(1)

Partnership Administration Orders

(1)

Purpose of the administration

(1)

Appointment by application to the court

(1)

Exercise of the court's discretion

(1)

Appointment by the partners

(1)

Consequences of an order

(1)

Flexibility of administration

9 Limited Partnerships

Origins and Development of the Limited Partnership

(3)

The 1907 Act

(1)

The reform process

(1)

Limited Partnerships which are not Private Fund Limited Partnerships (sometimes referred to as private limited partnerships)

(12)

Formation

(1)

Registration--reform proposals adopted

(1)

Effectiveness of the certificate of registration--fraudulent applications

(1)

Other requirements

(1)

Limited Partner's Liability

(1)

Possible reforms on capital

(1)

Trading losses

(1)

Failure to contribute agreed sum

(1)

Interference in management

(2)

Other Modifications of Partnership Law

(1)

Derivative actions

(1)

Dissolution

(1)

Private Fund Limited Partnerships

(7)

Definition, registration, and de-registration of a private fund limited partnership

(1)

Interfering in management--permitted activities

(1)

Capital contributions

(1)

Registered particulars, changes, and Gazette notices

(1)

Other modifications on partnership law

(1)

Winding up

(1)

Proposed Reforms to Counter Abuse of the Limited Partnership Form

(1)

Evidence of abuse

(1)

Proposals for reform to counter abuse

PART II LLPs

10 LLPs: An Introduction

A Note on Citation

(1)

What is an LLP?

(1)

The Development of LLPs

(4)

The genesis of the Limited Liability Partnerships Act

(1)

The response to the Act

(1)

Criticisms

(1)

The Legislative Scheme

(3)

The Act

(1)

The regulations

(1)

LLPs, Partnerships, and Companies

11 The Corporate Structure

The Basic Requirements for an LLP

(4)

`Two or more persons'

(1)

`Associated for carrying on'

(1)

`A lawful business with a view to profit'

(1)

The Process of Incorporation

(6)

Name

(1)

Situation and address

(1)

Members' particulars

(1)

Designated members

(1)

Statement of initial significant control

(1)

The Legal Consequences of Incorporation

(12)

Attribution and vicarious liability

(1)

Attribution

(1)

Vicarious liability

(1)

Members' authority

(1)

Apparent authority

(1)

The corporate veil and limited liability

(1)

"Exceptions

(1)

Lifting the veil

(1)

Capacity

(1)

Pre-incorporation contracts and deeds

(1)

Post-incorporation contracts and deeds

(1)

Litigation

(1)

Disclosure obligations

(1)

Display of name

(1)

Notification of membership changes to the Registrar

(1)

The PSC register

(1)

Registration of charges

(1)

Annual confirmation statements

(1)

Records and accounts

12 Membership

Who is a Member?

(7)

Commencement of membership

(1)

The consequences of membership

(1)

Degrees of membership?

(1)

Termination of membership

(1)

`Salaried members'

(1)

Shadow members

(1)

De facto members

(1)

Members and Employees

(3)

Tiffin v Lester AUridge LLP

(1)

Clyde & Co LLP v Bates van Winkelhof

(1)

Members and Workers

(1)

Disqualification from Membership

(1)

Disqualification of LLP members

(1)

Disqualification of company directors

(1)

Grounds for disqualification

(1)

Undischarged bankrupts

13 Rights and Duties of Membership

The Member's Share

(2)

The effect of assignment and bankruptcy on a member's share

(1)

The Sources of Members' Rights and Duties

(4)

The LLP Agreement

(1)

Statutory rights and duties

(1)

Common law and equity

(1)

Members' Fiduciary Duties

(5)

Fiduciary duties between members and the LLP

(1)

Informed consent by the LLP

(1)

Remedies

(1)

Fiduciary duties between members themselves

(1)

Members' Duty of Care to the LLP

(3)

Exclusion of liability

(1)

Relief from liability

(1)

Members' Duties to Third Parties

(3)

Liability for one's own wrongs

(1)

Assumption of responsibility

(1)

Said v Butt

(1)

Members' Duties to Creditors

(1)

Minority Protections

(4)

Unfair prejudice

(1)

Excluding the right

(1)

Quasi-partnerships

(1)

Just and equitable winding up

(1)

Standing of members

(1)

Grounds for relief

(1)

Arbitration and other remedies

14 The LLP Agreement

The Scope of the LLP Agreement

(3)

`Between the members' or `between the LLP and its members'

(1)

Formalities

(1)

Default Provisions

(12)

(1) Right to an equal share in capital and profits

(1)

(2) Right to an indemnity

(1)

(3) Right to manage

(1)

(4) No right to remuneration

(1)

(5) No right to assign

(1)

(6) Majority rule

(1)

(7) Books and records

(1)

(8) Duty to account

(1)

(9) Duty not to compete

(1)

(10) Improper benefit

(1)

(11) Expulsion

(1)

A Duty of Good Faith

(1)

Amending the Agreement

(1)

Remedies for Breach

(1)

Rescission

(3)

Availability of the remedy

(1)

Application of the remedy

(1)

Repudiation

(3)

Flanagan v Liontrust Investment Partners LLP

(1)

Resignation and a claim for damages

(1)

Frustration

15 Decision-Making

The Decision-Making Process

(6)

Ordinary matters connected with the business

(1)

Extra-ordinary matters

(1)

Statutory powers

(1)

Corporate decision-making at common law

(1)

The Duomatic principle

(1)

The Exercise of Discretion

(3)

Good faith and proper purpose

(1)

Rationality

(1)

Natural Justice and Giving Reasons

(6)

Natural justice

(1)

Natural justice in a corporate setting

(1)

Reasons

(1)

The forensic value of procedural propriety

(1)

Statutory rights

(1)

The Consequences of an Unlawful Decision

(1)

Acting outside the scope of the power

(1)

Improper exercise of the power

16 Termination of Membership

Methods of Termination

(6)

`By death or dissolution'

(1)

`Agreement with the other members'

(1)

Abandonment?

(1)

Expulsion

(1)

`Reasonable notice'

(1)

Consequences of Termination

(7)

External consequences

(1)

Internal consequences

(1)

Entidement to profits

(1)

Repayment of capital

(1)

Capital profits and goodwill

(1)

Forfeiture of profits

(1)

Post-Termination Controls

(1)

Covenants in restraint of trade

(1)

Implied restrictions on solicitation?

17 Insolvency and Dissolution

The Insolvency Act Regime

(6)

Voluntary winding up

(1)

Compulsory winding up

(1)

Voluntary arrangements

(1)

Administration

(1)

Receivership

(1)

The LLP in Liquidation

(7)

Contributions by members

(1)

Voluntary contributions: s 74

(1)

Enforced contributions: s 214A

(1)

Claims by members

(1)

Claims to capital

(1)

Claims to profit

(1)

Arrangements and Reconstructions

(3)

Schemes of arrangement

(1)

Cross-border mergers

(1)

Voluntary reconstructions

(1)

Investigations

(1)

Striking Off the Register

(413)

Striking off consequent to winding up

(1)

Striking off by the Registrar

(1)

Bona vacantia

(1)

Restoration

(410)

Index

431

Geoffrey Morse is Professor of Corporate and Tax law at the University of Birmingham. Prior to this he was Professor of Company law at the University of Nottingham from 1988 to 2004.

Thomas Braithwaite is a barrister at Serle Court.

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