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Twomey on Partnership 2nd edition [Kõva köide]

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  • Formaat: Hardback, 1200 pages, kõrgus x laius: 248x156 mm
  • Ilmumisaeg: 31-Jan-2019
  • Kirjastus: Bloomsbury Professional
  • ISBN-10: 1526504855
  • ISBN-13: 9781526504852
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Twomey on Partnership 2nd editionSuurem pilt
  • Formaat: Hardback, 1200 pages, kõrgus x laius: 248x156 mm
  • Ilmumisaeg: 31-Jan-2019
  • Kirjastus: Bloomsbury Professional
  • ISBN-10: 1526504855
  • ISBN-13: 9781526504852
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Püsilink: https://www.kriso.ee/db/9781526504852.html
Märksõnad:
Comprehensive and highly detailed, Twomey on Partnership, 2nd edition, includes practitioner-focused chapters on disputes between partners, litigation by and against partnerships and a commentary on each of the clauses of a typical partnership agreement. Few areas of law are as similar throughout the common law world as partnership law. This important book analyses not only Irish, English and Scottish partnership cases, but also the rich vein of partnership cases to be found in other common law jurisdictions, and explains how these cases impact upon Irish law.

This new edition has been updated to take account of key Irish cases over the last 17 years, including McAleenan v AIG, Harris v Quigley and Cronin v Kehoe. In addition, it includes analysis of any foreign (particularly English) cases of particular relevance.

A new chapter has been added which deals with the Legal Services Regulation Act 2015 and its provisions on partnerships, including limited liability partnerships.

While the key partnership acts (the Partnership Act 1890, the Limited Partnerships Act 1907 and the Investment Limited Partnerships Act 1994) have not changed to any significant degree since publication of the first edition, the Irish Government has approved changes to the Investment Limited Partnerships Act 1994 and this is dealt with in the book. Other analysis of legislation in the book has been been updated to reflect the changes since the first edition, in particular the material relating to Companies Act 2014.

This title is included in Bloomsbury Professional's Irish Company and Commercial Law online service.

Arvustused

Mr Twomey exhaustively catalogues every permutation of partnership law from its definition, to its terms, to bankruptcy, through limited partnerships and beyond... It covers a gap in the lexicon of Irish legal publications and Mr Twomey deserves kudos for this impressive and timely work. * The Irish Times *

Muu info

Partnership Law has been the definitive guide to the law of partnership in Ireland since the publication of the first edition in 2000.
Foreword to the First Edition v
Preface to the First Edition vii
Acknowledgment to the First Edition ix
Preface to the Second Edition xi
Table of Cases v
Table of Legislation xlv
Part A Nature of a Partnership
Chapter 1 Introduction
I Historical Background
3(7)
Relationship between Partnership Law and Company Law
4(2)
Popularity of Partnerships
6(4)
II Sources of Partnership Law
10(15)
Partnership Legislation
10(5)
Common Law
15(2)
Application of Equitable Principles
17(1)
Position in Northern Ireland
18(1)
Descriptive Terms used in Partnership Law
18(1)
The Future
19(1)
Limited partnership reform?
20(5)
Chapter 2 The Definition and Existence of a Partnership
Introduction
25(1)
Overview
25(2)
I The Definition of a Partnership
27(38)
1 'Relation'
28(8)
2 'which subsists between persons'
36(5)
3 'carrying on'
41(5)
4 'a business'
46(7)
5 'with a view of profit'
53(2)
6 'in common'
55(10)
II Rules for Determining the Existence of a Partnership
65(26)
Main Rule in Determining the Existence of a Partnership
65(2)
Rules in 1890 Act for Determining the Existence of a Partnership
67(24)
Chapter 3 Characteristics of a Partnership
Introduction
91(1)
Overview
91(1)
I The Nature of Partnerships in General
92(11)
Not a Separate Legal Entity
92(4)
Partnership Distinguished from a Company
96(2)
Partnership Distinguished from an EEIG
98(1)
Partnership Distinguished from a Club
98(1)
Partnership Distinguished from a Co-Ownership
99(3)
The Governing Law of a Partnership
102(1)
II Partners and Partnerships in Specific Situations
103(12)
A Partner is not an 'Employee' under Employment Legislation
103(1)
A Partnership is Generally a 'Person'
104(1)
A Partnership may be a 'Consumer'
105(1)
Partners and Firms are 'Undertakings' under the Competition Acts
106(1)
A Partnership cannot be a Bank
106(1)
A Partnership can provide other Regulated Financial Services
106(1)
A Partnership can be authorised as a Trust or Company Service Provider
107(1)
Partnerships as UCITS or Alternative Investment Funds
107(1)
Partnership under the Markets in Financial Instruments Regulations 2017
108(1)
Partnership under the Investment Intermediaries Act 1995
108(1)
Partner Cannot Sue his own Firm
109(1)
The Creation of a Partnership is not a Settlement of Partnership Profits
110(1)
Is a Partnership with two Members a 'Body of Persons'?
110(2)
Status of a Legacy to a Firm
112(1)
Sole Trader Becoming a Partner
112(2)
Partner Becoming a Sole Trader
114(1)
III Status of Firm Name
115(4)
Judgment and Judgment Mortgage may be Obtained in Firm Name
116(1)
Effect on Firm Name of a Change in Partners
117(1)
Effect on Partnership of a Change in Firm Name
118(1)
Use of '& Company' in the Firm Name
118(1)
Firm Name as a Passing Off
119(1)
Entitlement of Partners to use Firm Name after Dissolution
119(1)
IV Registration of Business Names Act 1963
119(9)
Act applies to a 'person to be registered'
120(1)
Obligations under the Registration of Business Names Act
121(5)
Importance of Complying with Registration of Business Names Act
126(2)
V Guarantees Involving Partnerships
128(5)
'any change in the constitution of the firm'
129(1)
'revoked as to future transactions'
129(1)
Status of a Solicitor's Lien
130(3)
Chapter 4 Capacity to be a Partner
Introduction
133(1)
Overview
133(1)
I Minors
134(4)
Minor Partner not Liable for Partnership Obligations
134(2)
Right of Minor Partner to Repudiate Partnership Agreement
136(1)
Minor Partner may affirm Agreement on Reaching Majority
136(2)
No Liability for Holding out by a Minor Partner
138(1)
Minor Partner ought not to be Joined as a Defendant
138(1)
II Companies
138(1)
III Persons who require Assistance in Exercising their Decision-making Capacity, or who Lack the Capacity to make Partnership-related Decisions
139(2)
IV Bankrupts, Arranging Debtors and Insolvent Debtors
141(1)
V Convicts
142(1)
VI Non-Resident Foreign Nationals
142(1)
VII Personal Representatives
143(1)
VIII Partnerships between Spouses and Partnerships between Civil Partners
143(1)
IX Restricted or Disqualified Directors
144(1)
X Size of Partnerships
145(4)
Restriction in Companies Act 2014
145(2)
Avoidance of Prohibition on Large Partnerships
147(1)
Exemption for Large Accountancy and Law Firms
147(2)
Chapter 5 Evidentiary Requirements of Partnership
Introduction
149(1)
Overview
149(1)
I Application of the Statute of Frauds
150(4)
1 'Agreement not to be performed within the space of one year'
150(1)
2 Partnerships involving land
151(1)
3 Guarantees and partnerships
152(1)
Part Performance of a Partnership Agreement
153(1)
II Consideration
154(2)
III Variation of Partnership Agreements
156(5)
Variation does not Affect Validity of Original Agreement
157(1)
Terms of Partnership Agreement Varied by Partnership Accounts
158(1)
Consent of all the Partners Required
158(1)
Care when Partner is Acting Contrary to Terms of Agreement
159(1)
Are New Partners Subject to Previously Agreed Variation?
159(2)
Chapter 6 Types of Partners
Introduction
161(1)
Overview
161(1)
I Dormant Partner
162(5)
Dormant Partner Treated as an Ordinary Partner
162(1)
Different Results in Some Cases
163(3)
Impact of Registration of Business Names Act 1963
166(1)
'Contingent Partner' is not a Dormant Partner
166(1)
II Salaried Partner
167(4)
Use of Term 'Salaried Partner' or 'Salary' is not Conclusive
167(2)
More Difficult to be a Salaried Partner in a Law Firm
169(1)
Salaried Partners Have the Worst of Both Worlds
170(1)
III Fixed Share Partner
171(1)
IV General Partner and Limited Partner
172(1)
V Quasi-Partner
173(1)
VI Partner by Holding Out
173(1)
VII Senior and Junior Partners
173(1)
VIII Precedent Partner
174(3)
Chapter 7 Partner by Holding Out
Introduction
177(1)
Overview
177(2)
I Liability as a Partner by Holding Out
179(2)
Difference between s 36(1) and s 14(1)
180(1)
II Liability under s 14(1)
181(12)
1 There Must be a Holding Out
181(6)
2 There Must be Reliance by the Third Party
187(2)
3 There Must be a Giving of Credit by the Third Party
189(1)
4 A Fourth Requirement - Must there be a Partnership?
190(3)
III Consequences of a Finding of Holding Out
193(2)
Partner by Holding Out is not a Partner Inter Se
193(1)
Holding out Results in a Joint Liability
194(1)
Liability of Firm for Apparent Partner's Acts
194(1)
Minor Partner not Liable as a Partner by Holding Out
195(1)
IV Specific Instances of Holding Out
195(6)
Salaried Partners
195(1)
Replacement Partners
195(1)
Deceased Partner may not be a Partner by Holding Out
196(1)
Former Partners
196(5)
Chapter 8 Types of Partnerships
Introduction
201(1)
Overview
201(1)
I Partnership at Will and Formal Partnership
202(14)
Use of the Term 'Formal Partnership'
203(1)
The Nature of a Partnership at Will
204(1)
The Nature of a Formal Partnership
205(1)
Formal Partnership or Partnership at Will?
206(1)
Fixed Term Partnership becoming a Partnership at Will
207(4)
Consistency of Clauses with a Partnership at Will
211(5)
II Partnership by Deed, by Agreement or Orally
216(1)
III Sub-Partnership
216(1)
Partnership Agreement may Require Modification
217(1)
IV Group Partnership
217(2)
Application of Registration of Business Names Act 1963
218(1)
Application of s 1435(1) of Companies Act 2014
218(1)
Right of Partner in Constituent Firm to Manage Group Partnership
219(1)
Modification of Partnership Agreement
219(1)
V Parallel Partnership
219(2)
VI Firms with Partners in Common
221(1)
VII Corporate Partnership
221(3)
Corporate Partnership between Single Member Companies
222(1)
Entering Partnership must be Intra Vires Corporate Partner
222(1)
Use of Corporate Partner to Facilitate Large Partnerships
222(1)
Modification of Partnership Agreement
223(1)
Charge on Corporate Partnership's Assets
223(1)
Accounts of Corporate Partnerships
223(1)
VIII Quasi-Partnership
224(18)
Meaning of a Quasi-Partnership
224(2)
Characteristics of a Quasi-Partnership
226(5)
Consequence of Treatment as a Quasi-Partnership
231(10)
The Next Frontier - a Quasi-Company?
241(1)
IX Registered Farm Partnerships and Registered Succession Farm Partnerships
242(5)
The partnership agreement
243(4)
Chapter 9 Illegal Partnerships
Introduction
247(1)
Overview
247(1)
I Illegal Partnerships Generally
248(2)
The Intention of the Partners is Relevant
249(1)
Nature of the Illegal Act
249(1)
II Partnerships Illegal under Statute
250(7)
Section 59 of the Solicitors Act 1954
250(4)
Section 1435(1) of the Companies Act 2014
254(3)
Non-statutory Rules
257(1)
III Partnerships Illegal at Common Law
257(1)
Criminal Purpose
257(1)
Contrary to Public Policy
258(1)
IV Consequences of Illegality
258(7)
Automatic Dissolution of Illegal Partnership
258(1)
No Action May be Taken by an Illegal Partnership
259(1)
Actions May be Taken against an Illegal Partnership
259(1)
No Action May be Taken by Members of an Illegal Partnership
259(1)
Illegality Does not Have to be Pleaded
260(1)
Illegal Acts of a Valid Partnership
260(5)
Part B Relations between Partners and Third Parties
Chapter 10 Liability of a Partner for the Acts of his Co-Partners
Introduction
265(1)
Overview
266(2)
I General Principles of a Partner's Liability
268(8)
Partners as Agents
268(2)
The Three Requirements for a Firm to be Bound by the Acts of Partner
270(1)
1 The Act Must be Done by a Partner
270(2)
2 The Act Must be Done qua Partner
272(2)
3 The Act Must be Within the Firm's Ordinary Course of Business
274(2)
II Within the Ordinary Course of Business of a Firm
276(18)
An Act which is Authorised is within the 'ordinary business' of firm
276(2)
Precise Meaning of 'within the ordinary course of business'
278(5)
Express Authority of a Partner
283(1)
Implied Authority of a Partner
284(4)
Ostensible Authority of a Partner
288(4)
Restrictions on Authority of a Partner
292(1)
Authority of a Partner in General
293(1)
III Ratification
294(1)
There Must be Knowledge of the Act to be Ratified
294(1)
The Firm Must have Been in Existence at the Time of the Act
295(1)
IV Specific Instances of Liability under the 1890 Act
295(20)
1 Section 5 of the 1890 Act
296(1)
2 Section 6 of the 1890 Act
297(4)
3 Section 10 of the 1890 Act
301(3)
4 Section 11 of the 1890 Act
304(3)
5 Section 13 of the 1890 Act
307(3)
6 Section 15 of the 1890 Act
310(1)
7 Section 16 of the 1890 Act
310(3)
8 Section 30 of the 1890 Act
313(2)
Chapter 11 Nature and Duration of Liability
Introduction
315(1)
Overview
315(1)
I Nature of a Partner's Liability
316(8)
Extent of Liability
316(1)
Type of Liability
317(4)
Nature of Joint Liability
321(2)
Nature of Joint and Several Liability
323(1)
Partner's Right to Contribution
323(1)
II Duration of a Partner's Liability
324(29)
General Rule
324(1)
1 Partner not Liable for Pre-admission Obligations
325(2)
2 Partner Liable for Obligations Incurred while a Partner
327(5)
3 Partner not Liable for Post-Departure Obligations
332(16)
Right of a Partner to Notify Departure or Dissolution
348(1)
Other Ways of Termination of Liability of a Partner
349(4)
Chapter 12 Litigation by and against Partners
Introduction
353(1)
Overview
353(1)
I Litigation by and against Partnerships
354(17)
General
354(3)
Proceedings in Firm Name
357(2)
Disclosure of Partners' Names
359(1)
Person Carrying on Business in Jurisdiction under Another Name
360(1)
A Partnership as a Defendant
361(10)
II Litigation in Partners' Own Names
371(2)
Where a Change in the Membership of the Firm
372(1)
Service of Proceedings
373(1)
III Set-Off
373(6)
Part C Relations between Partners Inter Se
Chapter 13 Management Rights of Partners
Introduction
379(1)
Overview
379(1)
I The Right to Participate in a Firm's Management
379(4)
Right of Every Partner to Management Participation
379(1)
Management Participation is a Basic Right
380(2)
Position of Large Firms
382(1)
Where Right to Manage is Modified or Excluded
382(1)
Remuneration for Management
383(1)
II The Decision-Making Process
383(8)
Deciding on Ordinary Matters
384(3)
'change may be made in the nature of the partnership business'
387(1)
If not ordinary business nor change in partnership business
388(3)
Chapter 14 Financial Rights of Partners
Introduction
391(1)
Overview
391(1)
I Sharing of Profits and Losses
392(12)
Assumption that all Partners are Equal
392(3)
Income and Capital Profits Treated the Same
395(1)
'share equally in the capital'
395(1)
Equality of Profits is 'subject to any agreement' to the Contrary
395(1)
Meaning of Profits
396(2)
Obligation to Contribute to Losses Equally
398(1)
Income and Capital Losses Treated the Same
399(5)
Civil Liability Act 1961
404(1)
II Outlays and Advances by Partners
404(3)
'ordinary and proper conduct of the business of the firm'
404(2)
'preservation of the business or property of the firm'
406(1)
III Payment by Firm for Services from Partner
407(1)
Prohibition Extends to Allowance for Managing the Firm
407(1)
Prohibition does not Extend to Acting in Firm after Dissolution
407(1)
Prohibition does not Extend to Breach of Duty to Devote Full Time
408(1)
IV Payment of Interest
408(4)
Interest Payable on Capital?
409(1)
Interest Payable on Advances?
410(1)
Interest on Post-Dissolution Profits
411(1)
Interest on a Partnership Account
411(1)
Interest Awarded by a Court
411(1)
V Partnership Books and Accounts
412(9)
No Obligation to File Accounts
412(4)
Implicit Obligation on Partnerships to Keep Accounts
416(1)
Where Certain Partners are Obliged to Keep Accounts
417(1)
Where Partner Refuses to Produce the Firm's Accounts
417(1)
Types of Accounts
417(1)
Access to Partnership Books
418(1)
'when he thinks fit'
418(1)
Partnership Books to be Kept at Place of Business
419(1)
Access to Partnership Accounts
420(1)
Signing of Cheques
420(1)
Chapter 15 Fiduciary Duties of Partners
Introduction
421(1)
Overview
421(1)
I Common Law Instances of Fiduciary Duty
422(10)
Recognition of Fiduciary Duty by the Supreme Court
423(2)
Partner Must Act in Firm's Interest
425(1)
Partner Must Act in Good Faith and not Abuse his Powers
426(1)
Partners Must Treat Each Other as Equals
427(2)
Partners Owe Each Other a Duty of Honesty
429(1)
Other Instances of a Partner's Fiduciary Duty at Common Law
430(2)
II Statutory Instances of Fiduciary Duty
432(11)
1 Duty to Render True Accounts and Full Information
432(2)
2 Duty to Account for Private Profits
434(6)
3 Duty to Account for Profits of a Competing Business
440(3)
4 Duty to Share Post-dissolution Profits
443(1)
III Characteristics of a Partner's Fiduciary Duty
443(8)
Fiduciary Duty may be Excluded by Agreement
444(1)
Fiduciary Duty is Reciprocal
445(1)
Application of Fiduciary Duty to Dissolved Partnerships
445(2)
Application of Fiduciary Duty to Prospective Partnerships
447(1)
Effect of a Breach of a Fiduciary Duty
447(4)
Chapter 16 Partnership Property
Introduction
451(1)
Overview
451(1)
I Determining What is Partnership Property
452(19)
Sections 20(1) and 21 of the 1890 Act
453(1)
Presumption that Property used in Firm's Business is Firm Property
454(8)
Presumption that Property Purchased by Firm is Firm Property
462(4)
Partnership Property v Joint Property of Partners
466(2)
Relevance of Manner in which Property is Registered or Owned?
468(1)
Status of Improvements by a Firm of a Partner's Personal Property
469(2)
Rights of Non-owning Partner to Property used by Partnership
471(1)
II Specific Types of Partnership Property
471(5)
Property Acquired by a Partner in Breach of Fiduciary Duty
471(1)
Files
472(1)
Fees Received after the Technical Dissolution of the Firm
472(1)
Capital Contributions
473(1)
Proceeds of Sale of Partnership Property
473(1)
Company Shareholdings
473(1)
Offices held by Partners
474(1)
Chose in Action
474(1)
Partnership Opportunities
475(1)
Milk Quotas
475(1)
Post-dissolution Letters between Partners
475(1)
III Characteristics of Partnership Property
476(11)
Partnership Property is held as Tenants in Common
476(3)
All Partnership Property is Personal Estate not Real Estate
479(1)
Purpose for which Partnership Property must be Used
480(2)
Position of Third Party Dealing with Property used by Firm
482(1)
Partner may Purchase Property from the Firm
482(1)
What is the Value of Partnership Property?
482(1)
Partnership Property need not be Vested in all the Partners
483(1)
Assets Transferred in and out of Partnership
483(4)
Chapter 17 Partnership Capital
Introduction
487(1)
Overview
487(1)
I The Nature of Capital
488(4)
No Obligation to Contribute to Capital
489(1)
Indirect Capital Contribution
489(1)
Importance of Having a Separate Capital and Current Account
490(1)
Importance of Distinction between Capital and an Advance
491(1)
Increase or Reduction of Capital
491(1)
II Profits of Capital and Losses of Capital
492(5)
Nature of a Capital Profit or a Capital Loss
492(1)
Division of Capital Profits and Losses during Life of Partnership
492(2)
Division of Capital Profits and Losses on a Dissolution
494(3)
Chapter 18 The Goodwill of a Partnership
Introduction
497(1)
Overview
497(1)
I The Nature of Goodwill
498(6)
Goodwill is part of Partnership Property
499(1)
Goodwill can be Partnership Property if Excluded from Accounts
500(1)
Goodwill is not Normally Part of a Firm's Capital
501(1)
Goodwill only exists in Connection with a Business
501(2)
Nature of Purchase Price for Goodwill
503(1)
Express Reference Should be Made to 'Goodwill'
503(1)
II Use of Goodwill after Dissolution
504(9)
Sale of Partnership Business by Partners
505(2)
General Dissolution of the Firm
507(1)
Technical Dissolution of a Firm
508(3)
Applicability of s 29(1) of the 1890 Act
511(1)
Applicability of s 30 of the 1890 Act
512(1)
III Valuation of Goodwill
513(2)
Where Goodwill is Stated to Have a Nil Value
513(1)
Values and Valuation Mechanisms
513(2)
Chapter 19 Shares in a Partnership
Introduction
515(1)
Overview
515(1)
I General Nature of a Partnership Share
516(4)
Position of Partnership Share on a Technical Dissolution
518(1)
Doctrine of Conversion Results from Nature of Partnership Share
519(1)
Partnership Share Creates a Relationship of Tenancy in Common
519(1)
Partnership Share may be Held upon Trust
520(1)
II Assignment of a Partner's Share
520(8)
Assignee's Rights on a Dissolution
523(1)
Assignee takes Share subject to Rights of Partners
523(1)
Section 31 does not Deal with Rights between Assignee and Assignor
524(1)
Assignment of Part only of a Partnership Share
525(1)
Form of Assignment of a Partnership Share
525(1)
Restriction on Right to Assign
526(1)
Modification of s 31 to Allow for a Right of Nomination
526(2)
III Execution against a Partner's Share for His Separate Debts
528(4)
Section 23 of the 1890 Act
529(3)
IV Partner's Lien over Partnership Property
532(5)
Lien Attaches to 'the property of the partnership'
533(1)
Lien Continues on Death or Bankruptcy of a Partner
533(1)
'after deducting what may be due from them as partners'
534(1)
'persons claiming through them in respect of their interests'
534(1)
Loss of Lien
535(1)
Comparison with Lien under S 41(a) of the 1890 Act
535(2)
Chapter 20 Litigation between Partners
Introduction
537(1)
Overview
538(1)
I General 539 Action by Partner Against his own Firm
539(3)
Parties to the Partnership Action
540(1)
Forum for Actions
541(1)
II Action for an Account of Partnership Dealings
542(10)
Persons Entitled to an Account
544(1)
Cases in which Account will be Ordered without a Dissolution
544(1)
Defences to an Action for Account
545(4)
Manner in which Account is Taken
549(3)
Ancillary Matters to the Taking of an Account
552(1)
III Specific Performance
552(3)
No Specific Performance where Damages are an Adequate Remedy
553(1)
Specific Performance of a Partnership at Will
553(1)
Specific Performance of a Formal Partnership
554(1)
Specific Performance in Favour of Third Parties
554(1)
IV Injunctions
555(3)
Initial Reluctance to Grant Injunctions without a Dissolution
556(1)
Injunctions in Dissolution Actions
557(1)
V Receivers and Managers
558(4)
Appointment of a Receiver or Manager
558(2)
Circumstances Justifying Appointment of Receiver or Manager
560(1)
Partner may be Appointed a Receiver or Manager
561(1)
Powers and Liabilities of a Receiver or Manager
562(1)
VI Actions for Misrepresentation
562(3)
Damages for Misrepresentation
563(1)
Rescission
563(2)
Misrepresentation which Induces Dissolution Agreement
565(1)
VII Arbitration
565(4)
Powers of Arbitrator
565(3)
If the Arbitrator Behaves Unfairly
568(1)
Staying of Court Proceedings which are Within Arbitration Clause
568(1)
Arbitrator's Award as a Bar to Court Proceedings
569(1)
VIII Damages
569(2)
IX Where the Court will not Interfere between Partners
571(4)
Reluctance to Grant Remedy in Absence of Dissolution
571(1)
Trivial Disputes between Partners
571(1)
Laches
572(1)
Acquiescence
573(1)
Applicant Partner Must Have 'Clean Hands'
573(1)
Statute of Limitations 1957
574(1)
X Costs of a Partnership Action
575(2)
Chapter 21 The Terms of the Partnership Agreement
Introduction
577(1)
Overview
577(1)
I Interpretation of Partnership Agreements
578(5)
Partnership Agreement is not Exhaustive
580(1)
Partnership Deed interpreted like Partnership Agreement
580(1)
Court refers to other Clauses of Agreement to aid Interpretation
580(1)
Duty of Court to give Full Meaning to Every Word in Agreement
581(1)
Agreement is Interpreted so as to Prevent Abuse of Power
582(1)
Partnership Agreement is subject to Express or Implied Variation
582(1)
Where Partnership Agreement is Executed Containing Blanks
583(1)
II Typical Terms of a Partnership Agreement
583(44)
1 Preliminary Terms
584(6)
2 Partnership Property
590(3)
3 Sharing of Profits and Losses
593(6)
4 Other Financial Rights of Partners
599(4)
5 Partnership Books and Accounts
603(3)
6 Management Rights of Partners
606(5)
7 Retirement, Expulsion and Suspension of a Partner
611(4)
8 Dissolution of the Partnership
615(3)
9 Purchase of a Departing Partner's Share
618(3)
10 Position of a Departing Partner
621(2)
11 Anti-Competitive Provisions
623(2)
12 Final Terms
625(2)
III Where Partners have No Written Agreement
627(4)
Financial Rights
627(1)
Management Rights
627(1)
Duties of Partners
628(1)
Dissolution of the Partnership
628(1)
Implied Terms which may not be Excluded
629(2)
Chapter 22 Anti-Competitive Provisions
Introduction
631(1)
Overview
631(1)
I Competition Law Principles Applicable to Partnerships
632(7)
Anti-Competitive Provisions are Prima Facie Prohibited and Void
632(4)
Market Power of Professional Partnerships
636(1)
Will the Anti-competitive Provision Result in Efficiency Gains?
637(2)
II Anti-Competitive Terms in Partnership Agreements
639(12)
Provision that Existing Partners will not Compete with Firm (Non-compete Restrictions)
640(1)
Each Partner to Devote Full Time and Attention to Firm
641(1)
Notice to Retire and Requirement to Hand over Correspondence
641(1)
Non-compete Restriction on Departing Partner
641(5)
Non-solicit Restriction Implied on Partner Selling his Share
646(1)
Non-compete Provisions on a General Dissolution of the Partnership
647(1)
Restrictions on Withdrawal from Partnerships
648(2)
Non-compete Provisions and Salaried Partners
650(1)
Non-compete Provisions and Incoming Partners
650(1)
III Anti-Competitive Terms in Partnership Sale Agreements
651(5)
Partnership Sale Agreements
651(1)
Non-compete Restriction on Vendor Partners
652(1)
Non-solicitation on Vendor Partners
653(1)
Unlimited Duration Restriction on Use of Firm Name after Sale
654(1)
Restriction on Use/Disclosure of Confidential Information
654(1)
Restriction on Use of Technical Know-how
655(1)
IV Article 101 of the Treaty on the Functioning of the European Union
656(5)
Part D Dissolution of Partnerships
Chapter 23 Causes of Dissolution
Introduction
661(1)
Overview
661(2)
I Concepts Applicable to All Dissolutions
663(1)
General Dissolution v Technical Dissolution
663(1)
General Dissolution may be Avoided by Terms of Agreement
664(1)
II Events which Per Se Cause Dissolution
664(22)
1 Dissolution of a Partnership at Will by Notice
665(5)
2 Dissolution by Death of a Partner
670(3)
3 Dissolution by Bankruptcy of a Partner
673(3)
4 Dissolution by Expiration of a Fixed Term Partnership
676(1)
5 Dissolution by Termination of an Adventure or Undertaking
677(1)
6 Dissolution by Agreement
677(2)
6 Dissolution as a Result of a Charging Order
679(1)
7 Dissolution by Illegality of the Partnership
680(2)
9 Dissolution by Repudiation
682(4)
10 Dissolution by Rescission
686(1)
III Events which do not Per Se Cause Dissolution
686(9)
1 Mental Incapacity of a Partner
687(1)
2 Retirement of a Partner
687(2)
3 Expulsion of a Partner
689(6)
Chapter 24 Death of a Partner
Introduction
695(1)
Overview
695(1)
I Effect of the Death of a Partner
696(5)
Death Prima Facie Dissolves a Partnership
696(2)
No Right of Survivorship on Death of a Partner
698(1)
Surviving Partner is not Entitled to Acquire Deceased Partner's Share
698(2)
Surviving Partner May act on Behalf of Dissolved Firm
700(1)
II Position of Personal Representative
701(9)
No Right of Personal Representative to Become a Partner
701(2)
Right and Duty of Personal Representative to Wind up the Firm
703(2)
Where Personal Representative Allows Share to Remain in Firm
705(3)
Deceased Partner's Share in the Partnership is a Debt
708(1)
Personal Representative Becoming a Partner in his own Right
709(1)
III Liability of Deceased Partner's Estate
710(4)
Obligations Incurred Prior to Death of Partner
710(1)
Not Liable for Obligations Incurred after Death of Partner
711(2)
Position of Separate Creditors of a Deceased Partner
713(1)
IV Position of A Surviving Partner
714(1)
Surviving Partners may use Firm name
714(1)
Actions by Surviving Partners against Deceased's Estate
714(1)
Liability of Surviving Partners
715(1)
V Bequest of a Partnership Share
715(4)
Form of Bequest
716(1)
Share of Deceased Partner in Land is Personalty
716(1)
Legacy to a Partner Whose Firm is Indebted to Testator
717(1)
Legacy to a Person who is Indebted to Testator's Firm
717(1)
Ademption
718(1)
Chapter 25 Dissolution by the Court
Introduction
719(1)
Overview
719(1)
I Section 35 of the 1890 Act
720(8)
'On application by a partner'
721(1)
Partnership at Will
722(1)
'the Court may decree a dissolution'
723(1)
Jurisdiction to Grant Dissolution
723(4)
Date of Dissolution
727(1)
Costs of Dissolution Order
728(1)
Other Statutory Provisions for the Dissolution of Partnerships
728(1)
II Mental Incapacity of a Partner
728(3)
Section 35(a) of the 1890 Act
728(2)
'application ... on behalf of that partner'
730(1)
Effect of s 35(b) on Interpretation of s 35(a)
730(1)
Conflict between Agency Law and Partnership Law
731(1)
III Permanent Incapacity of a Partner
731(2)
'other than the partner suing'
731(1)
Types of Incapacity
732(1)
'permanently incapable'
732(1)
IV Conduct Prejudicial to the Partnership Business
733(1)
'other than the partner suing'
733(1)
'in the opinion of the court'
733(1)
'guilty of such conduct ... calculated'
733(1)
V Wilful or Persistent Breach of the Partnership Agreement
733(2)
First Limb of s 35(d)
734(1)
'other than the partner suing'
734(1)
'wilfully or persistently'
734(1)
Petitioner should not Acquiesce in Misconduct
735(1)
VI Misconduct Rendering Continuance Impractical
735(2)
Second Limb of s 35(d)
735(1)
'other than the partner suing'
735(1)
'relating to the partnership business'
735(1)
Degree of Misconduct
735(2)
VII Partnership Carried on at a Loss
737(1)
Any Partner may Petition
737(1)
'can only be carried on at a loss'
738(1)
VIII Dissolution on Just and Equitable Grounds
738(5)
Refer to s 569(e) of Companies Act 2014
739(1)
Any Partner may Petition?
740(1)
Shifting Onus of Proof in Deadlock Cases
741(1)
Can the business be continued?
741(2)
Chapter 26 Post-Dissolution and Winding Up of a Partnership
Introduction
743(1)
Overview
743(1)
I General Consequences of a Firm's Dissolution
744(7)
Authority of Partner to Publicly Notify Dissolution
744(2)
Authority of Partners to Bind Firm on a Dissolution
746(3)
Effect of Dissolution on Contracts with Employees
749(1)
On a Technical Dissolution, a Former Partner's Share is a Debt
750(1)
Third Parties Dealing with Dissolved Firm
751(1)
II Winding Up of Firm's Business
751(7)
Forced Sale of Partnership Assets
751(4)
Appointment of Receiver
755(1)
Right and Duty of Partners to Wind up Firm
755(3)
III Return of Premiums
758(4)
'the court may order the repayment'
759(1)
'partnership for a fixed term'
759(1)
'unless ... the partnership has been dissolved by an agreement'
759(1)
'otherwise than by the death of a partner'
760(1)
Where Dissolution Arises by Virtue of Bankruptcy
760(1)
'misconduct of partner who paid the premium'
760(1)
Amount of Premium Returned
761(1)
IV Post-Dissolution Profits
762(16)
Calculating a Partner's Share of the Partnership Assets
763(2)
Option 1: 'profits ... attributable to use of his share'
765(5)
Option 2: Claim for Interest under s 42(1)
770(3)
Opting for Post-dissolution Profits rather than Interest
773(1)
When Option under s 42(1) is to be Exercised
774(1)
Where Payment is made, Profits are Paid off First
774(1)
Where only one Continuing Partner
774(1)
Risk on Partner who Continues to Trade
775(1)
Exclusion of Right under s 42(1)
775(3)
V Distribution of Assets
778(5)
'subject to any agreement'
779(1)
Each Stage of s 44(b) Must be Gone Through in Turn
779(1)
Advances v Capital
779(1)
Residue
780(1)
'in the proportion in which they are entitled to share profits'
780(1)
Sharing of Capital Residue or Capital Loss
780(2)
Rule in Garner v Murray
782(1)
Chapter 27 Bankruptcy
Introduction
783(1)
Overview
784(1)
I Winding Up of Firms as Unregistered Companies
785(4)
Winding up of a Partnership under the 1890 Act
785(1)
Winding up of Certain Partnerships under Companies Act 2014
785(2)
Unable to pay its debts
787(2)
Just and Equitable to Wind up the Firm
789(1)
II Bankruptcy Proceedings
789(25)
The Bankruptcy Act 1988
789(1)
The Act of Bankruptcy
790(3)
Bankruptcy Summons
793(1)
Bankruptcy Petition
794(4)
Position of Partners by Holding Out
798(1)
Bankruptcy in Specific Situations
799(1)
Adjudication of Bankruptcy
800(1)
Effect of Adjudication of Bankruptcy
801(13)
III Administration of Firm's and Partners' Estates
814(21)
Joint Estates and Separate Estates
814(10)
Proof Against Joint Estate
824(4)
Proof against Separate Estate
828(4)
Creditors of both Firm and Partners
832(3)
IV Arrangements with Creditors
835(6)
Voluntary Arrangements by Deed
837(4)
Part E Limited Partnerships
Chapter 28 Limited Partnerships
Introduction
841(3)
Historical Perspective
842(1)
The Limited Partnerships Act 1907
843(1)
Overview
844(4)
I Limited Partnerships in General
848(6)
Popularity of Limited Partnerships
848(4)
Application of the Limited Partnerships Act 1907 in Ireland
852(2)
II Nature of a Limited Partnership
854(11)
Requirements of a Limited Partnership
854(1)
Limited Partnership must have Principal Place of Business in State
854(1)
Number of Partners
855(1)
Not a Separate Legal Entity
856(1)
The General and Limited Partners
856(2)
Capacity to be a Limited or a General Partner
858(1)
Limited Partnership must be a Partnership under the 1890 Act
859(1)
Meaning of 'firm', 'firm name' and 'business'
859(3)
Duration of a Limited Partnership
862(3)
Limited Partnership as a Collective Investment Scheme?
865(1)
III Registration of Limited Partnerships
865(8)
'principal place of business'
866(1)
Time of Filing
866(1)
'signed by the partners'
866(1)
Term of Partnership to be Stated
867(1)
Statement of Capital Contributed
867(1)
Effect of Registration
867(1)
Failure to Register in Accordance with the 1907 Act
868(1)
Effect of Incorrect Registration Details
869(1)
Registration of Changes in a Limited Partnership
870(2)
No Power to De-register a Limited Partnership
872(1)
IV Authority of Partners to bind Firm
873(7)
Authority of General Partner to bind the Firm
873(1)
Authority of Limited Partner to bind the Firm
874(6)
V Liability of the Partners in a Limited Partnership
880(9)
Liability of a General Partner
880(3)
Liability of a Limited Partner
883(3)
Loss of Limited Liability by Limited Partner
886(3)
VI Rights of Partners Inter Se
889(2)
Management of the Firm by Limited Partners
889(1)
Management of the Firm by General Partners
889(1)
Admission of New Partners
890(1)
Assignment of a Partner's Share
890(1)
Incoming Limited Partner is subject to Previously Agreed Variation
891(1)
VII Financial Rights of Partners in a Limited Partnership
891(2)
Capital of the Firm
891(1)
Sharing of Profit and Loss of the Firm
892(1)
Filing of Accounts
892(1)
VIII Dissolution Otherwise than by Court
893(3)
Death or Bankruptcy of a Limited Partner
893(2)
General Partner's Share being Charged for Separate Debt
895(1)
Death or Bankruptcy of a Sole General Partner
895(1)
IX Dissolution by Court
896(1)
Section 35 of 1890 Act applies
896(1)
X Winding Up and Bankruptcy
897(4)
Winding Up
897(1)
Bankruptcy
898(3)
Chapter 29 Investment Limited Partnerships
Introduction
901(3)
Overview
904(1)
I General
905(6)
Background
905(1)
Characteristics of an ILP
905(2)
As a Partnership, an ILP is subject to Partnership law
907(1)
ILP is first a Collective Investment Undertaking
907(2)
ILPs and Capital Contributions under Investment Intermediaries Act 1995 and the Markets in Financial Instruments Regulations 2017
909(1)
Popularity of ILPs
910(1)
Recognition of Foreign Limited Partnerships
911(1)
II Nature of an ILP
911(15)
Principal Business of ILP must be Investment in Property
911(1)
At least one General Partner and one Limited Partner
912(2)
The Limited Partner
914(1)
The General Partner
915(1)
No Maximum Number of Partners
916(1)
Not a Separate Legal Entity
916(1)
The ILP Agreement
916(3)
The Name of an ILP
919(2)
The Registered Office of an ILP
921(1)
ILP Must Maintain a Register of Interests
921(1)
ILP Must Appoint an Alternative Investment Fund Manager
922(1)
An ILP Cannot Act as Alternative Investment Fund Manager
922(1)
Duties of the Alternative Investment Fund Manager
922(1)
ILP Must Have Appointed a Custodian
923(2)
No Obligation upon ILP to file Accounts in Companies Registration Office
925(1)
III Authorisation of an ILP
926(8)
Central Bank must be Satisfied as to Competence and Probity
926(1)
Application for Authorisation
927(3)
Where Failure of Central Bank to take a Decision on Authorisation
930(1)
Criteria for Refusal of Authorisation
930(1)
Criteria for Revocation of Authorisation
931(1)
Appeal of Refusal or Revocation of Authorisation
932(1)
Certificate of Authorisation is Conclusive
933(1)
ILP Must Comply with Central Bank's Conditions
933(1)
IV Liability of the Limited Partners
934(4)
Loss of Limited Liability
935(3)
V Authority of the Partners
938(5)
General Partner is Authorised to Bind the Firm
938(1)
Limited Partner is Prohibited from Binding Firm
938(5)
Is ILP Bound by Limited Partner who Conducts Business?
943(1)
VI Rights and Duties of the Partners
943(10)
Rights and Duties of the Limited and General Partners
943(3)
Rights and Duties of the Limited Partners
946(5)
Rights and Duties of the General Partners
951(2)
VII Regulation of ILPs
953(16)
Investment, Borrowing and Related Restrictions
953(1)
Replacement for Cause of a General Partner or Custodian
954(2)
Replacement or Addition of General Partner or Custodian
956(1)
The Custodian
957(4)
The Auditor
961(1)
The Terms of the Prospectus Issued by an ILP
962(1)
Powers and Duties of the Central Bank
963(6)
VIII Termination of ILPs
969(8)
Dissolution of ILPs otherwise than by Court
969(3)
Dissolution of an ILP by Court Order
972(1)
Winding up of an ILP
973(1)
Bankruptcy
974(3)
Chapter 30 LLPs, Legal Partnerships and Multi-disciplinary Practices
Introduction
977(1)
I Background to the 2015 Act
978(4)
Recommendations of Fair Trade Commission
978(1)
Possibility of 'incorporated practices' of solicitors
978(1)
Competition Authority 2006 Report
978(2)
Programme for Government 2011-2016
980(1)
EU/IMF Programme of Financial Support
980(1)
Legal Services Regulation Bill 2011
980(1)
The 2015 Act
980(1)
'Relevant business'
981(1)
A Multi-disciplinary Practice cannot be an LLP
981(1)
Most of the 2015 Act has not yet been Commenced
981(1)
II The Role of the Legal Services Regulatory Authority
982(1)
III Legal Partnerships
983(6)
Consultations and Reports in relation to Legal Partnerships
984(2)
Requirements of the 2015 Act relating to Legal Partnerships
986(3)
IV Limited Liability Partnerships
989(9)
Background
989(1)
Key features of an Irish limited liability partnership
990(4)
Authorisation of Limited Liability Partnerships
994(4)
V Multi-Disciplinary Practices
998(11)
Consultations and Reports
999(3)
Authorisation and Operation of Multi-disciplinary Practices
1002(3)
Day-to-Day Operation of a Multi-disciplinary Practice
1005(4)
Index 1009
Original author:

Michael Twomey is Ireland's leading authority on partnership law. He worked as a solicitor for 25 years before being appointed a Judge of the High Court in 2015. He previously lectured in Trinity College and the Law Society of Ireland.

Revising author:

Maedhbh qualified as a solicitor in 2001, and is Of Counsel with the Finance Group in Arthur Cox. She is responsible for legal, regulatory and commercial awareness; education (internal and client) via training, bespoke legal and regulatory updates and horizon-scanning; client-facing marketing (including the writing and publication of legal and regulatory alerts, and contributing articles and chapters to industry publications); know-how projects; risk management (via the implementation of consistent practices); precedent development and other strategic initiatives. She has significant expertise in the areas of financial services regulation, partnership law, secured lending, loan portfolio sales and securities law.