THE PARTNERSHIP AS BUSINESS FORM

 Required for formation of contract  General requirements for valid contract  Contractual capacity (minor; companies)  Consensus  Lawfulness (Companies Act; Certain professions)  Performance possible  Formalities

 Joubert v Tarry (1915) – relied on Pothier 1. Contribution Commercial value Money, expertise, usage, goods 2. Profit as object Patrimonial benefit ( also prevent expenses, etc) De Groot: “gemene baat te trekken” Charitable organisations 3. Do business for joint benefit Business = time, labour, atention Patrimonial benefit Right to share in profits Not necessary to share equally Sensible to stipulate in contract sharing of profit 4. Legitimate purpose

Bester v Van Niekerk (1960) Fourth element dropped How do we know whether a partnership was formed?  Joubert v Tarry Facts (Joubert, Gascoyne; Bellevue Colliery; Tarry) Presence of essentialia “Makes no difference what the parties have called it”

 Pezzutto v Dreyer (1992 Court of Appeal) Confirmed the four essentiala Contribution need not be the same; something “appraciable” Business need not be a continuous one (project/venture) If 4 elements are present – partnership – unless intention different Conclusion: 1. Essentiala present 2. Intention of the parties Critique: too much attention on intention and not on associative element

 Proportion in which profits are shared If there is an agreement If there is no agreement  Proportion in which losses are shared Exemption agreement No exemption agreement  Power of representation Agreement No agreement  Compensation for contribution No compensation for contribution – profit sharing  Co-ownership

 Conributions form part of partnership fund Ownership = forms part of partnership property Use = right of use forms part of p/s property  Co-owners of assets of fund in joint undivided shares Size of share depends on agreement /profit/equal 4 books are contributed by four partners Practical importance dissolution or liquidation  Does something form part of partnership fund? (agreement/intention)  3 rd parties = transfer in terms of law of things Constructive delivery

 RESTRICTED USAGE  Partnership asset only use for partnership purpose  Own use = liable towards partnerships  Permission