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The Difference between Partnerships and Private Companies - Assignment Example

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The paper 'The Difference between Partnerships and Private Companies' focuses on Partnerships which can be formally wound up either by the partners or under the Partnership Act 1890. One of the key differences in the way in which a partnership can be wound up…
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The Difference between Partnerships and Private Companies
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Download file to see previous pages In certain circumstances partnerships must be dissolved under the Partnership Act 1890: once a partnership contract is performed – eg it was for a fixed term or for a specific purpose; the death or bankruptcy of a partner; a partner assigns his share to a creditor to satisfy a private debt; any event which makes it unlawful for the firm to continue its business or to have the status of a partnership (s34) (Macintyre, 2005, 464).
Under s35 a partner may seek for dissolution on the basis of one of the following five grounds: permanent disability to perform the partnership contract; conduct prejudicial to the carrying on of the firm; wilful or persistent breach of the agreement which makes it untenable for the other partners to continue the agreement; the firm is making a loss and there is no chance of its finances being turned around; and/or that the Court considers it to be ‘just and equitable’ to dissolve the firm. Under the Mental Health Act 1983, the mental incapacity of a partner can also lead to the dissolution of a partnership. (s34) (Macintyre, 2005, 465).
The partners retain the ability to bind the firm following a dissolution to the extent of completing unfinished transactions and all matters incidental to the winding up of the firm (s38 Partnership Act 1890). An example of this was Re Bourne [1906] 2 Ch 427 where it was held that the surviving partner had the authority to mortgage partnership land following the death of the other partner since the sole reason for doing so was to ensure the efficient winding up of the firm. A bankrupt partner cannot bind a firm following dissolution. However, if a receiver is appointed by the Court at the request of one or more partners, then all partners lose their authority to bind the firm (Macintyre, 2005, 466).
An organization’s assets consist of both property and goodwill. Goodwill can be defined as “the excess of the market value of a business over the value of its individual assets” (Macintyre, 2005, 466).   Once the firm’s goodwill is sold it is unlawful for any partner to use the firm’s name or solicit its customers. ...Download file to see next pagesRead More
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