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RIGHTS OF ASSIGNEES, (fdsaf, asdfsdf) - Coggle Diagram

- - - - WHEN DISSOLVED:
        ON APPLICATION OF OR FOR A PARTNER
        (DISSOLUTION, NOT EXPULSION) (1831)
        Art. 1831.
        On application by OR for a partner the court shall decree a dissolution whenever:
        
        INSANE/UNSOUND - A partner has been declared insane in any judicial proceeding OR is shown to be of unsound mind;
        
        INCAPACITATED - A partner becomes in any other way incapable of performing his part of the partnership contract;
        
        PREJUDICIAL CONDUCT - A partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business;
        
        WILLFUL/PERSISTENT BREACH - IMPRACTICAL CONDUCT IN BUSINESS - A partner wilfully or persistently commits a breach of the partnership agreement, OR otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him;
        
        CARRIED ON AT A LOSS - The business of the partnership can only be carried on at a loss;
        
        EQUITY - Other circumstances render a dissolution equitable.
        
        HOW TO HAVE DEBTOR PARTNER'S INTEREST SATISFY UNSATISFIED JUDGMENT DEBT
        Article 1814. Without prejudice to the preferred rights of partnership creditors under article 1827,
        [IF]
        
        WHEN: ON DUE APPLICATION - on due application
        
        WHERE: COMEPETENT COURT - to a competent court
        
        WHO: JUDGMENT CREDITOR OFF A PARTNER - by any judgment creditor of a partner,
        
        ANY COURT MAY DECIDE ON THE APPLICATION - the court which entered the judgment, or any other court,
        
        [THEN]
        INTEREST OF DEBTOR PARTNER MAY BE CHARGED WITH PAYMENT OF UNSATISFIED AMOUNT OF JUDGMENT DEBT W/ INTEREST - may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with interest thereon;
        
        CREDITORS PREFERRED OVER PARTNERS
        Article 1827. The creditors of the partnership shall be preferred to those of each partner as regards the partnership property. Without prejudice to this right, the private creditors of each partner may ask the attachment and public sale of the share of the latter in the partnership assets. (n)
        
        COURT MAY ALSO APPOINT RECEIVER OF DEBTOR PARTNER'S SHARE OF THE PROFITS + OTHER DEBTS DUE TO HIM - and may then or later appoint a receiver of his share of the profits, and of any other money due or to fall due to him in respect of the partnership,
        
        COURT MAY ALSO MAKE ORDERS, DIRECTIONS, ACCOUNTS, AND INQUIRIES THAT THE CIRCUMSTANCES REQUIRE
        and make all other orders, directions, accounts and inquiries which the debtor partner might have made, or which the circumstances of the case may require.
        
        INTEREST CHARGED MAY BE
        
        REDEEMED ANY TIME BEFORE FORECLOSURE
        OR
        
        PURCHASED W/O CAUSING DISSOLUTION
        The interest charged may be redeemed at any time before foreclosure, or in case of a sale being directed by the court, may be purchased without thereby causing a dissolution:
        
        REDEEMED/PURCHASED WITH?
        
        SEPARATE PROPERTY - With separate property, by any one or more of the partners; or
        
        PARTNERSHIP PROEPRTY WITH CONSENT - With partnership property, by any one or more of the partners with the consent of all the partners whose interests are not so charged or sold.
        
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        "EQUITY" SO NOT AN EXCLUSIVE LIST
      - WHEN DISSOLVED
        UPON APPLICATION OF PURCHASER(1831)
        On the application of the purchaser of a partner's interest under article 1813 or 1814:
        
        AFTER TERMINATION: IF FOR A TERM OR UNDERTAKING - After the termination of the specified term or particular undertaking;
        
        ANYTIME: IF AT WILL - At any time if the partnership was a partnership at will when the interest was assigned or when the charging order was issued.
    - - IF FRAUD, THEN (all) USUAL REMEDIES
        
        INTERFERE
        
        INFO OR ACCOUNT OF PARTNERSHIP TRANSACTIONS
        
        CAN INPECT BOOKS
      - IF DISSOLUTION, ONLY TO AN ACCOUNT FROM THE DATE OF THE LAST ACCOUNT AGREED TO BY ALL PARTNERS
        Merely entitles the assignee to an account from the date only of the last account agreed to by all the partners
      - IF STIPULATION, THEN ACCORDING TO THE STIPULATION
  - - - EFFECT OF CONVEYING WHOLE INTEREST
        A conveyance by a partner of his whole interest in the partnership does not of itself dissolve the partnership.
      - EXCEPTION: STIPULATION TO THE CONTRARY
      - EXCEPTION: FRAUD
        Entitles the assignee to the [ALL] usual remedies (Interfere, info or account, inspection of books)
      - EXCEPTION: DISSOLUTION
        
        Merely entitles the assignee to an account from the date only of the last account agreed to by all the partners
        
        Entitles assignee to receive assignor's interest
- - - - WITHOUT VIOLATING THE AGREEMENT
        
        WITHOUT VIOLATION OF AGREEMENT
        Article 1830. Dissolution is caused:
        (1) Without violation of the agreement between the partners:
        
        TERMINATION BY DEFINITE TERM OR PARTICULAR UNDERTAKING(a) By the termination of the definite term or particular undertaking specified in the agreement;
        
        IF NO TERM OR UNDERTAKING SPECIFIED, THEN EXPRESS WILL OF ANY PARTNER IN GOOD FAITH
        (b) By the express will of any partner, who must act in good faith, when no definite term or particular is specified;
        
        EXPRESS WILL OF ALL PARTNERS, EITHER BEFORE OR AFTER TERMINATION OF SPECIFIED TERM OR PARTICULAR UNDERTAKING (c) By the express will of all the partners who have not assigned their interests or suffered them to be charged for their separate debts, either before or after the termination of any specified term or particular undertaking;
        
        EXPULSION FROM BUSINESS BONA FIDE BY AGREEMENT(d) By the expulsion of any partner from the business bona fide in accordance with such a power conferred by the agreement between the partners;
        
        What is "expulsion from business bona fide"?
      - IN CONTRAVENTION OF THE AGREEMENT
        
        CAUSES OF DISSOLUTION:
        BY CONTRAVENTION OF AGREEMENT
        Article 1830. Dissolution is caused:
        x x x
        
        EXPRESS WILL IF CIRCUMSTANES DO NOT PERMIT
        (2) In contravention of the agreement between the partners, where the circumstances do not permit a dissolution under any other provision of this article, by the express will of any partner at any time;
        x x x
      - BY OPERATION OF LAW
        
        CAUSES OF DISSOLUTION:
        BY OPERATION OF LAW
        Article 1830. Dissolution is caused:
        x x x
        
        UNLAWFUL TO CARRY ON
        (3) By any event which makes it unlawful for the business of the partnership to be carried on or for the members to carry it on in partnership;
        
        PERISHED BEFORE DELIVERY
        (4) When a specific thing which a partner had promised to contribute to the partnership, perishes before the delivery;
        
        LOST USUFRUCT BEFORE THE PARTNERSHIP OWNS IT
        in any case by the loss of the thing, when the partner who contributed it having reserved the ownership thereof, has only transferred to the partnership the use or enjoyment of the same; but the partnership shall not be dissolved by the loss of the thing when it occurs after the partnership has acquired the ownership thereof;
        
        DEATH
        (5) By the death of any partner;
        
        INSOLVENCY OF ANY PARTNER
        (6) By the insolvency of any partner or of the partnership;
        
        CIVIL INTERDICTION
        (7) By the civil interdiction of any partner;
        
        WHY IS IT THAT THE DEATH OF ONE CAUSES DISSOLUTION?
        Because there is a change in the relations of the partners caused by a partner ceasing to be associated in the carrying on of the business. Remember don't confuse it with termination.
        
        What may be called "automatic" dissolution
      - BY COURT DECREE
        
        CAUSES OF DISSOLUTION:
        BY DECREE OF COURT
        Article 1830. Dissolution is caused:
        x x x
        (8) By decree of court under the following article.
        
        WHEN DISSOLVED BY COURT IF
        UPON APPLICATION OF OR FOR A PARTNER
        (DISSOLUTION, NOT EXPULSION) (1831)
        Art. 1831.
        On application by OR for a partner the court shall decree a dissolution whenever:
        
        INSANE/UNSOUND - A partner has been declared insane in any judicial proceeding OR is shown to be of unsound mind;
        
        INCAPACITATED - A partner becomes in any other way incapable of performing his part of the partnership contract;
        
        PREJUDICIAL CONDUCT - A partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business;
        
        WILLFUL/PERSISTENT BREACH or NOT REASONABLY PRACTICABLE TO CARRY ON BUSINESS WITH PARTNER* - A partner wilfully or persistently commits a breach of the partnership agreement, OR otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him;
        
        CAN ONLY BE CARRIED ON AT A LOSS - The business of the partnership can only be carried on at a loss;
        
        EQUITY - Other circumstances render a dissolution equitable.
      - EFFECTS OF DISSOLUTION
        
        TERMINATION OF MUTUAL AGENCY; EXCEPTIONS
        
        EFFECT OF DISSOLUTION; TERMINATES AUTHORITY
        Article 1832. Except so far as may be necessary to wind up partnership affairs or to complete transactions begun but not then finished, dissolution terminates all authority of any partner to act for the partnership:
        
        WITH RESPECT TO PARTNERS
        DISSOLUTION NOT BY ACT, INSOLVENCY, OR DEATH OF A PARTNER
        (1) With respect to the partners,
        (a) When the dissolution is not by the act, insolvency or death of a partner; or
        
        IN CASE OF SUCH ACT, INSOLVENCY OR DEATH... AS DECLARED IN1833
        (b) When the dissolution is by such act, insolvency or death of a partner, in cases where article 1833 so requires;
        
        WITH RESPECT TO PERSONS NOT PARTNERS, AS DECLARED IN ART. 1834
        (2) With respect to persons not partners, as declared in article 1834. (n)
        
        EFFECT OF DISSOLUTION BY ACT, DEATH OR INSOLVENCY OF A PARTNER
        = EACH PARTNER IS LIABLE TO HIS CO-PARTNERS FOR HIS *SHARE OF ANY LIABILITY CREATED BY SUCH PARTNER ACTING
        Article 1833. Where the dissolution is caused by the act, death or insolvency of a partner, each partner is liable to his co-partners for his share of any liability created by any partner acting for the partnership as if the partnership had not been dissolved unless:
        
        AFTER DISSOLUTION, A PARTNER CAN BIND THE PARTNERSHIP
        Article 1834. After dissolution, a partner can bind the partnership, except as provided in the third paragraph of this article:
        
        BY ANY ACT FOR WINDING UP OR COMPLETING TRANSACTIONS
        (1) By any act appropriate for winding up partnership affairs or completing transactions unfinished at dissolution;
        
        BY ANY TRANSACTION THAT WOULD BIND THE PARTNERSHIP AS IF THERE WAS NO DISSOLUTION, PROVIDED THE OTHER PARTY...:
        (2) By any transaction which would bind the partnership if dissolution had not taken place, provided the other party to the transaction:
        
        A. ...EXTENDED CREDIT TO THE PARTNERSHIP PRIOR TO DISSOLUTION +
        HAD NO KNOWLEDGE/NOTICE OF DISSOLUTION
        (a) Had extended credit to the partnership prior to dissolution and had no knowledge or notice of the dissolution; or
        B. ...NOT EXTENDED CREDIT +
        HAD NO KNOWLEDGE/NOTICE OF DISSOLUTION + DISSOLUTION HAD NOT BEEN ADVERTISED IN NEWSPAPER IN THE PLACE/EACH PLACE
        (b) Though he had not so extended credit, had nevertheless known of the partnership prior to dissolution, and, having no knowledge or notice of dissolution, the fact of dissolution had not been advertised in a newspaper of general circulation in the place (or in each place if more than one) at which the partnership business was regularly carried on.
        
        EFFECT: LIABILITY OF THE PARTNER SHALL BE SATISFIED OUT OF THE PARTNERSHIP ASSETS ALONE WHEN SUCH PARTNER HAD BEEN PRIOR TO DISSOLUTION:
        The liability of a partner under the first paragraph, No. 2, shall be satisfied out of partnership assets alone when such partner had been prior to dissolution:
        
        UNKNOWN AS A PARTNER
        (1) Unknown as a partner to the person with whom the contract is made; and
        
        SO FAR UNKNOWN AND INACTIVE IN PARTNERSHIP AFFAIRS, THE PARTNERSHIP COUzsD NOT BE SAID TO HAVE BEEN IN ANY DEGREE DUE TO HIS CONNECTION WITH IT
        (2) So far unknown and inactive in partnership affairs that the business reputation of the partnership could not be said to have been in any degree due to his connection with it.
        
        WHEN PARNTERS NOT BOUND AFTER DISSOLUTION
        The partnership is in no case bound by any act of a partner after dissolution:
        
        DISSOLVED BECAUSE IT IS UNLAWFUL TO CARRY ON THE BUSINESS, UNLESS ACT IS APPROPRIATE FOR WINDING UP
        (1) Where the partnership is dissolved because it is unlawful to carry on the business, unless the act is appropriate for winding up partnership affairs; or
        
        WHERE THE PARTNER HAS BECOME INSOLVENT
        (2) Where the partner has become insolvent; or
        
        WHERE PARTNER HAS NO AUTHORITY TO WIND UP PARTNERSHIP AFFAIRS: EXCEPT BY TRANSACTION WITH ONE WHO:
        (3) Where the partner has no authority to wind up partnership affairs; except by a transaction with one who -
        
        A. HAD EXTENDED CREDIT PRIOR TO DISSOLUTION + HAD NO KNOWLEDGE/NOTICE OF HIS WANT OF AUTHORITY
        (a) Had extended credit to the partnership prior to dissolution and had no knowledge or notice of his want of authority; or
        B. HAD NOT EXTENDED CREDIT TO PARTNERSHIP PRIOR TO DISSOLUTION + HAVING NO KNOWLEDGE/NOTICE OF HIS LACK OF AUTHORITY + SUCH FACT WAS NOT ADVERTISED
        (b) Had not extended credit to the partnership prior to dissolution, and, having no knowledge or notice of his want of authority, the fact of his want of authority has not been advertised in the manner provided for advertising the fact of dissolution in the first paragraph, No. 2 (b).
        
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        EXCEPTION: IF DISSOLVED BY ACT, KNOWLEDGE
        (1) The dissolution being by act of any partner, the partner acting for the partnership had knowledge of the dissolution; or
        
        EXCEPTION: IF DISSOLVED BY DEATH/INSOLVENCY, KNOWLEDGE OR NOTICE OF SUCH DEATH/INSOLVENCY
        (2) The dissolution being by the death or insolvency of a partner, the partner acting for the partnership had knowledge or notice of the death or insolvency.
        
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        WHAT'S THE DIFFERENCE?
        How is notice different from knowledge?
        
        RIGHT TO WIND UP
        
        SETTLING OF ACCOUNTS/APPLICATION OF PROPERTIES/SHARING OF PROFITS & LOSSES
        
        EFFECTS OF RESCISISON
        
        EFFECTS OF CONTINUATION OF THE BUSIENSS
        
        PRESCRIPTION OF ACTION
        
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        CASES WHEN CREDITORS OF DISSOLVED PARTNERSHIP BECOME CREDITORS OF CONTINUING PERSON/PARTNERSHIP
        Article 1840. In the following cases creditors of the dissolved partnership are also creditors of the person or partnership continuing the business:
        
        NEW PARTNER, RETIRE, ASSIGN, BUSINESS CONTINUED WITHOUT LIQUIDATION
        (1) When any new partner is admitted into an existing partnership, or when any partner retires and assigns (or the representative of the deceased partner assigns) his rights in partnership property to two or more of the partners, or to one or more of the partners and one or more third persons, if the business is continued without liquidation of the partnership affairs;
        
        LONER AMONG RETIREES AND ASSIGNORS
        (2) When all but one partner retire and assign (or the representative of a deceased partner assigns) their rights in partnership property to the remaining partner, who continues the business without liquidation of partnership affairs, either alone or with others;
        
        RETIRE OR DEATH + DISSOLVED + CONTINUED + CONSENT OF RETIREE OR LR OF DECEASED
        (3) When any partner retires or dies and the business of the dissolved partnership is continued as set forth in Nos. 1 and 2 of this article, with the consent of the retired partners or the representative of the deceased partner, but without any assignment of his right in partnership property;
        
        ALL ASSIGN TO THIRD PERSON/S
        (4) When all the partners or their representatives assign their rights in partnership property to one or more third persons who promise to pay the debts and who continue the business of the dissolved partnership;
        
        WRONGFUL DISSOLUTION + CONTINUED + WITHOUT LIQUIDATION
        (5) When any partner wrongfully causes a dissolution and the remaining partners continue the business under the provisions of article 1837, second paragraph, No. 2, either alone or with others, and without liquidation of the partnership affairs;
        
        EXPULSION + CONTINUE + WITHOUT LIQUIDATION
        (6) When a partner is expelled and the remaining partners continue the business either alone or with others without liquidation of the partnership affairs.
        
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        IF RESCINDED B/C OF FRAUD/MISREPRESENTATION
        Article 1838. Where a partnership contract is rescinded on the ground of the fraud or misrepresentation of one of the parties thereto, the party entitled to rescind is, without prejudice to any other right, entitled:
        PARTNER ENTITLED TO RESCIND SHALL BE ENTITLED TO
        
        RIGHT OF RETENTION ON SURPLUS AFTER SATISFYING THIRD PERSONS
        (1) To a lien on, or right of retention of, the surplus of the partnership property after satisfying the partnership liabilities to third persons for any sum of money paid by him for the purchase of an interest in the partnership and for any capital or advances contributed by him;
        
        TO BE SUBROGATED IN THE RIGHTS OF THE CREDITORS
        (2) To stand, after all liabilities to third persons have been satisfied, in the place of the creditors of the partnership for any payments made by him in respect of the partnership liabilities; and
        
        TO BE INDEMNIFIED BY GUILTY PARTNER
        (3) To be indemnified by the person guilty of the fraud or making the representation against all debts and liabilities of the partnership. (n)
        
        SETTLING ACCOUNTS AFTER DISSOLUTION
        Article 1839. In settling accounts between the partners after dissolution, the following rules shall be observed, subject to any agreement to the contrary:
        ASSETS = PP + CONTRIBUTIONS NECESSARY TO PAY ALL LIABILITIES
        (1) The assets of the partnership are:
        (a) The partnership property,
        (b) The contributions of the partners necessary for the payment of all the liabilities specified in No. 2.
        ORDER OF LIABILITIES
        
        CREDITORS
        
        PARTNERS OTHER THAN FOR CAPITAL AND PROFITS
        
        PARTNERS IN RESPECT OF CAPITAL
        
        PARTNERS IN RESPECT OF PROFITS
        (2) The liabilities of the partnership shall rank in order of payment, as follows:
        
        (a) Those owing to creditors other than partners,
        (b) Those owing to partners other than for capital and profits,
        (c) Those owing to partners in respect of capital,
        (d) Those owing to partners in respect of profits.
        
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        LOSSES AND PROFITS ARE DISTRIBUTED IN CONFORMITY WITH AGREEMENT
        Article 1797. The losses and profits shall be distributed in conformity with the agreement.
        
        IF NO AGREEMENT, EACH SHARE = PROPORTIONAL TO EACH CONTRIBUTION
        In the absence of stipulation, the share of each partner in the profits and losses shall be in proportion to what he may have contributed...
        
        IF DESIGNATION OF SHARES WAS ENTRUSTED TO A THIRD PERSON, SUCH DESIGNATION MAY BE IMPUGNED ONLY IF MANIFESTLY INEQUITABLE
        Article 1798. If the partners have agreed to intrust to a third person the designation of the share of each one in the profits and losses, such designation may be impugned only when it is manifestly inequitable.
        
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        INDUSTRIAL PARTNER SHALL NOT BE LIABLE BUT SHALL RECEIVE SUCH SHARE AS MAY BE JUST AND EQUITABLE
        but the industrial partner shall not be liable for the losses. As for the profits, the industrial partner shall receive such share as may be just and equitable under the circumstances.
        
        IF INDUSTRIAL PARTNER CONTRIBUTED CAPITAL, THEN LIABLE TO RECEIVE SHARE IN PROFITS IN PROPORTION TO HIS CAPITAL
        If besides his services he has contributed capital, he shall also receive a share in the profits in proportion to his capital. (1689a)
        
        IF ONLY SHARE WAS AGREED UPON, SHARE OF LOSSES SHALL BE IN SAME PROPORTION
        If only the share of each partner in the profits has been agreed upon, the share of each in the losses shall be in the same proportion.
        
        WHO HAS RIGHT TO WIND UP PARTNERSHIP AFFAIRS
        
        PARTNERS WHO HAVE NOT WRONGFULLY DISSOLVED PARTNERSHIP
        
        LEGAL REPRESENTATIVE OF THE LAST SURVIVING PARTNER
        
        PROVIDED: SUCH PARTNER, LEGAL REPRESENTATIVE, OR ASSIGNEE MAY OBTAIN WINDING UP BY THE COURT UPON CAUSE SHOWN
        Article 1836. Unless otherwise agreed, the partners who have not wrongfully dissolved the partnership or the legal representative of the last surviving partner, not insolvent, has the right to wind up the partnership affairs, provided, however, that any partner, his legal representative or his assignee, upon cause shown, may obtain winding up by the court. (n)
        
        UNLESS OTHERWISE AGREED UPON
    - - DISSOLUTION DOES NOT CAUSE TERMINATION UNTIL WINDING UP OF PARTNERSHIP AFFAIRS IS COMPLETED
        Article 1829. On dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed.
    - - DISTINCTIONS
        
        DISSOLUTION - Dissolution is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on of the business; it is that point of time the partners cease to carry on the business together.
        
        WINDING-UP - Winding up is the process of settling business affairs after dissolution.
        
        TERMINATION - Termination is the point in time after all the partnership affairs have been wound up."
        (Idos v. CA)