Partnership Law Assignment

Introduction and IssuesThe facts presented present indicate that a coalition has been rate up mingled with three individuals and that thither is a wholeiance symmetry in place to deal with the operation of the business. several(prenominal) fexisting situations pass on arisen and this go a authority direct the checkmates to tang at the reason entered into between the giveies, as well the statutory provender that argon contained in spite of appearance the coalition b give away 1890 (PA). When look at the situations being presented here, it is recognized that in that location is a union agreement in place and this would deal to be seen in its entirety, in order to nominate fully. Based on the above, this discussion grant look at the facts presented and the extract of the agreement, on board the statutory provisions, in order to correspond fin eithery the centering in which the unhomogeneous issues raised can be dealt with. This ordain depend on a crew o f the statutory provisions and some(prenominal)(prenominal)thing that may be in a federation agreement. As the partnership agreement has non been seen, the tail of this advice is that the partnership agreement is in tutelage with the statutory and common jurisprudence provisions. quartette key issues throw been identified and will be discussed in turn. Firstly, thither ar queries in tattle to the electric potential participation of either Tina or Helen, both of whom are related to Andrea and for slightly different reasons she wishes them to be let ind in the partnership. Secondly, there is a question in sexual intercourse to the potential expulsion of Julia from the partnership. Thirdly, a suggested arbitrement article has been requested and is contained below. Finally, there is the query of the obligation of Michael to the provider and his relationship with the partnership and the provider, i.e. whether he was performing as an agent. in that respectfore the suppli er could legitimately bring an consummation against the partnership for the mvirtuosoy owed or the question as to whether Michael would be conceivable face-to-facely.Appointment of Tina and / or HelenThere are duties lay upon partners by virtue of their entering into partnership arrangements. These are stated in the fellowship stage 1890. Firstly, there is the duty to act in the utmost good faith towards the separate partners. Secondly, there is a duty for the partners non to make a individualized advantage and non to place themselves in a position when the interest conflicts with their duty. As there are three partners deep down the received partnership arrangements, a majority i.e. two of the partners would be able to agree the cellular inclusion of a nonher partner. In principle, therefore, if Catherine waits stressed about the proposition, she alone could not throng this appointment. It is however managed, particularly in the role of Tina, that Andrea is perfor ming in breach of her fiducial duties to the partnership by attempting to include Tina, just so that the partnership could remain at heart her family, in the future. There is a punishing argument that putting Tina forward is a conflict of interest and therefore should not be allowed by virtue of the Partnership Act. Therefore, Catherine could present this argument, even if she remains in a minority. The position in relation to Helen is more or lesswhat more complex, as it could be argued to be in the partnerships best interests to recruit a more than needed bookkeeper who is suitably qualified. As it would take care that Andrea and Julia would vote in favour of including Tina and Helen in the partnership, it would accordingly be up to Catherine to argue that Andrea is acting in breach of her duties. It would be considerably easier for Catherine to prove this in the drive of Tina who lookingly has no purpose in the partnership save as to nevertheless Andreas interests. In r eality, however, it would be required to look at the provisions of the partnership agreements, in order to as trustworthy what would get hold in the character of a struggle. The ultimate sanction for a partnership that is no longer tenable is the winding up of the partnership and this may not be desirable to any of the partners (section 26). In that effect, term should be given to any arbitrament of the possibility or the opportunity of one political party to buy another out. It is not clear what provisions are contained inwardly the partnership agreement for this and therefore the rules established in the Partnership Act 1890 prevailed on the partnership, with the danger of being wound up, if no agreement can be reached. It is to a fault notable that, in accordance with clause 20, a reflection of expulsion could be issued upon Andrea stating that she has breached her duties as a partner at heart the partnership. Although Catherine is unhappy with their actions, there is no feature that Julia is insufficiently unhappy that she is likely to be willing to pursue this route, although it does present a potential option in the event that both Catherine and Julia feel sufficiently potently that Andrea is breaching her duties, in attempting to ensure that the partnership rest within her family, in the future.Expulsion of JuliaFirstly, it is noted that, in accordance with section 25 of the 1890 Act, there is no immediate good for the majority to oust a logger partner within the partnership. Therefore, it is prerequisite for Andrea and Catherine to look at the provisions of the partnership agreement, in order to ascertain whether or not they redeem any legitimate way to dispatch Julia, based on novel events. An alternative would be to look at the diarrhoea of the partnership and there are certain conditions within the Act which allow for this, although at this stage it is not perceive to be the desirable route and preferably both Andrea and Catherine are looking towards the clauses within the partnership agreement, in order to expel Julia. An extract of the partnership agreement, namely clause 20, has been provided and it is recognised that there may be additional clauses within the agreement which have not been seen that could impact on the advice given. However, for the purposes of providing this advice, clause 20 will be looked at. It is attainable for the remaining partners to provide a notice in writing to the partner who is in breach of clause 20, terminating their position within the partnership, if the partner acts in a way that is a breach of their duties, or if they have acted in a way that is hostile to good faith between the partners, much(prenominal) notice may be provided. In this case, Julia has been convicted of a criminal offence namely drunk and disorderly behaviour, with a k straightwayledge that Julia is under termination difficult personal circumstances. The question here would therefore be whe ther this assurance is much(prenominal) that it breaches one of the partnership duties, or creates a situation where it cannot be said that Julia is acting in good faith, going forwards. It is suggested that, imputable to Julias current level of distress, there is a strong argument that the prerequisite good faith between the partners has irretrievably been eroded and that clause 20 is then utilised in order to expel Julia from the partnership. In the alternative to taking a litigious approach and given Julias existing unhappiness with the attempted changes from Andrea, a form of settlement may be likely, or arbitration to resolve the situation. It is unclear as to whether these situations are dealt with within the partnership agreement and further investigation is unavoidable to prevent a potential dissolution or battle in relation to the expulsion of Julia. It is, however, concluded that the actions of Julia are sufficiently severe that they could be used in order to expel her.Arbitration articleAs evident above, it would be wise for the partnership agreement to have some form of dispute firmness weapon in place. A suggested wording for such arbitration or dispute resolution mechanism is as follows Except as otherwise provided, any dispute arising out of or in connection with this agreement, including any question regarding its existence, severeness or termination, or the legal relationships established by this agreement, shall be referred to and finally resolved by arbitration under the Rules of the London Court of supranational Arbitration, which Rules are deemed to be incorporated by reference into this clause. (a) The number of arbitrators shall be one. (b) The seat, or legal place, of arbitration shall be London. (c) The speech to be used in the arbitrational proceedings shall be English. (d) The governing impartiality of the contract shall be the substantive law of England and Wales. 33.2 This clause shall be without prejudice to the ri ghts of any party to seek any injunctive or similar relief from the courts to protect its dexterous property rights, confidentiality obligations, restrictions on the activities of any Partner or former Partner or other rights of any description. This offers a dispute resolution mechanism that is both certain and efficient in dealing with such disputes and does not require the dissolution of a partnership unnecessarily.Liability of Michael as divisorFinally, there is the issue of Michael who did not engender a partner who was sufficiently gnarly at the outset that his name has been placed on stationery. The firm purchased equipment from a personal friend of Michael, based on this personal relationship, with the belief that Michael was a partner in the firm. The question here therefore is whether it is sound for the company to be taking action against Michael in person, or whether he was acting as an agent for the firm. Typically, where an individual is acting as an agent between the firm and the supplier and this is known by supplier, it is the firm that would remain entirely liable for any agreement entered into. However, in this case, it would seem that Michael was acting as for an undisclosed principal and the supplier was not aware that they were in fact spotting with the firm, which was a partnership which did not include Michael. The supplier seemingly believed that he was assure directly with Michael as a partner within the firm. When this is the case the third party i.e. the supplier, has a choice as to whether they obligate the contract against the principal, i.e. the firm or the agent, i.e. Michael. The actual discussion or arrangement with Michael is not clear however, it is known that Michael had his name on the stationery used to communicate with the supplier. Therefore, it would seem reasonable to suggest that the supplier would have felt they were dealing with Michael personally or at least as part of the firm. On this basis, and with the fact that the supplier is now concerned about the financial validity of the firm, it would seem likely that the firm is going to look towards Michael personally to be liable for the contract.Conclusions and SummaryThe position within this partnership remains volatile, with three separate partners all of whom have agreed to the partnership agreement, all having disputes of some nature with each other. Fundamentally, however, in accordance with the Partnership Act 1890, it is necessary for each partner to be acting in good faith and to the overall benefit of the partnership and not on their own account. This standard will need to be borne in mind when looking at Andreas proposition of deliverance on board both of her daughters. There is seemingly little argument in favour of the partnership bringing on board Tina however, this is slightly less taken for granted(predicate) with Helen, as she brings necessary skills to the partnership. The majority of the partnership cannot vote to expel an individual, in this case Julia, unless such conditions are contained within the agreement. accord to the extract of the agreement provided, an expulsion is possible where the partner was not acting in good faith. A criminal conviction does not necessarily indicate noxious faith and this would be a numerate of fact to be determined by the two partners looking to expel Julia. Finally, there is a strong argument that Michael, by virtue of the firm stationery and potentially any discussions with the supplier, will be held personally liable, having acted as an agent for an undisclosed principal.BibliographyAtwood v Maule (1868) 3 Ch App 369Blisset v Daniel (1853) 10 lapin 493Partnership Act 1890 section 24 r.7Partnership Act 1890 section 25Maillie v Swanney (2000) SLT 464Morse, G (2010) Partnership Law, Oxford University Press. p.153Sealy, L Hooley, R Commercial Law Text, Cases and Materials, OUP. P.122Watteau v Fenwick, 1893 1 QB 346