Tiêu đề Law of Partnership, Agency, and Trust by De Leon.pdf ✅

2 PARTNERSHIP (a) Historically, the partnership as a business organiza- tion was used long before the Romans. As early as 2300 B.C., Hammurabi, the famous king of Babylon, in his compilation of the system of laws of that time, provided for the regulation of the relation called partnership. Commercial partnerships of that time were generally for single transactions or under- takings. (b) Following the Babylonian period, we fi nd clear-cut references to partnerships in Jewish law. In this connection, however, it must be remembered that the ancient Jews were a pastoral people, and, therefore, the partnership as a business organization under Jewish law was concerned with the holding of title to land by two or more persons. The Jewish word “shutolin” was used to designate this joint ownership of land. Subsequently, this same word was used to denote the partnership relation. (3) The relative newness of the law of partnership.1 — The partnership as a form of business organization has had a very long history of use. This would suggest that there would be a correspondingly long line of precedents and decisions dealing with this subject. Such is not the case. The explanation for this situation is both clear and understandable. For at least a century after the partnership as a business organization had been well and generally established in British commerce, the English courts of justice had scarcely dealt with this subject. The fact is that disputes between merchants were considered and disposed of by special courts. 1 Blackstone’s commentaries on the law which fi rst appeared in 1765, do not con- tain any discussion on business partnerships. The fact is that partnerships did not have an early start in England. They began in the trading nations of Holland and Italy. The English law of partnerships is an ill-assimilated mixture of Roman Law, of the Law of Merchants, and of the Common Law of England. (Charles W. Gerstenberg, “Organiza- tion and Control” [1919], 3 Modern Business, p. 36.) One should not be surprised to learn, therefore, that the development of the law of partnership in England and the United States, was accompanied with so much confusion and uncertainty that demands for stat- utory uniformity arose. The result in England was Act of 1800, and in the United States, the Uniform Partnership Act and the Uniform Limited Partnership Act. (Wyatt & Wyatt, Business Law Principles and Cases [1963], p. 597.)
3 These special courts were commonly known as Courts Staple, Admiralty Courts, and Courts of Piepoudre. (a) The law of merchants. — This subheading might well be taken to indicate that merchants had a special and peculiar kind of law that was applicable to them and their legal affairs. In fact, such was the case during the Middle Ages. During this time, there were numerous periods of rather intense commercial activity. In England, this activity was centered on so-called fairs or staples at which were gathered merchants from many countries seeking to sell their goods. Partnerships fl ourished during these periods of activity. During this same period, the common law courts of England were thought to be celebrated for their slowness and their methodical exactness of form. The merchants moved more rapidly than the law and they required that justice be more speedy and that it be in general accord with their customs. This background and need gave rise to the special courts mentioned above. (b) English law of partnership. — In time, the use of these special courts was discontinued and their functions were taken over by the law courts. During his term as Chief Justice, Lord Mansfi eld sought to establish a common law for commercial matters. His efforts were directed toward establishing and defi ning the customs of merchants and supplementing this body of law with the applicable principles of the civil law. It was not until the latter years of the 18th century that the law of partnership as we know it today began to assume both form and substance. In 1778, Lord Mansfi eld decided the case of Fox vs. Han- bury (2 Cowp. 445, 98 Eng. Rep. 1179 [1776].) which dealt with the relative rights of partners as well as the rights of partner- ship and separate creditors so far as partnership property was concerned. In 1794, William Watson wrote a text on the subject of partnership. (William Watson, Partnership, Lon- don [1794].) (c) Beginning of law of partnership. — These two sources, speaking most generally, may be said to mark the beginning INTRODUCTION
4 PARTNERSHIP of printed precedents and the publication of the principles of law applicable to partnerships. The increased use of the partnership as a business organization, together with the increase in the complexity of business, generally has brought forth a rapid succession of decisions involving the law of partnerships. (4) American Uniform Acts. — As in the case of sales and negotiable instruments, an attempt has been made to secure uniformity in the United States of state laws dealing with partnership. The Uniform Partnership Act and the Uniform Limited Part- nership Act have been of the utmost importance in helping to achieve uniformity of decisions in this particular fi eld of law. The National Conference of Commissioners on Uniform State Laws fi rst commenced its work in the fi eld of partnership in 1902. It was not until the fall of 1914 that the Conference fi nally agreed upon a draft of a Uniform Partnership Act that was recommend- ed to the legislative bodies of the several states for adoption. The Commissioners’ Prefatory note is quoted in part: “It is, however, proper here to emphasize the fact that there are other reasons in addition to the advantages which will result from uniformity x x x. There is probably no other subject connected with our business law in which greater instances can be found where, in matters of daily occurrence, the law is uncertain. This uncertainty is due not only to confl ict between the decisions of different states but more to the general lack of consistency in legal theory, x x x making the actual administration of the law diffi cult and often inequitable. Another diffi culty of the present partnership law is the scarcity of authority of matters of considerable importance in the daily conduct and in the winding up of partnership affairs. In any one state, it is often impossible to fi nd an authority on a matter of comparatively frequent occurrence, while not infrequently, an exhaustive research of the reports of the decisions of all the states and the federal courts fails to reveal a single authority throwing light on the question.”