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

1 1 PART I TITLE IX PARTNERSHIP (Arts. 1767-1867) INTRODUCTION Brief historical background. (1) Development of partnership. — The earliest form of conducting business was the single entrepreneur ownership plan whereby one individual owned the business, had sole control of the same, reaped all the profi ts, and suffered all the losses. Under this system, the growth of an individual business was limited, owing especially to the limitation of capital and sometimes also to the limitation of skill or knowledge. To permit combinations of capital, or capital and experience, and to secure economy by eliminating some of the overhead costs of individual enterprises, the partnership plan of business association was developed. The partnership may be traced back to ancient history. (T.S. Kerr, Business Law: Principles and Cases, 2nd ed., p. 705.) (2) Ancient origin of partnership as a business organization. — Development, as distinguished from origin, of the partnership as a form of business organization, is often credited to the Romans. They found in this form of business organization a means whereby the capital, goods, talents, and credit of two or more individuals might best be combined to carry on a trade or business. Such trade or business might well have been, and frequently, was too large an undertaking for a single individual.
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.)