A general partnership (the basic form of partnership under common law), refers to an association of people or an unincorporated company with the following major features:
- Created by agreement, proof of existence and estoppel.
- Formed by two or more persons
- The owners are all personally liable for any legal actions and debts the company may face
- It is a partnership in which partners share equally in both responsibility and liability.
Partnerships have certain default characteristics relating to both (a) the relationship between the individual partners and (b) the relationship between the partnership and the outside world. The former can generally be overridden by agreement between the partners, whereas the latter generally cannot be done.
The assets of the business in a General Partnership are owned on behalf of the other partners, and all of the General Partners are each personally liable, jointly and severally, for business debts, taxes or tortious liability. For example, if a partnership defaults on a payment to a creditor, the partners’ personal assets are subject to attachment and liquidation to pay the creditor. By default, profits are shared equally amongst the partners. However, a partnership agreement will almost invariably expressly provide for the manner in which profits and losses are to be shared. Each general partner is deemed the agent of the partnership. Therefore, if that partner is apparently carrying on partnership business, all general partners can be held liable for his dealings with third persons. By default a partnership will terminate upon the death, disability, or even withdrawal of any one partner. However, most partnership agreements provide for these types of events, with the share of the departed partner usually being purchased by the remaining partners in the partnership. By default, each general partner has an equal right to participate in the management and control of the business. Disagreements in the ordinary course of partnership business are decided by a majority of the partners, and disagreements of extraordinary matters and amendments to the partnership agreement require the consent of all partners. However, in a partnership of any size the partnership agreement will provide for certain electees to manage the partnership along the lines of a company board. Unless otherwise provided in the partnership agreement, no one can become a member of the partnership without the consent of all partners, though a partner may assign his share of the profits and losses and right to receive distributions (“transferable interest”). A partner’s judgment creditor may obtain an order charging the partner’s “transferable interest” to satisfy a judgment.
Due to the high exposure in personal liability General Partners each have, it is critically important that they take great caution with they documents. LOKK LEGAL can draft, negotiate, revise, and complete any documents to assist these partners limit such personal liability.