PARTNERSHIP
CODE - CHAPTERS 1-7
Table of Contents [all chapters of the Partnership Code]
Chapter
1 - Short Title; Definitions; Construction
1. Short
title
2. General definitions
3. Interpretation of knowledge and notice
4. Rules of construction
5. Rules for cases not provided for in this code
Chapter 2 - Nature of Partnership
10. Partnership
defined
11. Rules for determining the existence of a partnership
12. Partnership property
Chapter 3 - Relations of Partners to Person Dealing with the Partnership
20. Partner
agent of partnership as to partnership business
21. Conveyance of real property of the partnership
22. Partnership bound by admission of partner
23. Partnership charged with knowledge of or notice to partner
24. Partnership bound by partner's wrongful act
25. Partnership bound by partner's breach of trust
26. Nature of partner's liability
27. Partner by estoppel
28. Liability of incoming partner
Chapter 4 - Relations of Partners to One Another
40. Rules
determining rights and duties of partners
41. Partnership books
42. Duty of partners to render information
43. Partner accountability as a fiduciary
44. Right to an account
45. Continuation of partnership beyond fixed term
Chapter 5 - Property Rights of a Partner
50. Extent
of property rights of a partner
51. Nature of a partner's right in specific partnership property
52. Nature of partner's interest in the partnership
53. Assignment of partner's interest
54. Partner's interest subject to charging order
Chapter 6 - Dissolution and Winding Up
60. Dissolution
defined
61. Partnership not terminated by dissolution
62. Causes of dissolution
63. Dissolution by decree of court
64. General effect of dissolution on authority of partner
65. Right of partner to contribution from copartners after dissolution
66. Power of partner to bind partnership to third persons after dissolution
67. Effect of dissolution on partner's existing liability
68. Right to wind up
69. Rights of partners to application of partnership property
70. Rights where partnership is dissolved for fraud, or misrepresentation
71. Rules for distribution
71-a. Payment of wages by receivers
72. Liability of persons continuing the business in certain cases
73. Rights of retiring or estate of deceased partner when the business
is continued
74. Accrual of actions
75. Continuance of partnership business during action for accounting
Chapter 7 - Business and Partnership Names
80. When
partnership or business name may be continued
81. Certificate to be filed
82. Fictitious firm names prohibited
Limited Partnerships
CHAPTER 1 - SHORT TITLE; DEFINITIONS; CONSTRUCTION
1. SHORT TITLE
This
chapter shall be known as the "Oneida Indian Nation Partnership
Code."
2. GENERAL DEFINITIONS
As used
in this Code "court" means the Oneida Indian Nation Court;
"Bankrupt"
includes bankrupt under Nation law or the federal bankruptcy act or
insolvent under any state insolvent act;
"Business"
includes every trade, occupation, or profession;
"Clerk"
means the Clerk of the Oneida Indian Nation Court;
"Conveyance"
includes every assignment, lease, mortgage, or encumbrance;
"Foreign
limited liability partnership" means (i) any partnership without
limited partners operating under an agreement governed by the laws of
any jurisdiction, other than the Nation, each of whose partners is a
professional authorized by law to render a professional service within
the territorial jurisdiction of the Nation and who is or has been engaged
in the practice of such profession in such partnership or a predecessor
entity, or will engage in the practice of such profession in the foreign
limited liability partnership within thirty days of the date of the
effectiveness of the notice provided for in subdivision (a) of section
121-1502 of this Code or each of whose partners is a professional, at
least one of whom is authorized by law to render a professional service
within the territorial jurisdiction of the Nation and who is or has
been engaged in the practice of such profession in such partnership
or a predecessor entity, or will engage in the practice of such profession
in the foreign limited liability partnership within thirty days of the
date of the effectiveness of the notice provided for in subdivision
(a) of section 121-1502 of this Code, (ii) any partnership without limited
partners operating under an agreement governed by the laws of any jurisdiction,
other than the Nation, authorized by, or holding a license, certificate,
registration or permit issued by the licensing authority to render a
professional service within the territorial jurisdiction of the Nation,
which renders or intends to render professional services within the
territorial jurisdiction of the Nation and which is denominated as a
registered limited liability partnership or limited liability partnership
under such laws, regardless of any difference between such laws and
the laws of the Nation, or (iii) a foreign related limited liability
partnership; except that all partners of a foreign limited liability
partnership that provides health, professional engineering, land surveying,
architectural and/or landscape architectural services in the Nation
shall be licensed.
"Foreign
professional service limited liability company" has the meaning
given to it in subdivision (a) of section thirteen hundred one of the
Oneida Indian Nation Limited Liability Company Code.
"Foreign
related limited liability partnership" means a partnership without
limited partners operating under an agreement governed by the laws of
any jurisdiction, other than the Nation, which (i) is denominated as
a limited liability partnership or registered limited liability partnership
under such laws, (ii) is not a foreign limited liability partnership
under clause (i) or (ii) of the paragraph defining foreign limited liability
partnership in this section, (iii) is affiliated with a professional
service limited liability company foreign professional service limited
liability company, registered limited liability partnership that is
a professional partnership under this section or a foreign limited liability
partnership under clause (i) or (ii) of the paragraph defining foreign
limited liability partnership in this section, and (iv) renders services
related or complementary to the professional services rendered by, or
provides services or facilities to, such professional service limited
liability company, foreign professional service limited liability company,
registered limited liability partnership or foreign limited liability
partnership. For purposes of this paragraph, such a partnership is affiliated
with a professional service limited liability company, foreign professional
service limited liability company, professional service corporations,
foreign professional service corporation, registered limited liability
partnership or foreign limited liability partnership if (1) at least
a majority of partners in one partnership are partners in the other
partnership, (2) at least a majority of the partners in each partnership
also are partners, hold interests or are members in a limited liability
company or other business entity, and each partnership renders services
pursuant to an agreement with such limited liability company or other
business entity, or (3) the partnerships or the partnership and such
professional service limited liability company, such foreign professional
service limited liability company, are affiliates within the meaning
of paragraph (a) of section nine hundred twelve of the Oneida Indian
Nation Business Corporation Code.
"Licensing
authority" means, for the purposes of this Code, the Sate of New
York.
"Nation"
means the Oneida Indian Nation.
"Oneida
Indian Nation Clerk" and "Nation Clerk" mean the Clerk
of the Oneida Indian Nation.
"Oneida
Indian Nation registered foreign limited liability partnership"
means a foreign limited liability partnership which has filed a notice
pursuant to subdivision (a) of section 121-1502 of this Code that has
not been withdrawn or revoked and which complies with subdivision (1)
of section 121-1502 of this Code.
"Person"
includes individuals, partnerships, corporations, and other associations;
"Profession"
includes any practice as an attorney and counselor-at-law or as a licensed
physician, and those professions designated in title eight of the New
York Education Law.
"Professional"
means an individual duly authorized to practice a profession, a professional
service limited liability company, a foreign professional service limited
liability company, a registered limited liability partnership, a foreign
limited liability partnership, or a professional partnership.
"Professional
partnership" means (1) a partnership without limited partners each
of whose partners is a professional authorized by law to render a professional
service within the Nation, (2) a partnership without limited partners
each of whose partners is a professional, at least one of whom is authorized
by law to render a professional service within the Nation or (3) a partnership
without limited partners authorized by, or holding a license, certificate,
registration or permit issued by the licensing authority to render a
professional service within the Nation.
"Professional
service" means any type of service to the public that may be lawfully
rendered by a member of a profession within the purview of his or her
profession.
"Professional
service limited liability company" means a limited liability company
organized under of the Oneida Indian Nation limited liability company
law.
"Real
property" includes land and any interest or estate in land.
"Registered
limited liability partnership" means a partnership without limited
partners operating under an agreement governed by the laws of the Nation,
registered under section 121-1500 of this Code and complying with section
121-1501 of this Code.
"Related
limited liability partnership" means a partnership without limited
partners operating under an agreement governed by the laws of the Nation,
which (i) is not a professional partnership under this section, (ii)
is affiliated with a professional service limited liability company,
foreign professional service limited liability company, registered limited
liability partnership that is a professional partnership under this
section or a foreign limited liability partnership under clause (i)
or (ii) of the paragraph defining foreign limited liability partnership
in this section, and (iii) renders services related or complementary
to the professional services rendered by, or provides services or facilities
to, such professional service limited liability company, foreign professional
service limited liability company, registered limited liability partnership
or foreign limited liability partnership. For purposes of this paragraph,
such a partnership is affiliated with a professional service limited
liability company, registered limited liability partnership or foreign
limited liability partnership if (1) at least a majority of partners
in one partnership are partners in the other partnership, (2) at least
a majority of the partners in each partnership also are partners, hold
interests or are members in a limited liability company or other business
entity, and each partnership renders services pursuant to an agreement
with such limited liability company or other business entity, or (3)
the partnerships or the partnership and such professional service limited
liability company, such foreign professional service limited liability
company, such professional service corporation, or such foreign professional
service corporation are affiliates within the meaning of paragraph (a)
of section nine hundred twelve of the Oneida Indian Nation Business
Corporation Code.
3. INTERPRETATION OF KNOWLEDGE AND NOTICE
1. A
person has "knowledge" of a fact within the meaning of this
Code not only when he has actual knowledge thereof, but also when
he has knowledge of such other facts as in the circumstances shows
bad faith.
2. A
person has "notice" of a fact within the meaning of this
Code when the person who claims the benefit of the notice:
(a)
States the fact to such person, or
(b)
Delivers through the mail, or by other means of communication, a
written statement of the fact to such person or to a proper person
at his place of business or residence.
4. RULES OF CONSTRUCTION
1. The
rule that statutes in derogation of the common law are to be strictly
construed shall have no application to this Code.
2. The
law of estoppel shall apply under this Code.
3. The
law of agency shall apply under this Code.
4. This
Code shall be not be construed so as to impair the obligations of
any contract existing when the chapter goes into effect, nor to affect
any action or proceedings begun or right accrued before this chapter
takes effect.
5. RULES FOR CASES NOT PROVIDED FOR IN THIS CHAPTER
In any
case not provided for in this Code the rules of law and equity, including
the law of merchant, shall govern.
CHAPTER 2 - NATURE OF A PARTNERSHIP
10. PARTNERSHIP DEFINED
1. A
partnership is an association of two or more persons to carry on as
co-owners a business for profit and includes for all purposes of the
laws of the Nation, a registered limited liability partnership.
2. But
any association formed under any other statute of this Nation, or
any statute adopted by authority, other than the authority of this
Nation, is not a partnership under this chapter, unless such association
would have been a partnership in this Nation prior to the adoption
of this Code; but this Code shall apply to limited partnerships except
in so far as the statutes relating to such partnerships are inconsistent
herewith.
11. RULES FOR DETERMINING THE EXISTENCE OF A PARTNERSHIP
In determining
whether a partnership exists, these rules shall apply:
1. Except
as provided by section twenty-seven, persons who are not partners
as to each other are not partners as to third persons.
2. Joint
tenancy, tenancy in common, tenancy by the entireties, joint property,
common property, or part ownership does not of itself establish a
partnership, whether such CO-owners do or do not share any profits
made by the use of the property.
3. The
sharing of gross returns does not of itself establish a partnership,
whether or not the persons sharing them have a joint or common right
or interest in any property from which the returns are derived.
4. The
receipt by a person of a share of the profits of a business is prima
facie evidence that he is a partner in the business, but no such inference
shall be drawn if such profits were received in payment:
(a)
As a debt by installments or otherwise,
(b)
As wages of an employee or rent to a landlord,
(c)
As an annuity to a surviving spouse or representative of a deceased
partner,
(d)
As interest on a loan, though the amount of payment vary with the
profits of the business,
(e)
As the consideration for the sale of the good-will of a business
or other property by installments or otherwise.
12. PARTNERSHIP PROPERTY
1. All
property originally brought into the partnership stock or subsequently
acquired, by purchase or otherwise, on account of the partnership
is partnership property.
2. Unless
the contrary intention appears, property acquired with partnership
funds is partnership property.
3. Any
estate in real property may be acquired in the partnership name. Title
so acquired can be conveyed only in the partnership name.
4. A
conveyance to a partnership in the partnership name, though without
words of inheritance, passes the entire estate of the grantor unless
a contrary intent appears.
CHAPTER 3 - RELATIONS OF PARTNERS TO PERSONS DEALING
WITH THE PARTNERSHIP
20. PARTNER AGENT OF PARTNERSHIP AS TO PARTNERSHIP BUSINESS
1. Every
partner is an agent of the partnership for the purpose of its business,
and the act of every partner, including the execution in the partnership
name of any instrument, for apparently carrying on in the usual way
the business of the partnership of which he is a member binds the
partnership, unless the partner so acting has in fact no authority
to act for the partnership in the particular matter, and the person
with whom he is dealing has knowledge of the fact that he has no such
authority.
2. An
act of a partner which is not apparently for the carrying on of the
business of the partnership in the usual way does not bind the partnership
unless authorized by the other partners.
3. Unless
authorized by the other partners or unless they have abandoned the
business, one or more but less than all the partners have no authority
to:
(a)
Assign the partnership property in trust for creditors or on the
assignee's promise to pay the debts of the partnership.
(b)
Dispose of the goodwill of the business.
(c)
Do any other act which would make it impossible to carry on the
ordinary business of the partnership.
(d)
Confess a judgment.
(e)
Submit a partnership claim or liability to arbitration or reference.
4. No
act of a partner in contravention of a restriction on his authority
shall bind the partnership to persons having knowledge of the restrictions.
21. CONVEYANCE OF REAL PROPERTY OF THE PARTNERSHIP
1. Where
title to real property is in the partnership name, any partner may
convey title to such property by a conveyance executed in the partnership
name; but the partnership may recover such property unless the partner's
act binds the partnership under the provisions of subdivision one
of section twenty, or unless such property has been conveyed by the
grantee or a person claiming through such grantee to a holder for
value without knowledge that the partner, in making the conveyance,
has exceeded his authority.
2. Where
the title to real property is in the name of the partnership, a conveyance
executed by a partner, in his own name, passes the equitable interest
of the partnership, provided the act is one within the authority of
the partner under the provisions of subdivision one of section twenty.
3. Where
title to real property is in the name of one or more but not all the
partners, and the record does not disclose the right of the partnership,
the partners in whose name the title stands may convey title to such
property, but the partnership may recover such property if the partners'
act does not bind the partnership under the provisions of subdivision
one of section twenty, unless the purchaser or his assignee is a holder
for value, without knowledge.
4. Where
the title to real property is in the name of one or more or all the
partners, or in a third person in trust for the partnership, a conveyance
executed by a partner in the partnership name, or in his own name,
passes the equitable interest of the partnership, provided the act
is one within the authority of the partner under the provisions of
subdivision one of section twenty.
5. Where
the title to real property is in the names of all the partners a conveyance
executed by all the partners passes all their rights in such property.
22. PARTNERSHIP BOUND BY ADMISSION OF PARTNER
An admission
or representation made by any partner concerning partnership affairs
within the scope of his authority as conferred by this chapter is evidence
against the partnership.
23. PARTNERSHIP CHARGED WITH KNOWLEDGE OF OR NOTICE TO PARTNER
Notice
to any partner of any matter relating to partnership affairs, and the
knowledge of the partner acting in the particular matter, acquired while
a partner or then present to his mind, and the knowledge of any other
partner who reasonably could and should have communicated it to the
acting partner, operate as notice to or knowledge of the partnership,
except in the case of a fraud on the partnership committed by or with
the consent of that partner.
24. PARTNERSHIP BOUND BY PARTNER'S WRONGFUL ACT
Where,
by any wrongful act or omission of any partner acting in the ordinary
course of the business of the partnership, or with the authority of
his copartners, loss or injury is caused to any person, not being a
partner in the partnership, or any penalty is incurred, the partnership
is liable therefore to the same extent as the partner so acting or omitting
to act.
25. PARTNERSHIP BOUND BY PARTNER'S BREACH OF TRUST
The partnership
is bound to make good the loss:
1. Where
one partner is acting within the scope of his apparent authority receives
money or property of a third person and misapplies it; and
2. Where
the partnership in the course of its business receives money or property
of a third person and the money or property so received is misapplied
by any partner while it is the custody of the partnership.
26. NATURE OF PARTNER'S LIABILITY
(a) Except
as provided in subdivision (b) of this section, all partners are liable:
1. Jointly
and severally for everything chargeable to the partnership under sections
twenty-four and twenty-five.
2. Jointly
for all other debts and obligations of the partnership; but any partner
may enter into separate obligation to perform a partnership contract.
(b) Except
as provided by subdivisions (c) and (d) of this section, no partner
of a partnership which is a registered limited liability partnership
is liable or accountable, directly or indirectly (including by way of
indemnification, contribution or otherwise), for any debts, obligations
or liabilities of, or chargeable to the registered limited liability
partnership or each other, whether arising in tort, contract or otherwise,
which are incurred, created or assumed by such partnership while such
partnership is a registered limited liability partnership, solely by
reason of being such a partner or acting (or omitting to act) in such
capacity or rendering professional services or otherwise participating
(as an employee, consultant, contractor or otherwise) in the conduct
of the other business or activities of the registered limited liability
partnership.
(c) Notwithstanding
the provisions of subdivision (b) of this section, (i) each partner,
employee or agent of a partnership which is a registered limited liability
partnership shall be personally and fully liable and accountable for
any negligent or wrongful act or misconduct committed by him or her
or by any negligent or wrongful act or misconduct committed by him or
her or by any person under his or her direct supervision and control
while rendering professional services on behalf of such registered limited
liability partnership and (ii) each shareholder, director, officer,
member, manager, partner, employee and agent of a professional service
corporation, professional service limited liability company, foreign
professional service limited liability company, registered limited liability
partnership, foreign limited liability partnership or professional partnership
that is a partner, employee or agent of a partnership which is a registered
limited liability partnership shall be personally and fully liable and
accountable for any negligent or wrongful at or misconduct committed
by him or her or by any person under his or her direct supervision and
control while rendering professional services in his or her capacity
as a partner, employee or agent of professional services in his or her
capacity as a partner, employee or agent of such registered limited
liability partnership. The relationship of a professional to a registered
limited liability partnership with which such professional is associated,
whether as a partner, employee or agent, shall not modify or diminish
the jurisdiction over such professional of the licensing authority and
in the case of an attorney and counselor-at-law or a professional service
limited liability company, foreign professional service limited liability
company, registered limited liability partnership, foreign limited liability
partnership, foreign professional service corporation or professional
partnership, engaged in the practice of law, of the Nation Court.
(d) Notwithstanding
the provisions of subdivision (b) of this section, all specified partners
of a partnership which is a registered limited liability partnership
may be liable in their capacity as partners for all or specified debts
obligations or liabilities of a registered limited liability partnership
to the extent at least a majority of the partners shall have agreed
unless otherwise provided in any agreement between the parties. Any
such agreement may be modified or revoked to the extent at least a majority
of the partners shall have agreed unless otherwise provided in any agreement
between the partners; provided, however, that (i) any such modification
or revocation shall not affect the liability of a partner for any debts,
obligations or liabilities of a registered limited liability partnership
incurred, created or assumed by such registered limited liability partnership
prior to such modification or revocation and (ii) a partner shall be
liable for debts, obligations and liabilities of the registered limited
liability partnership incurred, created or assumed after such modification
or revocation only in accordance with this Code and, if such agreement
is further modified, such agreement as so further modified but only
to the extent not inconsistent with subdivision (c) of this section.
Nothing in this section shall in any way affect or impair the ability
of a partner to act as a guarantor or surety for, provide collateral
for or otherwise be liable for, the debts, obligations or liabilities
of a registered limited liability partnership.
(e) Subdivision
(b) of this section shall not affect the liability of a registered limited
liability partnership out of partnership assets for partnership debts,
obligations and liabilities.
(f) Neither
the withdrawal or revocation of a registered limited liability partnership
pursuant to subdivision (f) or (g), respectively, of section 121-1500
of this Code nor the dissolution, winding up or termination of a registered
limited liability partnership shall affect the applicability of the
provisions of subdivision (b) of this section for any debt, obligation
or liability incurred, created or assumed while the partnership was
a registered limited liability partnership.
27. PARTNER BY ESTOPPEL
1. When
a person, by words spoken or written or by conduct, represents himself,
or consents to another representing him to any one, as a partner in
an existing partnership or with one or more persons not actual partners,
he is liable to any such person to whom such representation has been
made, who has, on the faith of such representation, given credit to
the actual or apparent partnership, and if he has made such representation
or consented to its being made in a public manner he is liable to
such person, whether the representation has or has not been made or
communicated to such person so giving credit by or with the knowledge
of the apparent partner making the representation or consenting to
its being made.
(a)
When a partnership liability results, he is liable as though he
were an actual member of the partnership.
(b)
When no partnership results, he is liable jointly with the other
persons, if any, so consenting to the contract or representation
as to incur liability, otherwise separately.
2. When
a person has been thus represented to be a partner in an existing
partnership, or with one or more persons not actual partners, he is
an agent of the persons consenting to such representation to bind
them to the same extent and in the same manner as though he were a
partner in fact, with respect to persons who rely upon representation.
Where all the members of the existing partnership consent to the representation,
a partnership act or obligation results; but in all other cases it
is the joint act or obligation of the person acting and the persons
consenting to the representation.
28. LIABILITY OF INCOMING PARTNER
A person
admitted as a partner into an existing partnership is liable for all
the obligations of the partnership arising before his admission as though
he had been a partner when such obligations were incurred, except that
his liability shall be satisfied only out of partnership property.
CHAPTER 4 - RELATIONS OF PARTNERS TO ONE ANOTHER
40. RULES DETERMINING RIGHTS AND DUTIES OF PARTNERS
The rights
and duties of the partners in relation to the partnership shall be determined,
subject to any agreement between them, by the following rules:
1. Each
partner shall be repaid his contributions, whether by way of capital
or advances to the partnership property and share equally in the profits
and surplus remaining after all liabilities, including those to partners,
are satisfied; and except as provided in subdivision (b) of section
twenty-six of this Code, each partner must contribute toward the losses,
whether of capital or otherwise, sustained by the partnership according
to his share in the profits.
2. Except
as provided in subdivision (b) of section twenty-six of this Code,
the partnership must indemnify every partner in respect of payments
made and personal liabilities reasonably incurred by him in the ordinary
and proper conduct of its business, or for the preservation of its
business or property.
3. A
partner, who in aid of the partnership makes any payment or advance
beyond the amount of capital which he agreed to contribute, shall
be paid interest from the date of the payment or advance.
4. A
partner shall receive interest on the capital contributed by him only
from the date when repayment should be made.
5. All
partners have equal rights in the management and conduct of the partnership
business.
6. No
partner is entitled to remuneration for acting in the partnership
business, except that a surviving partner is entitled to reasonable
compensation for his services in winding up the partnership affairs.
7. No
person can become a member of a partnership without consent of all
the partners.
8. Any
difference arising as to ordinary matter connected with the partnership
business may be decided by a majority of the partners; but no act
in contravention of any agreement between the partners may be done
rightfully without the consent of all the partners.
41. PARTNERSHIP BOOKS
The partnership
books shall be kept, subject to any agreement between the partners,
at the principal place of business of the partnership, and every partner
shall at all times have access to and may inspect and copy any of them.
42. DUTY OF PARTNERS TO RENDER INFORMATION
Partners
shall render on demand true and full information of all things affecting
the partnership to any partner or the legal representative of any deceased
partner or partner under legal disability.
43. PARTNER ACCOUNTABILITY AS A FIDUCIARY
1. Every
partner must account to the partnership for any benefit, and hold
as trustee for it any profits derived by him without the consent of
the other partners from any transaction connected with the formation,
conduct, or liquidation of the partnership or from any use by him
of its property.
2. This
section applies also to the representatives of a deceased partner
engaged in the liquidation of the affairs of the partnership as the
personal representatives of the last surviving partner.
44. RIGHT TO AN ACCOUNT
Any partner
shall have the right to a formal account as to partnership affairs:
1. If
he is wrongfully excluded from the partnership business or possession
of its property by his copartners,
2. If
the right exists under the terms of any agreement,
3. As
provided by section forty-three,
4. Whenever
other circumstances render it just and reasonable.
45. CONTINUATION OF PARTNERSHIP BEYOND FIXED TERM
1. When
a partnership for a fixed term or particular undertaking is continued
after the termination of such term or particular undertaking without
any express agreement, the rights and duties of the partners remain
the same as they were at such termination, so far as is consistent
with a partnership at will.
2. A
continuation of the business by the partners or such of them as habitually
acted therein during the term, without any settlement or liquidation
of the partnership affairs, is prima facie evidence of a continuation
of the partnership.
CHAPTER 5 - PROPERTY RIGHTS OF A PARTNER
50. EXTENT OF PROPERTY RIGHTS OF A PARTNER
The property
rights of a partner are (a) his rights in specific partnership property,
(b) his interest in the partnership, and (c) his right to participate
in the management.
51. NATURE OF A PARTNER'S RIGHT IN SPECIFIC PARTNERSHIP PROPERTY
1. A
partner is co-owner with his partners of specific partnership property
holding as a tenant in partnership.
2. The
incidents of this tenancy are such that:
(a)
A partner, subject to the provisions of this chapter and to any
agreement between partners, has an equal right with his partners
to possess specific partnership property for partnership purposes;
but he has no right to possess such property for any other purpose
without the consent of his partners.
(b)
A partner's right in specific partnership property is not assignable
except in connection with the assignment of the rights of all the
partners in the same property.
(c)
A partner's right in specific partnership property is not subject
to attachment or execution, except on a claim against the partnership.
When partnership property is attached for a partnership debt the
partners, or any of them, or the representatives of a deceased partner,
cannot claim any right under homestead or exemption laws.
(d)
On the death of a partner his right in specific partnership property
vests in the surviving partner or partners, except where the deceased
was the last surviving partner, when his right is such property
vests in his legal representative. Such surviving partner or partners,
or the legal representative of the last surviving partner, has no
right to possess the partnership property for any but a partnership
purpose.
(e)
A partner's right in specific partnership property is not subject
to dower, curtesy, or allowances to surviving spouses, heirs, or
next of kin.
52. NATURE OF PARTNER'S INTEREST IN THE PARTNERSHIP
A partner's
interest in the partnership is his share of the profits and surplus
and the same is personal property.
53. ASSIGNMENT OF PARTNER'S INTEREST
1. A
conveyance by a partner of his interest in the partnership does not
of itself dissolve the partnership, nor, as against the other partners
in the absence of agreement, entitle the assignee, during the continuance
of the partnership, to interfere in the management of administration
of the partnership business or affairs, or to require any information
or account of partnership transactions, or to inspect the partnership
books; but it merely entitles the assignee to receive in accordance
with his contract the profits to which the assigning partner would
otherwise be entitled.
2. In
case of a dissolution of the partnership, the assignee is entitled
to receive his assignor's interest and may require an account from
the date only of the last account agreed to by all the partners.
54. PARTNER'S INTEREST SUBJECT TO CHARGING ORDER
1. On
due application to the Nation court by any judgment creditor of a
partner, the court may charge the interest of the debtor partner with
payment of the unsatisfied amount of such judgment debt with interest
thereon. Upon such application or upon the granting of an order attaching
the interest of the debtor partner before judgment, the court 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,
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.
2. 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:
(a)
With separate property, by any one or more of the partners, or
(b)
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.
3. Nothing
in this Code shall be held to deprive a partner of his right, if any,
under the exemption laws, as regards his interest in the partnership.
CHAPTER 6 - DISSOLUTION AND WINDING UP
60. DISSOLUTION DEFINED
The dissolution
of a partnership is the change in the relation of the partners caused
by any partner ceasing to be associated in the carrying on as distinguished
from the winding up of the business.
61. PARTNERSHIP NOT TERMINATED BY DISSOLUTION
On dissolution
the partnership is not terminated, but continues until the winding up
of partnership affairs is completed.
62. CAUSES OF DISSOLUTION
Dissolution
is caused:
1. Without
violation of the agreement between partners,
(a)
By the termination of the definite term or particular undertaking
specified in the agreement,
(b)
By the express will of any partner when no definite term or particular
undertaking is specified,
(c)
By the express will of all partners who have not assigned their
interests of suffered them to be charged for their separate debts,
either before or after the termination of any specified term or
particular undertaking,
(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;
2. In
contravention of the agreement between the partners, where the circumstances
do not permit a dissolution under any other provision of this section,
by the express will of any partner at any time;
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 it partnership;
4. By
the death of any partner;
5. By
the bankruptcy of any partner or the partnership;
6. By
decree of court under section sixty-three.
63. DISSOLUTION BY DECREE OF COURT
The court
shall decree a dissolution:
1. On
application by or for a partner whenever:
(a)
A partner has been declared incompetent in any judicial proceeding
or is shown to be of unsound mind,
(b)
A partner becomes in any other way incapable of performing h s part
of the partnership contract,
(c)
A partner has been guilty of such conduct as tends to affect prejudicially
the carrying on of the business,
(d)
A partner willfully 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,
(e)
The business of the partnership can only be carried on at a loss,
(f)
Other circumstances render a dissolution equitable;
2. On
the application of the purchaser of a partner's interest under sections
fifty-three or fifty-four :
(a)
After the termination of the specified term or particular undertaking,
(b)
At any time if the partnership was a partnership at will when the
interest was assigned or when the charging order was issued.
64. GENERAL EFFECT OF DISSOLUTION ON AUTHORITY OF PARTNER
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,
1. With
respect to the partners:
(a)
When the dissolution is not the act, bankruptcy or death of a partner;
or
(b)
When the dissolution is by such act, bankruptcy or death of a partner,
in cases where section sixty-five so requires.
2. With
respect to persons not partners, as declared in section sixty-six.
65. RIGHT OF PARTNER TO CONTRIBUTION FROM COPARTNERS AFTER DISSOLUTION
Where the
dissolution is caused by the act, death or bankruptcy of a partner,
each partner is liable to his copartners for his share of any liability
created by any partner acting for the partnership as if the partnership
had not been dissolved unless
1. The
dissolution being by act of any partner, the partner acting for the
partnership had knowledge of the dissolution,
2. The
dissolution being by the death or bankruptcy of a partner, the partner
acting for the partnership had knowledge or notice of the death or
bankruptcy, or
3. The
liability is for a debt, obligation or liability for which the partner
is not liable as provided in subdivision (b) of section twenty-six
of this Code.
66. POWER OF PARTNER TO BIND PARTNERSHIP TO THIRD PERSONS AFTER DISSOLUTION
(1) After
dissolution a partner can bind the partnership except as provided
in subdivision three
(a)
By any act appropriate for winding up partnership affairs or completing
transactions unfinished at dissolution;
(b)
By any transaction which would bind the partnership if dissolution
had not taken place, provided the other party to the transaction
(I)
Had extended credit to the partnership prior to dissolution and
had no knowledge or notice of the dissolution; or
(II)
Though he had not so extended credit, had nevertheless known of
the partnership prior to the dissolution, and, having no knowledge
or notice of dissolution.
2. The
liability of a partner under subdivision one, paragraph (b), shall
be satisfied out of partnership assets alone when such partner had
been prior to dissolution
(a)
Unknown as a partner to the person with whom the contract is made;
and
(b)
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.
3. The
partnership is in no case bound by any act of a partner after dissolution.
(a)
Where the partnership is dissolved because it is unlawful to carry
on the business, unless act is appropriate for winding up partnership
affairs; or
(b)
Where the partner has become bankrupt; or
(c)
Where the partner has no authority to wind up partnership affairs,
except by a transaction with one who
(I)
Had extended credit to the partnership prior to dissolution and
had no knowledge or notice of his want of authority; or
(II)
Had not extended credit to the partnership prior to dissolution,
and, having no knowledge or notice of his want of authority.
4. Nothing
in this section shall affect the liability under section twenty-seven
of any person who after dissolution represents himself or consents
to another representing him as a partner in a partnership engaged
in carrying on business.
67. EFFECT OF DISSOLUTION ON PARTNER'S EXISTING LIABILITY
1. The
dissolution of the partnership does not of itself discharge the existing
liability of any partner.
2. A
partner is discharged from any existing liability upon dissolution
of the partnership by an agreement to that effect between himself,
the partnership creditor and the person or partnership continuing
the business; and such agreement may be inferred from the course of
dealing between the creditor having knowledge of the dissolution and
the person or partnership continuing the business.
3. Where
a person agrees to assume the existing obligations of a dissolved
partnership, the partners whose obligations have been assumed shall
be discharged from any liability to any creditor of the partnership
who, knowing of the agreement, consents to a material alteration in
the nature or time of payment of such obligations.
4. The
individual property of a deceased partner shall be liable for those
obligations of the partnership incurred while he was a partner and
for which he was liable under section twenty-six of this Code but
subject to the prior payment of his separate debts.
68. RIGHT TO WIND UP
Unless
otherwise agreed the partners who have not wrongfully dissolved the
partnership or the legal representative of the last surviving partner,
not bankrupt, 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.
69. RIGHTS OF PARTNERS TO APPLICATION OF PARTNERSHIP PROPERTY
1. When
dissolution is caused in any way, except in contravention of the partnership
agreement, each partner, as against his copartners and all persons
claiming through them is respect of their interest in partnership,
unless otherwise agreed, may have the partnership property applied
to discharge its liabilities, and the surplus applied to pay in cash
the net amount owing to the respective partners. But if dissolution
is caused by expulsion of a partner, bona fide under the partnership
agreement, and if the expelled partner is discharged from all partnership
liabilities, either by payment or agreement under section sixty-seven,
subdivision two, he shall receive in cash only the net amount due
him from the partnership.
2. When
dissolution is cause in contravention of the partnership agreement
the rights of the partners shall be as follows:
(a)
Each partner who has not caused dissolution wrongfully shall have,
(I)
All the rights specified in subdivision one of this section, and
(II)
The right, as against each partner who has caused the dissolution
wrongfully, to damages for breach of the agreement.
(b)
The partners who have not caused the dissolution wrongfully, if
they all desire to continue the business in the same name, either
by themselves or jointly with others, may do so, during the agreed
term for the partnership and for that purpose may possess the partnership
property, provided they secure the payment by bond approved by the
court, or pay to any partner who has caused the dissolution wrongfully,
the value of his interest in the partnership at the dissolution,
less any damages recoverable under clause (II) of paragraph (a)
of subdivision two of this section, and in like manner indemnify
him against all present or future partnership liabilities.
(c)
A partner who has caused the dissolution wrongfully shall have:
(I)
If the business is not continued under the provisions of paragraph
(b) of subdivision two of this section all the rights of a partner
under subdivision (l), subject to clause (II) of paragraph (a)
of subdivision two, of this section.
(II)
If the business is continued under paragraph (b) of subdivision
two of this section the right as against his copartners and all
claiming through them is respect of their interest in the partnership,
to have the value of his interest in the partnership, less any
damages caused to his copartners by the dissolution, ascertained
and paid to him in cash, or the payment secured by bond approved
by the court, and to be released from all existing liabilities
of the partnership; but in ascertaining the value of the partner's
interest the value of the goodwill of the business shall be considered.
70. RIGHTS WHERE PARTNERSHIP IS DISSOLVED FOR FRAUD, OR MISREPRESENTATION
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,
(a) 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;
and
(b) 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
(c) To
be indemnified by the person guilty of the fraud or making the representation
against all debts and liabilities of the partnership.
71. RULES FOR DISTRIBUTION
In settling
accounts between the partners after dissolution, the following rules
shall be observed, subject to any agreement to the contrary:
(a) The
assets of the partnership are:
I.
The partnership property,
II.
The contributions of the partnership specified in paragraph (d)
of this subdivision.
(b) The
liabilities of the partnership shall rank in order of payment, as
follows:
I.
Those owing to creditors other than partners,
II.
Those owing to partners other than for capital and profits,
III.
Those owing to partners in respect of capital,
IV.
Those owing to partners in respect of profits.
(c) The
assets shall be applied in the order of their declaration in clause
(a) of this paragraph to the satisfaction of the liabilities.
(d) Except
as provided in subdivision (b) of section twenty-six of this section:
(1) partners shall contribute, as provided by section forty, subdivision
one, the amount necessary to satisfy the liabilities; and (2) if any,
but not all, of the partners are insolvent, or, not being subject
to process, refuse to contribute, the other partners shall contribute
their share of the liabilities, and, in the relative proportions in
which they share the profits, the additional amount necessary to pay
the liabilities.
(e) An
assignee for the benefit of creditors or any person appointed by the
court shall have the right to enforce the contributions specified
in paragraph (d) of this subdivision.
(f) Any
partner or his legal representative shall have the right to enforce
the contributions specified in paragraph (d) of this subdivision,
to the extent of the amount which he has paid in excess of his share
of the liability.
(g) The
individual property of a deceased partner shall be liable for the
contributions specified in paragraph (d) of this subdivision.
(h) When
partnership property and the individual properties of the partners
are in the possession of a court for distribution, partnership creditors
shall have priority on partnership property and separate creditors
on individual property, saving the rights of lien or secured creditors
as heretofore.
(i) Where
a partner has become bankrupt or his estate is insolvent the claims
against his separate property shall rank in the following order:
I.
Those owing to separate creditors,
II.
Those owing to partnership creditors,
III.
Those owing to partners by way of contribution.
71-a. PAYMENT OF WAGES BY RECEIVERS
Upon the
appointment of a receiver of a partnership the wages of the employees
of such partnership shall be preferred to every other debt or claim.
72. LIABILITY OF PERSONS CONTINUING THE BUSINESS IN CERTAIN CASES
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, creditors of the first or dissolved partnership
are also creditors of the partnership so continuing the business.
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, creditors of
the dissolved partnership are also creditors of the person or partnership
so continuing the business.
3. When
any partner retires or dies and the business of the dissolved partnership
is continued as set forth in subdivisions one and two of this section,
with the consent of the retired partners or the representative of
the deceased partner, but without any assignment of his right in partnership
property, rights of creditors of the dissolved partnership and of
the creditors of the person or partnership continuing the business
shall be as if such assignment had been made.
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, creditors
of the dissolved partnership are also creditors of the person or partnership
continuing the business.
5. When
any partner wrongfully causes a dissolution and the remaining partners
continue the business under the provisions of section sixty-nine,
paragraph (b) of subdivision two, either alone or with others, and
without liquidation of the partnership affairs, creditors of the dissolved
partnership are also creditors of the person or partnership continuing
the business.
6. When
a partner is expelled and the remaining partners continue the business
either alone or with others, without liquidation of the partnership
affairs, creditors of the dissolved partnership are also creditors
of the person or partnership continuing the business.
7. The
liability of a third person becoming a partner in the partnership
continuing the business under this section to the creditors of the
dissolved partnership shall be satisfied out of partnership property
only.
8. When
the business of a partnership after dissolution is continued under
any conditions set forth in this section the creditors of the dissolved
partnership, as against the separate creditors of the retiring or
deceased partner or the representative of the deceased partner, have
a prior right to any claim of the retired partner or the representative
of the deceased partner against the person or partnership continuing
the business, on account of the retired or deceased partner's interest
in the dissolved partnership or on account of any consideration promised
for such interest or for his right in partnership property.
9. Nothing
in this section shall be held to modify any right of creditors to
set aside any assignment of the ground of fraud.
10. The
use by the person or partnership continuing the business of the partnership
name, or the name of a deceased partner as part thereof, shall not
of itself make the individual property of the deceased partner liable
for any debts contracted by such person or partnership.
73. RIGHTS OF RETIRING OR ESTATE OF DECEASED PARTNER WHEN THE BUSINESS
IS CONTINUED
When any
partner retires or dies, and the business is continued under any of
the conditions set forth in section seventy-two, subdivisions one, two,
three, five and six, or section sixty-nine, paragraph (b) of subdivision
two, without any settlement of accounts as between him or his estate
and the person or partnership continuing the business, unless otherwise
agreed, he or his legal representative as against such persons or partnership
may have the value of his interest at the date of dissolution ascertained,
and shall receive as an ordinary creditor an amount equal to the value
of his interest in the dissolved partnership with interest, or, at his
option or at the option of his legal representative, in lieu of interest,
the profits attributable to the use of his right in the property of
the dissolved partnership; provided that the creditors of the dissolved
partnership as against the separate creditors, or the representative
of the retired or deceased partner, shall have priority on any claim
arising under this section, as provided by section seventy-two, subdivision
eight of this Code.
74. ACCRUAL OF ACTIONS
The right
to an account of his interest shall accrue to any partner, or his legal
representative, as against the winding up partners or the surviving
partners or the person or partnership continuing the business, at the
date of dissolution, in the absence of agreement to the contrary.
75. CONTINUANCE OF PARTNERSHIP BUSINESS DURING ACTION FOR ACCOUNTING
In an action
brought to dissolve a partnership, or for an accounting between partners,
or affecting the continued prosecution of the business, the court may,
in its discretion, by order, authorize the partnership business to be
continued, during the pendency of the action by one or more of the partners,
upon their executing and filing with the clerk an undertaking, in such
a sum and with such sureties as the order prescribes, to the effect
that they will obey all orders of the court, in the action, and perform
all things which the judgment therein requires them to perform. The
court may impose such other conditions as it deems proper, and it may
in its discretion at any time thereafter require a new undertaking to
be given. The court may also ascertain the value of the partnership
property, and of the interest of the respective partners by a reference
or otherwise, and may direct an accounting between any of the partners;
and the judgment may make such provision for the payment to the retiring
partners, for their interest, and with respect to the rights of creditors,
the title to the partnership property, and otherwise, as justice requires,
with or without the appointment of a receiver, or a sale of the partnership
property.
CHAPTER 7 - BUSINESS AND PARTNERSHIP NAMES
80. WHEN PARTNERSHIP OR BUSINESS NAME MAY BE CONTINUED
The use
of a partnership or business name may be continued in either of the
following cases:
1. Where
the business of any firm or partnership within the territorial jurisdiction
of the Nation, having business relations with foreign countries or
which has transacted business in this Nation or in any state or territory
of the United States continues to be conducted by some or any of the
partners, their or any of their assignees, appointees or successors
in interest.
2. Where
any partnership shall hereafter be formed under the laws of this Nation
it may use the firm or corporate name of any general or limited partnership
or of any corporation, domestic or foreign, which may theretofore
have carried on its business within the Nation, where said general
or limited partnership or corporation has discontinued or shall be
about to discontinue its business within the Nation, and where a majority
of the partners, general or special, in either of such last mentioned
co-partnership or of the survivors thereof shall be members of the
new co-partnership, or where a majority of the members of such co-partnership
theretofore existing or of the surviving members thereof, or where
stockholders holding a majority of the stock of such corporation shall
consent in writing to the use of such firm or corporate name by such
new co-partnership; or
3. Where
any resident of this Nation dies, who at the time of his death and
for at least five years immediately prior thereto, conducted and carried
on in his sole name, any business in the Nation, or who at the time
of his death, so conducted and carried on any business having relation
with states or foreign countries, the right to use the name of such
person, for the purpose of continuing and carrying on such business,
shall survive and pass and be disposed of and accounted for as a part
of the personal estate of such deceased person, and such business
may be continued and carried on under such name by any person who
comes into legal possession thereof.
81. CERTIFICATE TO BE FILED
Whenever
a partnership or business name continues to be used as provided by section
eighty, the person or persons using such name shall sign and acknowledge
or swear to a certificate, declaring the person or persons intending
to deal under such name, with their respective places of residence,
and file the same in the Nation Clerk's office.
82. FICTITIOUS FIRM NAMES PROHIBITED
(a) No
person shall hereafter transact business in the name of a partner not
interested in his film, and when the designation "and company,"
or "and Co." is used, it shall represent an actual partner;
but a violation of this section shall not be a defense in an action
or proceeding brought by an assignee for the benefit of creditors or
by a receiver of the property of or by an executor or administrator
of a person who has violated the same.
(b)
(1) No
person shall carry on or conduct or transact business in the Nation
as a member of a partnership, unless
(A)
Such person, shall file in the office of the Nation Clerk a certificate
setting forth the name or designation under which and the address
at which such business is conducted or transacted, the full name
or names of the person or persons conducting or transacting the
same, including the names of all partners, with the residence address
of each such person, and the age of any person less than eighteen
years of age. Each certificate shall be executed and duly acknowledged
by the person or, if there be more than one, by all of the persons
conducting the business.
(c) No
person or persons shall hereafter use or file a certificate for the
use of any name or designation to carry on or conduct or transact business
in the Nation which consists of or includes words, or initials and a
word or words, which are or appear to be the full name or names, or
the initials or initials and family name of a person or persons, or
a colorable simulation thereof, unless:
(1) the
words or initials and word or words appearing to be the full name
or initials and family name of a person included, are the true full
name or the initials and family name of the person or one of the persons
conducting the business; or
(2) the
words or initials and words so included, which are or appear to be
the full name, or the initials and family name, of any person, have
a secondary, historic or geographic meaning or connotation apart from
that of a name of a person, and the name or designation so used contains
a word or words clearly signifying such secondary, historic or geographic
meaning or connotation, or is followed by the abbreviation "a.m.",
and said secondary, historic or geographic meaning or connotation
is stated in the certificate; or
(3) the
person or persons conducting the business are successors in interest
to the person or persons theretofore using such name or names to carry
on or conduct or transact business, in which case the certificate
filed shall so state.
(d) Whenever
a certificate which has been filed under this section does not accurately
set forth the facts required by this section, or within thirty days
after there has been a change in such facts, an amended certificate
shall be filed which shall identify the original certificate and incorporate
the corrections or changes. If such amended certificate is filed for
the purpose of adding or withdrawing the name of any person to the original
certificate as a person conducting a business or as a partner, such
amended certificate must be executed and acknowledged by such person
and by any one or more of the other persons named in the original or
last amended certificate, unless otherwise provided by a order of the
supreme court. Any other amended certificate may be executed and acknowledged
by any one or more of the persons named therein as person conducting
the business as a partner.
(e) A certified
copy of the original certificate, or if an amended certificate has been
filed, then of the most recent amended certificate filed, then of the
most recent amended certificate filed shall be conspicuously displayed
on the premises at each place in which the business for which the same
was filed is conducted.
(f) The
Nation Clerk shall keep an alphabetical index of all certificates filed
by partnerships, together with appropriate notations of the nature of
amended certificates and certificates of discontinuance; and for the
indexing and filing of such certificates, the Nation Clerk shall receive
a fee of twenty-five dollars ($25.00).
(g) A copy
of a certificate filed under the provisions of this section, duly certified
to by the Nation Clerk, shall be presumptive evidence in the court of
the facts therein contained; provided, however, that neither the certificate
itself nor the filing thereof shall, for any purpose other than this
section, constitute or be construed as an admission by the filing person,
or be used as evidence, that such person does or has done business or
has carried on, conducted or transacted business in the Nation, or intended
to do so.
(h) This
section shall not apply to a partnership which, has duly filed a certificate
of continued use of firm name under the partnership law, or to a partnership
who has filed a certificate of discontinuance.
(i) The
failure to comply with the provisions of this section shall in no way
affect the rights of third persons, nor shall this section be deemed
or construed to limit the liability of partners under the provisions
of the partnership law.
(j) The
acceptance of a certificate by the Nation Clerk for filing pursuant
to the provisions of this section shall not be construed to confer any
right to or interest in any trade name; nor shall any of the provisions
of this section be construed to affect the rights to, or the enforcement
of any rights to, any trade name acquired at any time.
(k) Any
person or persons carrying on, conducting or transacting business as
aforesaid, who knowingly fails to comply with the provisions of this
section or who knowingly makes a false statement in a certificate filed
thereunder shall be guilty of a misdemeanor. Any person or persons carrying
on, conducting or transacting business as aforesaid who fails to comply
with the provisions of this section shall be prohibited from maintaining
any action or proceeding in the court on any contract, account or transaction
made in a name other than its real name until the certificate required
by this section has been executed and filed in accordance with the provisions
set forth herein.
(l) If
the business for which a certificate is filed under this section is
discontinued, or the conditions under which it is conducted are such
that the filing of a certificate with the Nation Clerk is no longer
required, a certificate of discontinuance may be filed with the Nation
Clerk, identifying such certificate and also identifying the amended
certificate, if any, last previously filed and certifying the facts
by reason of which the filing of a certificate is no longer required.
The certificate of discontinuance shall be executed and acknowledged
in the sane manner as an original certificate and shall specify the
date of which the discontinuance occurred or the conditions under which
the business is conducted changed so that the filing of a certificate
is no longer required. The Nation Clerk shall note the discontinuance.
A certificate of discontinuance shall be executed by a majority of the
persons named in the original certificate or the amended certificate
last previously filed as persons conducting or transacting the business
or as partners. Such signatures may be dispensed with by order of the
Nation Court.
2/2003
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