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Oneida Indian Nation (New York) Codes and Rules

Last amended: 2004

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


Go to 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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