美国纽约州律师资格考试各科提纲 - 合夥.pdf

融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis Int l Commercial Regulatory Consulting 美国美国纽纽约约州州律师律师资资格格考考试试各各科科提提纲纲 合伙合伙 PartnershipsPartnerships Start Essay With NY Partnership Law governs General partnership is an association of 2 or more persons who are carrying on as co owners of a business for profit Agency principles apply Summary of Most Commonly Tested Issues 1 Formation General partnership is formed by association of 2 or more persons who are carrying on as co owners of a business for profit 2 Liabilities of Partners to Third Parties Partners are agents of the partnership for carrying on usual partnership business partnership is bound by torts committed by partners in the scope of the partnership business and partnership is bound by contracts entered by partners with authority 3 Rights and Liabilities Among Partners Partners have right to transfer personal properties but not partnership properties without partnership authorities 4 Dissolution Any material change in the partnership caused by the death or withdrawal of any single general partner causes automatic dissolution of the partnership 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis Int l Commercial Regulatory Consulting 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis Int l Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂凯德律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang or visit website http www ChinaIPCompetitionA I I Creation of PartnerCreation of Partnerships ships A General Partnerships Association of 2 or more persons who are carrying on as co owners of a business for profit 1 No formalities to becoming a general partnership 2 Sharing Profits Contribution of money or services in return for a share of the profits is prima facie evidence of partnerships B Limited Partnerships File a limited partnership certificate that includes names of all general partners with the NY Department of State 1 Partnerships with at least one general partner and at least one limited partner 2 Liability and Control a General Partners 1 Liable personally for all partnership obligations 2 Right to manage b Limited Partners Not liable for partnership obligations No right to manage generally C Limited Liability Partnerships Register with NY Department of State by filing a Certificate of Registration 1 The Certificate of Registration includes the profession practicing 2 Liabilities a No partner will be liable for debts and obligations of the partnership b Partners are liable for personal wrongdoing 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis Int l Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂凯德律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang or visit website http www ChinaIPCompetitionA II II The Authority Liability and Interests of Partners The Authority Liability and Interests of Partners A Authority to Bind Partnership and Other Partners 1 General Partnership Liability by Estoppels One who represents to a third party that a partnership exists will be liable as if the partnership exists and the representer is liable like a partner 2 Partners are agents of the partnership for carrying on usual partnership business a Partnership is usually not liable for unusual business entered by partners b Ratification When the business is outside of the partnership scope the partnership is not liable for it unless other partners later ratify it B Liability of Partners and Procedural Requirements 1 General partners are personally liable for the debts of the partnership a Incoming Partners 1 Generally incoming partners are not liable for prior debts 2 Exceptions Any money paid into the partnership by the incoming partner may be used by the partnership to pay prior debts b Outgoing Partners 1 Retain liability on future debts until notice of withdrawal is given to all known and potential creditors 2 Death of an outgoing partner terminates all liability 2 General Rules a Every general partner is liable for his own actions b Every general partner is liable for the actions of the other partners when it is within the scope of partnership business c Every general partner is liable for the actions of the employees of the business when it is within the scope of partnership business 3 Limited partners limited liability partners and LLC members have limited liability C Liability of Partnership and Procedural Requirements 1 Partnership is bound by torts committed by partners in the scope of the partnership business 2 Partnership is bound by contracts entered by partners with authority D Partner s Fiduciary Responsibilities Partners are fiduciaries of each other and the partnership 1 Duty of Loyalty General partners may never engage in self dealing usurp a partnership opportunity or take secret profit 2 Action for Accounting a Only form of action that can be brought by a partnership against one of its own partners for a breach b Recover losses and disgorge profits E Assignment of Partnership Interests 1 Specific Partnership Assets a Land leases equipment owned by the partnership b No individual partner may transfer those assets without partnership authority 2 Share of profits and surplus a Partners share is Personal Property owned as Personal Property by each partner b Individual partners may transfer their share of profit and surplus to third parties 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis Int l Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂凯德律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang or visit website http www ChinaIPCompetitionA 3 Share in Management a Asset owned only by partnership itself and not by any individual partners b No individual partner may transfer his share of management to third parties 4 To distinguish between specific partnership assets and Personal Property ask whose money was used to buy the property a Partnership Money Partnership asset b Personal Funds Personal Property F Rights of Successors Assignees and Creditors of Partnership 1 Successors a Upon the death or withdrawal of a partner his successors have the right to join the partnership if 1 prescribed by the partnership agreement or 2 all the partners consent in writing b If a successor does not join the partnership the successor has the right to receive a share of the compensation corresponding to his share of the succession which the deceased partner would have received upon departure from the general partnership 2 Assignees a An assignee of a partnership interest may become a limited partner if the assignor gives the assignee that right according to the agreement or all partners consent in writing b Assignee is entitled to receive to the extent assigned the distributions and allocations of profits and losses to which the assignor would be entitled and the partner will lose his right as a partner upon his assignment of all of his partnership interests 3 Creditors Creditors have priority to be paid first upon dissolution G Partnership Profits and Losses 1 Absent an agreement profits are shared equally 2 Absent an agreement losses are shared like profits 3 Absent an agreement partners get no salary The only time partners receive compensation is for helping wind up partnership business H Management and Control Absent an agreement each partner is entitled to equal amount of control or votes 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis Int l Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂凯德律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang or visit website http www ChinaIPCompetitionA 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis Int l Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂凯德律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang or visit website http www ChinaIPCompetitionA III III Dissolution Dissolution A General Partnerships Limited Partnerships and Limited Liability Partnerships 1 General Partnerships Any material change in the partnership caused by the death or withdrawal of any single general partner causes automatic dissolution of the partnership 2 Limited Partnerships The death or bankruptcy of a limited partner is not a ground for dissolution unless his share in the partnership cannot be otherwise realized 3 Limited Liability Partnerships Agreement can set a specific date or event for dissolution B How Dissolution is Accomplished 1 Dissolution by Decree of Court For general partnerships a court will decree dissolution upon any material change in the partnership including a partner s withdrawal incompetency bankruptcy or violation of the agreement 2 Partners Will Partners can also file Articles of Dissolution or a Notice of Intent to Dissolve C Post Dissolution Operations Including Winding up and Termination On dissolution the partnership continues until the winding up of partnership affairs is completed 1 Definitions a Termination Real end of the partnership 融经融经国际商法咨询服务国际商法咨询服务 Gnosis Praxis Int l Commercial Regulatory Consulting 如有任何问题或需进一步法规信息 请与王榮菁律师 涉外法律顾问 上海金茂凯德律师事务所 联系 If you have any questions or need further legal information please contact Rita Wang Esq by e mail attorneyritawang or visit website http www ChinaIPCompetitionA b Winding Up Period between dissolution and termination in which the remaining partners liquidate the partnership assets to satisfy the partnership creditors 2 Compensation and Liability for Winding Up a Partners receive compensation for winding up b Partnership Liability for Winding Up 1 Old Business Partnership and individual general partners retain liability on all transactions entered into to wind up old business with existing creditors 2 New Business Partnership and individual general partners retain liability on new business until notice of dissolution is given to all known and potential creditors 3 Priority of Distribution a Each level of priority must be fully satisfied before beginning the next level under the following scheme 1 First Priority Creditors must be paid first a Outside non partner trade creditors b Inside partners who have made loans to the partnership and have become creditors 2 Second Priority Partnership owes full re payment to its own partners for capital contributions 3 Third Priority Profits and surplus if any should be shared equally among partners in absence of agreement to do otherwise b Summary Each partner must be repaid his loans and capital contributions plus that partner s share of the profits minus that partner s share of losse