Covenant mutual liquidating trust
This duty requires that a partner deal with copartners in Good Faith, and it also requires a partner to account to copartners for any benefit that he or she receives while engaged in partnership business. An implied or presumptive assent has equal operation with one that is express and determined.
If a partner generates profits for the part-nership, for example, that partner must hold the profits as a trustee for the partnership. Partnerships are created by mere act of the parties; and in this they differ from, corporations which require the sanction of public authority, either express or implied. And it may be laid down as a general and undeniable proposition, that persons having a mutual interest in the profits and loss of any business, or particular branch of business, carried on by them, or persons appearing ostensibly to the world as joint traders, are to be recognized and treated as partners, whatever may be the nature of the agreement under which they act, or whatever motive or inducement may prompt them to such an exhibition.
A partner may only bind the partnership, however, if the partner has the authority to do so and undertakes transactions while conducting the usual partnership business.
Some courts took a technical approach to the aggregate theory and did not allow a partnership to sue on its own behalf.
In addition, some courts would not allow a suit to go forward against a partnership unless the claimant named each partner in the complaint or added each partner as an "indispensable party." The RUPA generally adopted the entity approach, which treats the partnership as a separate legal entity that may own property and sue on its own behalf.
As the regular English courts gradually recognized the societas, the business form eventually developed into the common-law partnership.
England enacted its Partner-ship Act in 1890, and legal experts in the United States drafted a Uniform Partnership Act (UPA) in 1914. When there is a positive agreement at the commencement of the partnership, that the personal representative or heir of a partner shall succeed him in the partnership, the obligation will be considered valid. The UPA generally opted for the aggregate theory in which individual partners ("an association") comprised the partnership. 14.-The free and personal choice of the contracting parties is so essentially necessary to the constituting of a partnership, that even executors and representatives of deceased partners do not, in their representative capacity, succeed to the state and condition of partners; 2 Ves.