Atap

November 24, 2017 | Author: Gabriel Justine Ramos | Category: Trust Law, Partnership, Law Of Agency, Trustee, General Partnership
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ATAP...

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Kinds of express trust 1. Charitable trust – for the benefit of the public, charitable, educational, social, religious or scientific purposes 2. Accumulation trust – will accumulate income for period of time 3. Spendthrift trust – for the protection of the trustee due to his immaturity, frugality or inexperience. 4. Sprinkling trust – staggered basis where income will be given each year with specified amount Instances where there is implied trust 1. When a land is owned by one person but is registered under torrens system under the name of another, latter is the trustee for the real owner 2. A vehicle is paid by one person but is named under another, the latter is the trustee 3. In insurance, the insurance company is the trustee, holding funds in trust in favour of the claimants 4. In foreclosure sales, the mortgagee is the trustee of the mortgagor as far as the excess proceeds due to the mortgagor is concerned. 5. In agency, an implied trust is made between the principal and the agent when the agent violates the trust of the principal and is still at present holding properties owned by the principal 6. In corporations, implied trust is present between the corporation and its creditors in a sense that the corporation cannot distribute assets to its shareholders if corporation debts has not yet been settled 7. The legal heirs or the administrator of the deceased are trustees of the voluntary heirs in a sense that those disposed in favour of voluntary heirs are being held in trust by the administrator or legal heirs until the settlement of the estate. Distinctions between implied and express trust 1. Express trust is made by agreement of parties, implied trust is made by operation of law 2. Express trust made with regard to immovable properties has to be in writing, in implied trust, it can be orally 3. Laches and acquisitive prescription does not bar an action to enforce an express trust unless there is express repudiation while in implied trusts laches will bar an action even without repudiation 4. Fiduciary relations govern the parties in express trust, such fiduciary relation is not required in implied trust 5. Express trusts are made by the positive acts of the parties, implied trusts are deducible from the nature of the transaction of the parties Power of attorney is required in: 1. effecting payments which are not under acts of administration 2. effecting novations 3. effecting compromises, waiver of prescription and venue 4. to waive any obligation gratuitously 5. to enter into contract with respect to transmission of ownership of real properties 6. to make gifts except those which are customarily made 7. to loan or borrow money 8. to bind principal to perform a service without compensation 9. to bind principal in a contract of partnership 10. to lease real property in more than one year 11. to constitute principal as guarantor or surety 12. to create or convey real rights over immovable property 13. to accept or repudiate an inheritance 14. to ratify or recognize previously made obligations prior to agency 15. other acts of strict dominion ways of extinguishing agency 1. expiration 2. death or civil interdiction 3. withdrawal 4. accomplishment 5. revocation 6. dissolution rules in determining existence of partnership 1. persons who are not partners as to each other are not partners as to third persons 2. co-ownership and coposession does not in itself establish partnership whether or not both share profits made by the use of the property 3. sharing of gross returns does not in itself establish partnership whether or not they have shared interest in any property from which returns are derived

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receipt of a person of profit in a business is a prima facie evidence of partnership but not if payment is made as: a. debt by instalment b. wage of an employee or rent to a landlord c. as annuity to widow of a deceased partner d. interest on a loan e. consideration for the sale of a business’ goodwill

a partner is not allowed to: 1. assign partnership property to creditors 2. dispose of the goodwill of the business 3. do any act which will render the business impossible to carry on 4. confess judgment 5. enter into compromise regarding partnership claims 6. submit partnership claims to arbitration 7. renounce a claim of the partnership dissolution of partnership is caused: 1. without violation of the agreement a. upon termination of definite term or particular undertaking b. by express will of any of the partners c. by express will of all partners who did not assign their interest to third persons d. by expulsion of any partner 2. in contravention of agreement when dissolution is made when it is not permitted by the circumstances 3. by any event which renders it unlawful for the partnership to carry out its business 4. when a specific thing is perished or lost 5. death of any partner 6. insolvency of any partner 7. civil interdiction of partner 8. by judicial decree judicial decree of dissolution when: 1. partner is declared insane 2. partner becomes incapable of performing his duties as a partner 3. partner is found guilty of conduct prejudicial to the partnership 4. partner wilfully and persistently commits breach of partnership agreement 5. business can only be carried out at a loss 6. other circumstances which renders dissolution equitable after dissolution partner can still bind other partners in transactions 1. which are necessary for the winding up of the partnership affairs 2. which would bind the partnership had the dissolution did not take place partner cannot bind other partners after dissolution if: 1. the partner has become insolvent 2. dissolution is because the business has become unlawful 3. partner has no authority to wind up partnership affairs certificate of limited partnership shall contain: 1. word limited 2. character of business 3. location of business 4. name and place of each partner and designation 5. term of the partnership 6. amount of cash and property contributed by partners 7. additional contributions if any 8. time when contribution is to be returned 9. profit sharing 10. right of limited partner to substitute someone for him if any 11. right of partners to admit new limited partners if any 12. right of other partners to be prioritized over other partners if any 13. right of the remaining general partners to continue business in case of dissolution if any 14. right of partner to demand and receive property in other form than money certificate of limited partnership shall be amended when: 1. change in the name of the partnership 2. a person is substituted as limited partner 3. additional limited partner 4. additional general partner 5. general partner retires, dies, etc 6. change in the character of business 7. false or erroneous statement in the certificate 8. change in the time of dissolution or return contribution 9. time is fixed for the dissolution of partnership or return of contribution

10. members desire to change in any other statement in the certificate to accurately represent the agreement in limited partnership, general partners are not allowed to: 1. do any act contrary to the partnership agreement 2. do any act which would make it impossible to carry out the partnership business

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confess judgment against partnership possess partnership property to the exclusion of other partners admit another person as general partner admit another person as limited partner continue the business upon death of other partner

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