TITLE:

Report on the Legal Nature of Partnerships: Comparative Law Study

AUTHOR(S): 

Bouchard, Charlaine

EDITOR:

Department of Justice Canada

This research report inspired articles that were published in:

•  Bouchard, Charlaine « Les rapprochements entre la société de personnes et le partnership : une étude de droit comparé canadien » (2001), 42 Cahiers de droit, 155-213. [french only]
•  Bouchard, Charlaine, “Report on the Legal Nature of Partnerships:  Comparative Law Study”, The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism – Collection of Studies in Tax Law, Montreal, Association de planification fiscale et financière, 2002, pp. 7 :1-38.

PAGE(S):

SERIE(S):

The Harmonization of Federal Legislation with Quebec Civil Law and Canadian Bijuralism – Collection of Studies in Tax Law

SUBJECT(S):

Canadian Bijuralism
Tax law

Abstract:

In 1994, the Quebec legislator revisited the contract of partnership and adapted it to contemporary realities.  Thus, the old-fashioned distinction between the special and universal corporations was abolished, just as the one between the civil and commercial corporations.  The conditions required to create a partnership were clearly established and the registration requirements were completely renewed with the concern of third party protection. 

The question of legal personality of the partnership was also completely redefined: the partnership is not a legal person, but its lawful attributes are more important than by virtue of the former Code.  How does one explain a paradox in regards to the traditional analysis, even though the Court of Appeal, by a resounding judgement, reinforces controversy? 

The reference to the common law partnership is interesting.  The partnership does not constitute a legal person.  Nevertheless, the courts have, for some time, recognized a certain different lawful individuality of a corporate body since the partners remain personally liable for partnership’s debts. 

TABLE OF CONTENTS:

INTRODUCTION

1. COMMON LAW FOR PARTNERSHIPS

1.1 PARTNERSHIP CONTRACT

        1.1.1 Civil law

                  i. The placement of common provisions

                  ii. The division of pecuniary profits

                 iii. The spirit of collaboration

1.2 Common law

                  i. Existence of an enterprise

                 ii. Common exploitation

                iii. Profit realization

1.3 TYPES OF PARTNERSHIPS

        1.3.1 Under the Civil Code of Québec

                  i. Registered corporations

                        - Collective Corporation

                        - Corporation sponsors

                 ii. Non-registered corporations: corporation participating in polymorphism

        1.3.2 According to Partnerships Acts

                  i. Collective corporation

                  ii. Corporation sponsors

                iii. Limited responsibility corporation

1.4 JOINT VENTURES

1.4.1 Canadian common law provinces

1.4.2 Quebec law

2. LEGAL INDIVIDUALITY OF PARTNERSHIPS

 2.1 THE DEBATE ON THE LEGAL PERSONALITY OF PARTNERSHIPS IN THE CIVIL LAW

2.1.1 The [translate C.c.B.C. to English] and the concept of the moral personality

i. Origin of controversy

 ii. Evolution of jurisprudence

2.1.2 [translate C. c. Q. into english] and the conception of patrimony

i. The paradox in the new legislation

ii. The courts interpretation

iii. Autonomy relating to corporations

2.2 The negation of a person of moral quality in common law partnerships

2.2.1 The firm and conception of the property

2.2.2 The expressions of legal autonomy of partnerships

CONCLUSION