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When does a partnership exist

A) A partnership may be formed either expressly or impliedly, and in each case all the circumstances should be examined in order to ascertain:

  • The intention of the parties;
  • Whether there has been a sharing of gains and losses accompanied by a state of agency; and
  • Whether each party encompass a voice in the management.

B) In addition to the common law rules, Partnership Act sets out other negatively framed rules to which ‘regard shall be had’ if the answer is still not clear:

  • Common ownership of property;
  • Sharing of gross returns; and
  • Sharing of profits.

C) The courts look not only at what the parties must be taken to have intended, but at their conduct towards one another while carrying on the business.

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