According to Prof. Haney, “partnership is the relation between persons competent to make contract, who agree to carry on a lawful business in common with a view to private gain”.
The persons who enter into partnership are individually called ‘partners’ and collectively a ‘firm’. The name under which they carry on business is called ‘firm name’. The essential characteristics of partnership are as follows:
1. Two or more persons:
There must be at least two persons to form a partnership. A person cannot enter into partnership with himself. The maximum number of persons in a partnership should not exceed 10 in case of banking business and 20 in other types of business.
If the number of partners exceeds the prescribed maximum, it would become an illegal association of persons. A firm cannot become a partner of another firm though its partners can join any other firm as partners.
Partnership is the outcome of an agreement between persons. The relation of partnership arises from the formation of a contract and not from status or birth.
If a proprietor gives a share in profits to his employee it will not be called a partnership unless there is an agreement of partnership between the two. The agreement may be oral or in writing but it must satisfy all the essentials of a valid contract.
3. Lawful business:
A partnership can be formed only for the purpose of carrying on a business. An association of persons who jointly own a house without carrying on a business is not partnership.
Moreover, the business carried on by the partners must be lawful. Illegal acts such as theft, dacoity, smuggling, etc. cannot be called partnership.
4. Sharing of profits:
The agreement between the partners must be to share the profits of business. There can be no partnership without the intention of mutual gain. The profits must be distributed among the partners in an agreed ratio. Similarly, losses should be shared among the partners.
5. Mutual agency:
Partnership business can be carried on by all the partners or by any of them acting on behalf of the others. In other words, every partner is an implied agent of the other partners and of the firm. Each partner is liable for acts performed by other patters on behalf of the firm.
The above mentioned features are the real tests of partnership. In addition, partnership has the following characteristics:
6. Utmost good faith:
The relations between partners are based upon mutual trust and confidence. Every partner is expected to act in the best interests of other partners and of the firm as a whole.
He must observe utmost good faith in all the dealings with his copartners. He must render true accounts and make no secret profits from the business.
7. Unlimited liability:
Every partner is jointly and severally liable to an unlimited extent for the debts of the partnership firm. In case the assets of the firm are insufficient to pay the debts in full, the personal property of each partner can be attached to pay the creditors of the firm.
8. Restriction on transfer of interest:
No partner can transfer his share in the partnership without the prior consent of all other partners.