A partnership as we know is an agreement between two or more persons to run a business together and share the profits they earn from this business. Now according to the Indian Partnership Act 1932, there is five important and necessary elements of a partnership. Let us learn about them.
Elements of a Partnership
The Indian Partnership Act 1932 defines a partnership as a relation between two or more persons who agree to share the profits of a business run by them all or by one or more persons acting for them all. As we go through the Act we will come across five essential elements that every partnership must contain. Let us take a look at them.
1] Contract for Partnership
A partnership is contractual in nature. As the definition states a partnership is an association of two or more persons. So a partnership results from a contract or an agreement between two or more persons. A partnership does not arise from the operation of law. Neither can it be inherited. It has to be a voluntary agreement between partners.
A partnership agreement can be written or oral. Sometimes such an agreement is even implied by the continued actions and mutual understanding of the partners.
Browse more Topics under The Indian Partnership Act
- True Test of Partnership
- Kinds of Partnerships
- Types of Partners
- Relation of Partners to One Another
- Relation of Partners to Third Parties
- Partnership Property
- Minors admitted to Benefits of partnership
- Rights of Outgoing Partner
- Legal Consequences of Admission or Retirement of a Partner
- Consequences of Non-Registration of Firm
- Dissolution of a Firm
- Consequences of Dissolution of a Firm
2] Association of Two or More Persons
A partnership is an association between two or more persons. And persons by law only includes individuals, not other firms. The law also prohibits minors from being partners. But minors can be admitted to the benefits of a partnership.
The Act is actually silent on the maximum number of partners. But this has been covered under the Companies Act 2013. So a partnership can only have a maximum of 10 partners in a banking firm and 20 partners in all other kinds of firms.
3] Carrying on of Business
There are two aspects of this element. Firstly the firm must be carrying on some business. Here the business will include any trade, profession or occupation. Only that some business must exist and the partners must participate in the running of such business.
Also, the business must be run on a profit motive. The ultimate aim of the business should be to make gains, which are then distributed among the partners. So a firm carrying on charitable work will not be a partnership. If there is no intention to earn profits, there is no partnership.
4] Profit Sharing
The sharing of profits is one of the essential elements of a partnership. The profit sharing ratio or the manner of sharing profits is not important. But one partner cannot be entitled to the entire profits of the firm.
However, the sharing of losses is not of any essence. It is up to the partners whether the losses will be shared by all the partners. If nothing is said then the losses are also split in the profit sharing ratio.
Say for example two individuals are operating out of the same warehouse. So they agree to divide the rent amongst themselves. This is not a partnership since there is no profit sharing between the two.
5] Mutual Agency
The definition states that the business must be carried out by the partners, or any partner/s acting for all of them. This is a contract of mutual agency another one of the five elements of a partnership.
This means that every partner is both a principle as well as an agent for all the other partners of the firm. An act done by any of the partners is binding on all the other partners and the firm as well. And so every partner is bound by the acts of all the other partners. This is one of the most important aspects of a partnership. It is, in fact, the truest test of a partnership.
Solved Example on Elements of a Partnership
Q: Why is a HUF not considered as a partnership?
Ans: One of the most important elements of a partnership is a contract/agreement for partnership. There has to be a voluntary and contractual agreement between partners. A HUF is born out of statues and all its members are born into it. So these members cannot be partners in the eyes of the law, and the HUF is not a partnership.