Brief introduction of the case: The big black bull has a group of good buddies, the black bear, the black panther and the black crow, and the four of them discuss building a black castle for the Black Forest. The big black bull is responsible for finding a small helper, the little white cow, the black bear is responsible for moving bricks, the black panther is responsible for water and electricity tools, and the black crow is responsible for bookkeeping. The little helper, Little White Cow, fell from the third floor during construction. The little white cow found Xu Baotong's lawyer team, should he sue the big black bull? After Xu Baotong's lawyer team analyzed the case, he boldly sued the big black bull, black bear, black panther, and black crow, and finally won the judgment.
1.Legislative and judicial considerations regarding the form of the contract.
Article 135 of the Civil Code: Civil juristic acts may be in written, oral, or other forms; Where laws or administrative regulations provide or the parties agree to adopt a specific form, the specific form shall be adopted.
However, in practice, the judgment of the form of the contract is still largely based on the express written form such as the contract, and it is obviously insufficient to uphold the legislative spirit of freedom of contract to determine other forms of written contracts. However, the mainstream view is still that as long as the content of the contractual rights and obligations contained in the contract can be tangibly expressed and sufficient to determine the form of the contractual relationship between specific parties, it should be classified as a catch-all written contract.
2.The determination of the partnership contract in this case.
Based on the complexity of the partnership relationship, Article 967 of the Civil Code provides that a partnership contract is an agreement entered into by two or more partners to share benefits and risks for the purpose of a common business.
In this case, a note was written between the big black bull, the black bear, the black panther, and the black crow to share their respective shares. Although the note lacks a complete and unambiguous wording, its form and content are far from the contract. However, it is clear that it "can be a tangible representation of what is contained", and from the rule of thumb, the four parties have agreed on the proportion of expected profits. From the point of view of the spirit of freedom of contract, it is clear that the note already constitutes a written atypical partnership agreement. It is an expression of the true intent of the four parties, and the content does not violate the provisions of law, and shall be found to be lawful and valid. The legal effect is that the three parties shall perform according to the contract.
3.Determination of the partnership in this case.
That is, the partners need to form a body to carry out activities in the name of the partnership organization externally, and the partners or shareholders bear the corresponding responsibilities internally. The remuneration is distributed in such a way that after the opening of the Black Forest Castle, the four of them are confirmed in a specific proportion. It is a loose partnership. The big black bull is responsible for finding a small helper, the little white cow, the black bear is responsible for moving bricks, the black panther is responsible for water and electricity tools, and the black crow is responsible for bookkeeping. The four are indeed in partnership.
4.The big black bull, the black bear, the black panther and the black crow are jointly and severally liable for the claims of the little white cow.
Partnership Act
Article 33 The distribution of profits and losses of a partnership enterprise shall be handled in accordance with the provisions of the partnership agreement; If the partnership agreement is not agreed upon or the agreement is not clear, the partners shall decide through consultation; If the negotiation fails, the partners shall distribute and share according to the proportion of paid-in capital contributions; If the proportion of capital contribution cannot be determined, it shall be equally distributed and shared by the partners.
The partnership agreement shall not stipulate that all profits shall be distributed to some of the partners or that some of the partners shall bear all losses.
Article 39 Where a partnership enterprise is unable to pay off its debts when due, the partners shall bear unlimited joint and several liability.
Article 40 Where a partner has unlimited joint and several liability and the amount of repayment exceeds the proportion of his or her share of losses as provided for in the first paragraph of Article 33 of this Law, he or she has the right to recover from the other partners.
Xu Baotong's lawyer team believes that if Little White Bull only sues Big Black Bull, the responsible entity may be single and the recovery ability is weak. The addition of all partners, such as Black Bear, Black Panther, and Black Crow, increases the number of responsible entities, and also helps debt recovery. Either party should bear full responsibility for Little White Bull, and then the internal recovery is a matter between the four partners.
Mr. Xu Baotong is a senior partner of Shanghai Jinkun Law Firm, a director of the International Bar Association (IBA), a mediator of the Asian Alternative Dispute Resolution and Mediation Center, an arbitrator of several arbitration institutions in China, an arbitrator of the Thailand International Arbitration Center (THAC), a member of the Chartered Institute of Arbitrators (CIARB), and a member of the American Accounts Receivable Collection Association (ACA International). Xu Baotong's lawyer team focuses on corporate, commercial, equity, contract litigation and arbitration dispute resolution, and has more than 10 years of experience in court trial practice and rule research, especially in contract disputes. This article cannot be regarded as legal advice or opinions on specific cases, and is only the adjudication rules of the court when the author's team handles similar cases.