Common use of ▇▇▇▇▇▇ and ▇▇▇▇▇ Clause in Contracts

▇▇▇▇▇▇ and ▇▇▇▇▇. 123 under the original partnership arose in 1930 and was, therefore, barred by prescription and that there was no evidence to- establish a fresh partnership. The only question that requires decision is whether the retirem ent of FoPEeka from the partnership operated in law as a dissolution of the partnership or whether the partnership continued under the agreem ent o f M arch 5, 1927, as betw een the plaintiff and the defendant ? In 1929, Fonseka com m enced proceedings against the defendant claim ing his share o f the profits under the agreement. ▇▇▇▇▇▇▇ did not ask for a dissolution o f the partnership. This case, according to the plaintiff’s evidence, 'w as settled on the footing that the plaintiff and defendant bought up ▇▇▇▇▇▇▇’ s rights for B s. 3,000. The plaintiff apparently with difficulty liquidated his share o f this sum b y driblets. The m atter is o f course governed b y the Partnership A ct (1890) (53 and 54 V iet, o- 39) w hich is in force in Ceylon by virtue o f section 3 o f the Civil L a w Ordinance (Cap. 66). Sections 32 and 33 o f the A ct prescribe in w hat m anner a partnership is dissolved. E etirem ent o f a partner is not form ulated as operating in law to produce a dissolution. On the other hand, section 4 6 o f the A ct is worded as fo llo w s: — “ The rules o f equity and o f com m on law applicable to partnership, shall continue in force except so far as they are inconsistent with the express provisions o f this A ct. ” I t would seem that prior to the enactm ent of the Partnership A ct, 1890, a partnership at com m on law w ould be dissolved b y the retirem ent o f a partner. Can it be said that the rule o f com m on law is inconsist­ e n t w ith the provisions of Sections 32 & 33 o f the A ct ? M ▇. ▇▇▇▇▇▇ in support o f his contention that the partnership was dissolved relies on the

▇▇▇▇▇▇ and ▇▇▇▇▇. 123 under the original partnership arose 125 firm o f his share in 1930 and was, therefore, barred by prescription and that there was no evidence to- establish a fresh partnership. The only question that requires decision is whether the retirem ent of FoPEeka from the partnership it operated in law as a dissolution of the partnership or whether the partnership continued under the agreem ent o f M arch 5, 1927, as betw een the plaintiff and the defendant ? In 1929, Fonseka com m enced proceedings against the defendant claim ing his share o f the profits under partnership; but in the agreementeditions published since the A ct the editor® indicate that it is- their opinion that •the A ct has m ade a difference in this respect, because the A ct m entioned certain specific cases in w hich a partnership is to be considered to be dissolved, and the assignment o f partnership shares is not included am ongst them . I was referred to a case o f ▇▇▇▇▇▇▇▇ did ▇ . ▇▇▇▇ on, in which it was suggested that the point had b een decided by B idley and ▇▇▇▇▇▇▇ ▇.▇. in the Divisional Court, but w hen that case is exam ined it w ill be found that the point was not ask for a dissolution decided, the decision o f the partnership. This case, according to the plaintiff’s evidence, 'w as settled Court having proceeded on the footing that special terms of the plaintiff and defendant bought up particular agreem ent betw een the parties. There seem s to be no real authority on the question where there are m ore than tw o partners,, though where there are only tw o partners there is authority: H ea th y . of dissolution is inconsistent with a section w hich expresses certain-, causes. ” That the question at issue is shrouded in doubt appears "from the follow ing' passage from V olum e 24 of H ▇▇▇▇▇▇▇’ s rights for B s. 3,000. The plaintiff apparently with difficulty liquidated his share Law s o f this sum England, page 462,. paragraph 883 : — “ An assignment of his interest b y driblets. The one partner to another, where- there are only two partners, operates as a dissolution, but where there are m atter ore than tw o the point is d ou b tfu l.” In this state of uncertainty it is relevant to consider the opinions o f course governed b y standard works on the Partnership A ct (1890) (53 and 54 V iet, o- 39) w hich is in force in Ceylon by virtue o f section 3 o f the Civil L a w Ordinance (Cap. 66). Sections 32 and 33 o f Partnership. In the A ct prescribe in w hat m anner a partnership is dissolved. E etirem ent 10th edition o f ▇▇▇▇▇▇▇ on the L a partner is not form ulated as operating in law to produce a dissolution. On the other hand, section 4 6 w o f Partnership, I find the A ct is worded as fo llo w s: follow ing passage on page 6 8 0 :— “ The rules o f equity and o f com m on law applicable to partnership, shall continue in force except so far as they are inconsistent with the express provisions o f this A ct. ” I t would seem that prior to the enactm ent of the Partnership A ct, 1890, a partnership at com does not m on law w ould be dissolved b y ention the retirem assignm ent of a. share amongst the causes of dissolution; it is therefore conceived' that the assignment o f a partnershare in no case operates as a dissolution. Can it be said that the rule This is o f com slight im on law portance in partnerships for an undefined term , as they m ay be dissolved at any ▇▇▇ e upon n otice; nor is inconsist­ it o f m uch consequence in the ease o f partnerships for a fixed term , if the o th e n r partners have a right to treat the assignment as a ground o f dissolution. B u t w ith from the provisions of Sections 32 & 33 silence o f the A ct ? M ▇. ▇▇on this point and the express m en tion o f the option to dissolve when a partner suffers his share o f the partner­ ship property to be charged for his separate debts, it is apprehended th a t an assignment b y a partner o f his share is no m ore than a circu m ▇▇▇▇ in support o f his contention ce enabling the Court, if it thinks fit, to decree a dissolution on the ground that it is, for the partnership was dissolved relies on thereasons above stated, ju st and equitable to do so 1 (1832) 4 B and Ad. 112.