LAW 604 – WEDNESDAY, 07/07/2010 (WEEK 1)

INTRODUCTION

 

TEXTBOOKS & REFERENCES

1. Dr. Rizal Salim, Malaysian Law of Partnership.

2. Samsar Kamar Hj. Ab.Latif, Partnership Law in Malaysia.

3. Evaray, E. R. H. Underhill Principles of the Law of Partnership.

4. Chan & Koh, Company Law in Malaysia.

5. K. Arjunan, Company Law in Malaysia.

 

STATUTES

1. Partnership Act 1961

2. Companies Act 1965

3. Capital Markets & Services Act 2007

 

PARTNERSHIP BASIS

1. Partnership = Firm

    a. relationship with 3^rd party outsider. (sec 7, 8, 9, 10, 11, 12, 13, 14)

    b. existence of partnership. (sec 3 & sec 4)

    c. dissolution of partnership. (sec 34 – 38)

    d. partnership property. (sec 22 & sec 23)

    e. retirement of partnership. (sec 16, 19, 38)

    f. partnership relationship between partner inter-se. (sec 26, 30, 31, 32)

 

DIFFERENCES BETWEEN PARTNERSHIP & COMPANY IN MALAYSIA

 

PARTICULAR	PARTNERSHIP	COMPANY
1. CONSTITUTION/ PERSONALITY	- sec 3(1) PA 1961 - A + B + C = samepersons - firm = partners - Partnership = same legal entity	- consists of director, auditor, shareholders, employers, managers, secretary, promoters. -company = separate legal entity
2. PROPERTY	- firm property not belong to partners	Belongs to company not the shareholders
3. SUING & BEING SUED	SUING: X v. Firm X v. A + B + C BEING SUED: Firm v. X A + B + C v. X	SUING: X v. Company X v. Directors X v. Auditors X v. Shareholders Company v. Director BEING SUED: Vice versa * PROPER PLAINTIFF RULE (foss v harbottle) * Two types: 1. Company derivative action - shareholders (company capacity) v. Director 2. Sack the director by shareholders (takes time) - shareholders held General Meeting to appoint new director to instigate an action to sue the previous director
4. TAX	- firm pay tax - partners pay individual tax (personal income tax ie subject to profit)	- corporate tax
5. SUCCESSION & BIRTH	SUCCESSION: - firm dissolved automatically BIRTH: - when sec 3(1) is satisfied - partnership can exist without partnership agreement	SUCCESSION: Company not die but CEASE TO EXIST when its name is struck off from the list of Register belonging to SSM/ ROC – registrar of copies BIRTH: When get the certificate of incorporated from SSM with date of registration
6. RULES & REGULATIONS: memorandum & article of association (M & A)	- according to partnership agreement - partnership Act - if partnership Act is silent, use case law	- M = constitution - A = articleof association
7. CHARACTERS	- sensitive = easy to dissolve	- durable
8. EXEECUTION – signing of document	- every partners have to sign - depends on partnership agreement	- by way of affixation common seal witnessed by 2 directors
9. AGE LIMIT	- minors are legitimate partners - minor is not personally liable but can incur liabilities for firm	- no age limit to be shareholder - director must < 70 years old - if more than 70, must get consent from board of directors.