Drafting General Partnership Laws on the 'Aggregate' or 'Entity' Theory

16 Pages Posted: 10 Mar 2016 Last revised: 26 Apr 2018

See all articles by Peter Winship

Peter Winship

Southern Methodist University - Dedman School of Law

Date Written: 2015

Abstract

It has been “a matter of considerable dispute” whether partnership legislation should treat a general partnership as an entity. The dispute is about whether to draft the legislation on the “entity” theory (the partnership is a separate legal entity) or on an “aggregate” theory (the partnership is an association — but not a legal entity — of persons carrying on a business as co-owners). Scotland and civil law jurisdictions (including Louisiana) have long recognized the partnership as an entity. Until the late 19th century, however, partnership law in common-law jurisdictions was judge- made law, and most judges treated partnership issues on the aggregate theory. Only when these common law jurisdictions seriously considered codifying partnership rules and principles did debate about the nature of a partnership become contentious. In England there was far less debate than in the United States. This essay considers the history of the dispute in both jurisdictions.

Keywords: partnership law, comparative business law

Suggested Citation

Winship, Peter, Drafting General Partnership Laws on the 'Aggregate' or 'Entity' Theory (2015). SMU Law Review, Vol. 68, No. 3, 2015; SMU Dedman School of Law Legal Studies Research Paper No. 252. Available at SSRN: https://ssrn.com/abstract=2744961

Peter Winship (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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