O.C.G.A. § 14-8-6 (2019)

Annotations

COMMENT Note to Uniform Partnership Act This section sets forth a general definition of partnership. Pursuant to subsection (a), partnership is distinguished from an ordinary principal-agent relationship in that partners are ‘‘co-owners’’ of the business, and from passive co-ownership of property in that partners ‘‘carry on . . . a business.’’ Pursuant to subsection (b), the Act does not convert into a partnership any non-partnership that was formed under another statute. The Act does, however, apply to limited partnerships except insofar as the ULPA includes inconsistent provisions. Prior Georgia Law There was no comparable definition of partnership. For a comparison of the rules for determining the existence of partnership under prior Georgia law and under the Act, see the Comment to § 14-8-7. Official UPA This section is the same as the official version. Cross-References Definitions of ‘‘business’’ and ‘‘person’’: § 14-8-2. Rules for determining the existence of partnership in accordance with the definition set forth in this section: § 14-8-7. Partnership by estoppel: § 14-8-16.

JUDICIAL DECISIONS Issue of law and fact. - In Georgia, the issue of partnership is generally a mixed question of law and fact and cannot be resolved as a matter of law unless the verdict one way or the other is demanded by the evidence. Harris v. Escoe (In re Woolston), 147 Bankr. 279 (Bankr. M.D. Ga. 1992). Corporations as partners. - Several Georgia and Tennessee corporations were partners in the ownership and operation of a hospital, because each corporation had an ownership interest in the hospital, which was operated by the parties as a business for profit. DM II, Ltd. v. Hospital Corp. of Am., 130 F.R.D. 469 (N.D. Ga. 1989). Partners in developing mobile home park. - Parties who agreed to make equal contributions, agreed to share the profits of the mobile home park, and met to discuss development and the business affairs of the mobile home park, were partners. Harris v. Escoe (In re Woolston), 147 Bankr. 279 (Bankr. M.D. Ga. 1992). Partnership not found. - There was evidence that spouses had no partnership as to a leasing business in case in which the husband testified that there was no partnership and that he never intended to form a commercial partnership with the wife, there were no documents indicating that there was a partnership, proceeds from the business were transferred to the parties’ joint checking account without any portion going to either spouse individually, and neither the parties’ accountant nor their banker heard of a partnership. Rosenfeld v. Rosenfeld, 286 Ga. App. 61, 648 S.E.2d 399 (2007), cert. denied, 2007 Ga. LEXIS 613 (Ga. 2007). In a separate suit arising out of a divorce action in which a wife sued the husband for breach of fiduciary duty and other claims based on an alleged commercial partnership involving a leasing business between the couple, the trial court did not abuse its discretion in denying the wife’s motion for a new trial because some evidence showed that no partnership existed between the parties; the evidence included: the husband unequivocally testifying that there was no partnership and

that the husband never intended to form a commercial partnership with the wife; and no documents reflected that a partnership existed as there was no written partnership agreement, no correspondence referencing a partnership, no partnership tax returns, no checking account in the name of a partnership, no tax identification number issued to a partnership, and no documents showing that any real or personal property was owned by a partnership entity. Rosenfeld v. Rosenfeld, 286 Ga. App. 61, 648 S.E.2d 399 (2007), cert. denied, 2007 Ga. LEXIS 613 (Ga. 2007). Although the parties formed a contract to create a partnership under O.C.G.A. § 14-8-6 to create and own the screenplay, the partnership did not include producing the screenplay into a movie because the partner’s tasks in the agreement did not concern producing a movie, and the contract expressly provided that it was ‘‘for the creation of a long form feature film script’’ and did not mention producing the screenplay into a film. Richards v. Platz, No. 1:10-cv-2262-TCB, 2013 U.S. Dist. LEXIS 13953 (N.D. Ga. Jan. 30, 2013). Partnership found. - Parties formed a contract to create a partnership under O.C.G.A. § 14-8-6 to create and own the screenplay because the contract’s provision that the parties would own the screenplay in full partnership evidenced the parties’ intent to become partners in ownership of the screenplay and the agreement’s provision that the parties be ‘‘active partners’’ also indicated a partnership for ‘‘creation’’ of a screenplay. Richards v. Platz, No. 1:10-cv-2262-TCB, 2013 U.S. Dist. LEXIS 13953 (N.D. Ga. Jan. 30, 2013). Cited in Maryland Cas. Co. v. Benefield, 664 F. Supp. 1429 (N.D. Ga. 1987); Lane v. Spragg, 224 Ga. App. 606, 481 S.E.2d 592 (1997); Beeson v. Crouch, 227 Ga. App. 578, 490 S.E.2d 118 (1997); Peacock v. Chegwidden, 238 Ga. App. 328, 518 S.E.2d 760 (1999); Aaron Rents, Inc. v. Fourteenth St. Venture, L.P., 243 Ga. App. 746, 533 S.E.2d 759 (2000); Cypress Ins. Co. v. Duncan, 281 Ga. App. 469, 636 S.E.2d 159 (2006).

CORPORATIONS & PARTNERSHIPS

RESEARCH REFERENCES Am. Jur. 2d. - 59A Am. Jur. 2d, Partnership, § 1 et seq.

C.J.S. - 68 C.J.S., Partnership, § 1.