(3) Subsection (2)
does not affect the liability of a partner in a registered limited liability partnership for any of the following:
The partner's own omissions, negligence, wrongful acts, misconduct or malpractice.
The omissions, negligence, wrongful acts, misconduct or malpractice of any person acting under the partner's actual supervision and control in the specific activity in which the omissions, negligence, wrongful acts, misconduct or malpractice occurred.
Any other debts, obligations and liabilities resulting from the partner's acts or conduct other than as a partner.
A partner in a registered limited liability partnership is not a proper defendant in a proceeding to recover damages or to enforce obligations of the type described in sub. (2)
unless the partner is alleged in good faith to be personally liable under sub. (3)
History: 1995 a. 97
Partnership by estoppel. 178.13(1)
When a person, by words spoken or written or by conduct, represents himself or herself, or consents to another representing him or her to anyone, as a partner in an existing partnership or with one or more persons not actual partners, he or she is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership and, if he or she has made such representation or consented to its being made in a public manner, he or she is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made, as follows:
If a partnership liability results, he or she is liable as though he or she were an actual member of the partnership.
If no partnership liability results, he or she is liable jointly with the other persons, if any, so consenting to the contract or representation as to incur liability, otherwise separately.
When a person has been thus represented to be a partner in an existing partnership, or with one or more persons not actual partners, that person is an agent of the persons consenting to such representation to bind them to the same extent and in the same manner as though that person were a partner in fact, with respect to persons who rely upon the representation. Where all the members of the existing partnership consent to the representation, a partnership act or obligation results; but in all other cases it is the joint act or obligation of the person acting and the persons consenting to the representation.
History: 1993 a. 482
; 1997 a. 254
Under Wis. Tel. Co. v. Lehman
, 274 Wis. 331, partnership by estoppel involves some express or implied representation by the person in question that he or she is a partner, in reasonable and bona fide reliance upon which the person seeking to hold him or her liable as a partner has changed position, in such a manner that he or she will be prejudiced if the representation is denied. The party seeking to hold another liable as a partner must, in the exercise of reasonable prudence and good faith, have relied upon such condition or thing and been misled by it. Given the 50-year-old precedent, it appears that estoppel may be based on a change in position and is not limited to an extension of credit. Glazer v. Brookhouse, 471 F. Supp. 2d 945
Liability of incoming partner.
A person admitted as a partner into an existing partnership is liable for all the obligations of the partnership arising before that person's admission as though that person had been a partner when such obligations were incurred, except that this liability shall be satisfied only out of partnership property.
History: 1993 a. 482
Rights and duties of partners.
The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the following rules:
Each partner shall be repaid that partner's contributions, whether by way of capital or advances to the partnership property and share equally in the profits and surplus remaining after all liabilities, including those to partners, are satisfied; and, except as provided in s. 178.12 (2)
, each partner must contribute towards the losses, whether of capital or otherwise, sustained by the partnership according to that partner's share in the profits.
The partnership must indemnify every partner in respect of payments made and personal liabilities reasonably incurred by him or her in the ordinary and proper conduct of the partnership's business, or for the preservation of the partnership's business or property.
A partner, who in aid of the partnership makes any payment or advance beyond the amount of capital which he or she agreed to contribute, shall be paid interest from the date of the payment or advance.
A partner shall receive interest on the capital contributed by him or her only from the date when repayment should be made.
All partners have equal rights in the management and conduct of the partnership business.
No partner is entitled to remuneration for acting in the partnership business, except that a surviving partner is entitled to reasonable compensation for his or her services in winding up the partnership affairs.
No person can become a member of a partnership without the consent of all the partners.
Any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners; but no act in contravention of any agreement between the partners may be done rightfully without the consent of all the partners.
History: 1993 a. 482
; 1995 a. 97
Sub. (6) allows extra compensation only when a partnership is dissolved due to the death of a partner and there is a surviving partner. It did not apply when a partner's decision to retire dissolved the partnership, but the business of the partnership had not been wound up at the time of the retiring partner's death 6 months later. Estate of Matteson v. Matteson, 2008 WI 48
, 309 Wis. 2d 311
, 749 N.W.2d 557
Under the default rules set forth in ch. 178, there is only one exception to the general rule that no partner is entitled to remuneration for acting in the partnership business. A partner is entitled to extra compensation if he or she is a "surviving partner" under sub. (6). Wisconsin courts have strictly construed the term "surviving partner" to apply only to those partners who have survived another partner's death. Bushard v. Reisman, 2011 WI 51
, 334 Wis. 2d 571
, 800 N.W.2d 373
The partnership books shall be kept, subject to any agreement between the partners, at the principal place of business of the partnership, and every partner shall at all times have access to and may inspect and copy any of them.
Partners must render information.
Partners shall render on demand true and full information of all things affecting the partnership to any partner or the legal representative of any deceased partner or partner under legal disability.
Partner accountable as fiduciary. 178.18(1)
Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him or her without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him or her of partnership property.
This section applies also to the representatives of a deceased partner engaged in the liquidation of the affairs of the partnership as the personal representatives of the last surviving partner.
History: 1993 a. 482
Right to an account.
Any partner shall have the right to a formal account as to partnership affairs in any of the following circumstances:
If that partner is wrongfully excluded from the partnership business or possession of its property by his or her copartners.
If the right exists under the terms of any agreement.
If other circumstances render it just and reasonable.
History: 1993 a. 482
After fixed term partnership continues as partnership at will. 178.20(1)(1)
When a partnership for a fixed term or particular undertaking is continued after the termination of such term or particular undertaking without any express agreement, the rights and duties of the partners remain the same as they were at such termination, so far as is consistent with a partnership at will.
A continuation of the business by the partners or such of them as habitually acted therein during the term, without any settlement or liquidation of the partnership affairs, is prima facie evidence of a continuation of the partnership.
Property rights of partner. 178.21(1)
The property rights of a partner are that partner's rights in specific partnership property, that partner's interest in the partnership, and his or her right to participate in the management.
A partner is co-owner with the other partners of specific partnership property holding as a tenant in partnership.
The incidents of this tenancy are such that:
A partner, subject to the provisions of this chapter and to any agreement between the partners, has an equal right with the other partners to possess specific partnership property for partnership purposes; but a partner has no right to possess such property for any other purpose without the consent of the other partners.
A partner's right in specific partnership property is not assignable except in connection with the assignment of the rights of all the partners in the same property.
A partner's right in specific partnership property is not subject to attachment or execution, except on a claim against the partnership. When partnership property is attached for a partnership debt the partners, or any of them, or the representatives of a deceased partner, cannot claim any right under the homestead or exemption laws.
On the death of a partner the partner's right in specific partnership property vests in the surviving partner or partners, except where the deceased was the last surviving partner, when the partner's right in such property vests in the partner's legal representative. Such surviving partner or partners, or the legal representative of the last surviving partner, has no right to possess the partnership property for any but a partnership purpose.
A partner's right in specific partnership property is not subject to elective rights under s. 861.02 (1)
of a surviving spouse or to allowances to a surviving spouse, heirs, or next of kin.
As to sub. (3) (e), see notes in 1985 Wis. Act 37
, marital property trailer bill.
Partner's interest in partnership.
A partner's interest in the partnership is the partner's share of the profits and surplus, and the same is personal property.
History: 1993 a. 482
Assignment of partner's interest. 178.23(1)
A conveyance by a partner of the partner's interest in the partnership does not of itself dissolve the partnership, nor, as against the other partners in the absence of agreement, entitle the assignee, during the continuance of the partnership, to interfere in the management or administration of the partnership business or affairs, or to require any information or account of partnership transactions, or to inspect the partnership books; but it merely entitles the assignee to receive in accordance with the assignee's contract the profits to which the assigning partner would otherwise be entitled.
In case of a dissolution of the partnership, the assignee is entitled to receive the assignor's interest and may require an account from the date only of the last account agreed to by all the partners.
History: 1993 a. 482
A partner's interest in partnership property is assignable by inter vivos gift, provided the elements of such a gift are established. Estate of Schreiber, 68 Wis. 2d 135
, 227 N.W.2d 917
Partner's interest chargeable as such with judgment lien. 178.24(1)(1)
On due application to a competent court by any judgment creditor of a partner, the court which entered the judgment, order or decree, or any other court, may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later appoint a receiver of the debtor partner's share of the profits, and of any other money due or to fall due to the debtor partner in respect to the partnership, and make all other orders, directions, accounts and inquiries which the debtor partner might have made, or which the circumstances of the case may require.
The interest charged may be redeemed at any time before foreclosure, or in case of a sale being directed by the court may be purchased without thereby causing a dissolution:
With separate property, by any one or more of the partners; or
With partnership property, by any one or more of the partners with the consent of all the partners whose interests are not so charged or sold.
Nothing in this chapter shall be held to deprive a partner of the partner's right, if any, under the exemption laws, as regards the partner's interest in the partnership.
History: 1993 a. 482
; 1999 a. 83
Dissolution of partnership defined. 178.25(1)
The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business.
On dissolution the partnership is not terminated, but continues until the winding up of partnership affairs is completed.
Causes of dissolution.
Dissolution is caused:
Without violation of the agreement between the partners (a) by the termination of the definite term or particular undertaking specified in the agreement, (b) by the express will of any partner when no definite term or particular undertaking is specified, (c) by the express will of all the partners who have not assigned their interests or suffered them to be charged for their separate debts, either before or after the termination of any specified term or particular undertaking, (d) by the expulsion of any partner from the business bona fide in accordance with such a power conferred by the agreement between the partners;
In contravention of the agreement between the partners, where the circumstances do not permit a dissolution under any other provision of this section, by the express will of any partner at any time;
By any event which makes it unlawful for the business of the partnership to be carried on or for the members to carry it on in partnership;
By the bankruptcy of any partner or the partnership;
Dissolution by decree of court. 178.27(1)
On application by or for a partner the court shall decree a dissolution whenever any of the following applies:
A partner has been declared a lunatic in any judicial proceeding or is shown to be of unsound mind.
A partner becomes in any other way incapable of performing the partner's part of the partnership contract.
A partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business.
A partner willfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself or herself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him or her.
The business of the partnership can only be carried on at a loss.
Other circumstances render a dissolution equitable.
After the termination of the specified term or particular undertaking;
At any time if the partnership was a partnership at will when the interest was assigned or when the charging order was issued.