3. Subsection (c) provides three rules of construction that apply in determining whether a partnership has been formed under subsection (a). They are largely derived from UPA Section 7, and to that extent no substantive change is intended. The sharing of profits is recast as a rebuttable presumption of a partnership, a more contemporary construction, rather than as prima facie evidence thereof. The protected categories, in which receipt of a share of the profits is not presumed to create a partnership, apply whether the profit share is a single flat percentage or a ratio which varies, for example, after reaching a dollar floor or different levels of profits.

Like its predecessor, RUPA makes no attempt to answer in every case whether a partnership is formed. Whether a relationship is more properly characterized as that of borrower and lender, employer and employee, or landlord and tenant is left to the trier of fact. As under the UPA, a person may function in both partner and nonpartner capacities.

Paragraph (3)(v) adds a new protected category to the list. It shields from the presumption a share of the profits received in payment of interest or other charges on a loan, "including a direct or indirect present or future ownership in the collateral, or rights to income, proceeds, or increase in value derived from the collateral." The quoted language is taken from Section 211 of the Uniform Land Security Interest Act. The purpose of the new language is to protect shared-appreciation mortgages, contingent or other variable or performance-related mortgages, and other equity participation arrangements by clarifying that contingent payments do not presumptively convert lending arrangements into partnerships.

4. Section 202(e) of the 1993 Act stated that partnerships formed under RUPA are general partnerships and that the partners are general partners. That section has been deleted as unnecessary. Limited partners are not "partners" within the meaning of RUPA, however.

§1023.__Partnership property

Property acquired by a partnership is property of the partnership and not of the partners individually.

Comment

(This is Section 203 of the Uniform Partnership Act (1997).)