LD 1609
pg. 59
Page 58 of 148 An Act To Establish the Uniform Partnership Act Page 60 of 148
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LR 1469
Item 1

 
UPA reference to a "surviving" partner. That means any partner
winding up the business is entitled to compensation, not just a
surviving partner winding up after the death of another partner.
The exception is not intended to apply in the hypothetical winding
up that takes place if there is a buyout under Article 7.

 
10. Subsection (i) continues the substance of UPA Section
18(g) that no person can become a partner without the consent of
all the partners.

 
11. Subsection (j) continues with one important clarification
the UPA Section 18(h) scheme of allocating management authority
among the partners. In the absence of an agreement to the
contrary, matters arising in the ordinary course of the business
may be decided by a majority of the partners. Amendments to the
partnership agreement and matters outside the ordinary course of
the partnership business require unanimous consent of the
partners. Although the text of the UPA is silent regarding
extraordinary matters, courts have generally required the consent
of all partners for those matters. See, e.g., Paciaroni v.
Crane, 408 A.2d 946 (Del. Ch. 1989); Thomas v. Marvin E. Jewell &
Co., 232 Neb. 261, 440 N.W.2d 437 (1989); Duell v. Hancock, 83
A.D.2d 762, 443 N.Y.S.2d 490 (1981).

 
It is not intended that subsection (j) embrace a claim for an
objection to a partnership decision that is not discovered until
after the fact. There is no cause of action based on that after-
the-fact second-guessing.

 
12. Subsection (k) is new and was added to make it clear that
Section 301 governs partners' agency power to bind the
partnership to third persons, while Section 401 governs partners'
rights among themselves.

 
§1042.__Distributions in kind

 
A partner has no right to receive, and may not be required to
accept, a distribution in kind.

 
Comment

 
(This is Section 402 of the Uniform Partnership Act (1997).)

 
Section 402 provides that a partner has no right to demand and
receive a distribution in kind and may not be required to take a
distribution in kind. That continues the "in kind" rule of UPA
Section 38(l). The new language is suggested by RULPA Section
605.


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