South Australian Current Acts

PARTNERSHIP ACT 1891 - SECT 2

2—Rules for determining existence of partnership

        (1)         In determining whether a partnership does or does not exist, regard must be had to the following rules:

            (a)         joint tenancy, tenancy in common, joint property, common property, or part ownership does not of itself create a partnership as to anything so held or owned, whether the tenants or owners do or do not share any profits made by the use of the property so held;

            (b)         the sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have or do not have a joint or common right or interest in any property from which or from the use of which the returns are derived;

            (c)         the receipt by a person of a share of the profits of a business is prima facie evidence that the person is a partner in the business; but the receipt of such a share, or of a payment contingent on or varying with the profits of a business, does not of itself make the person a partner in the business; and, in particular—

                  (i)         the receipt by a person of a debt or other liquidated amount, by instalments or otherwise, out of the accruing profits of a business, does not of itself make the person a partner in the business or liable as such;

                  (ii)         a contract for the remuneration of a servant or agent of a person engaged in a business, by a share of the profits of the business, does not of itself make the servant or agent a partner in the business or liable as such;

                  (iii)         a person being the spouse, domestic partner or child of a deceased partner, and receiving by way of annuity a portion of the profits made in the business in which the deceased person was a partner, is not by reason only of such receipt a partner in the business or liable as such;

                  (iv)         the advance of money by way of loan to a person engaged or about to engage in any business, on a contract with that person that the lender will receive a rate of interest varying with the profits, or will receive a share of the profits arising from carrying on the business, does not of itself make the lender a partner with the person or persons carrying on the business or liable as such if the contract is in writing and is signed by or on behalf of all the parties to the contract;

                  (v)         a person receiving, by way of annuity or otherwise, a portion of the profits of a business in consideration of the sale by the person of the goodwill of the business, is not by reason only of such receipt a partner in the business or liable as such.

        (2)         This section does not apply to or in respect of an incorporated limited partnership.