为了帮助考生系统的复习2012年ACCA考试课程全面的了解ACCA考试教材的相关重点，小编特编辑汇总了2012年ACCA考试辅导资料，希望对您参加本次考试有所帮助！

12 Agency and partnership

1 Definition

1.1 An agent (A) is a person who is appointed by another (Principal) to enter into a contract with a third party (TP).

2 Creation of agency

2.1 (a) By consent

(b) By operation of law

(c) By estoppel

(d) By ratification

2.2 Consent

(a) Consent may be express or implied. (Actual authority)

(b) Express authority e.g.. by way of contract.

(c) Implied authority, two persons may by their relationship or conduct to each other imply an agreement between them that on is the agent of the other e.g.. employer and employee, company and company director.

2.3 Operation of law

(a) The most important instance in which agency can arise by operation of law is in the case of agency of necessity.

(b) Conditions:

(i) the agency must have no practical way of contacting the principal to obtain instructions.

(ii) there must be some pressing need for action.

(iii) the agent must have acted bona fide (in good faith)

(iv) the action taken by agent must have been reasonable and prudent.

2.4 Estoppel (see 5.7) below.

2.5 Ratification

(a) The principal must exist and have contractual capacity when contract made.

(b) The principal must have been identified at the time of contract.

(c) The principal must have been made aware of all material facts.

(d) The contract must be valid and legal.

(e) The principal must ratify the whole contract.

(f) Ratification must be within a reasonable time.

3 Duties of an agent

3.1 (a) Performance and obedience.

(b) Reasonable care and skill.

(c) Personal performance.

(d) To be accountable.

(e) No conflict of interest.

(f) No secret profit.

4 Rights of an agent

4.1 (a) Reimbursement of expenses and indemnity.

(b) To be paid (if contractual). If the amount is not specified then a reasonable amount must be paid. If the contract provides for a commission to be paid the commission will become due only once the strict terms of the contract are complied with.

5 Authority of the agent

5.1 In order to bind a principal (P) into a contract with a third party (TP), the agent (A) must have authority.

5.2 There are two types of authority:

(a) Actual

(b) Apparent

5.3 Actual Authority – there are 2 types:

(a) Express

(b) Implied

5.4 Express Actual Authority – authority specifically given to the agent by the Principal.

5.5 Implied Actual Authority – if A is appointed to a particular position that A has authority to do everything usual to that position.

5.6 It is possible to restrict A's implied authority, but to be effective, the TP must know of the limitation. (i.e. implied authority may be less than the apparent authority). Watteau v Fenwick.

5.7 Apparent authority – also occurs where it appears to TPs that A has authority. This may result from P making a representation (by words/action/inaction). Consequently although the agent has no actual authority (be it express or implied) contracts are still binding between P and TP as TP is protected by the 'appearance' of authority and P is stopped (or "estopped") from denying A's authority.

6 Effect of an agent acting without actual, implied or apparent authority

6.1 (a) The purported P will not be bound by the contract.

(b) There is no contract between A and TP as TP did not intend to deal with A personally.

(c) The A will be liable to TP and principal for breach of warrant of authority.

7 Termination of agency

7.1 (a) By act of parties (e.g. notice, performance).

(b) By operation of law (e.g. death, bankruptcy).

8 Partnership law

Definition and formation

8.1 (a) Most of partnership law is contained in Partnership Act 1890 (PA 1890).

(b) Partners can agree that their internal arrangements need not necessarily comply with the provisions of the Act, but certain principles cannot be overridden.

(c) The Act states that:

Partnership is the relation which subsists between persons carrying on a business in common with a view of profit.

(d) The business must be carried on with a view to making a profit, i.e. the partners must intend that they will realise a profit, and be entitled to share in net (not just gross) profits.

(e) Any arrangements falling within the definition will be treated as a partnership regardless of how the people concerned expressly or implicitly consider their status. Conversely, merely calling an arrangement a partnership does not necessarily mean it is one.

(f) In most cases there will be a written agreement, but there is no obligation on partners to set down their arrangements in writing.

Dealings with outsiders

8.2 (a) As a general principle, partners have unlimited, joint and several liability to outsiders ie. an outsider can sue only one or can sue all of the partners.

(b) If a partner bears a liability in this way, he is entitled to claim a contribution from the other partners.

(c) A partner is generally in the same position as a sole trader i.e. his liability is unlimited.

(d) However, a partner will only be liable for debts of the partnership whilst he is, or is held out to be, a partner.

(e) A new partner will therefore only be liable for debts incurred after he has become a partner unless:

(i) he agrees otherwise; or

(ii) he has been held out as a partner e.g. on the notepaper.

(f) A retired partner will be liable for debts incurred before his retirement unless released by creditors and former partners.

(g) A retired partner will be liable for debts incurred after his retirement if:

(i) the creditor has dealt with the partnership before and after the retirement and does not have actual notice of the retirement (so change notepaper etc.);

(ii) the creditor has dealt with the partnership only after the retirement but knew the person was a partner, unless notice has been given in “the Gazette”;

(iii) in any other case where the partner is held out as such e.g. on the notepaper.

Agency in general

8.3 In general, a partner is an agent of the firm and the other partners i.e. may bind them.

(a) He does not as a matter of fact have the authority in a particular type of transaction; and

(b) The third party knows that such authority is absent, or does not know that he is a partner.

Tort

8.4 Liability for wrongdoings committed by a partner authorised by the other partners or in the ordinary course of his firm's business falls on all partners. This is known as vicarious liability.

Tax liabilities

8.5 (a) Tax due under Schedule DI and II is owed individually by each partner on his share of the profits.

(b) The same position applies for other taxes eg. CGT except those which are of the business eg. NIC, PAYE, VAT.

Relationships between partners

8.6 (a) The relationship is one of good faith and specifically under PA 1890:

(i) each partner must give true accounts and full information to the others;

(ii) a partner must account for any profit he makes from using the firm’s name, connections etc.;

(iii) he must account for any profit made in a competing business.

(b) Partners may agree whatever terms they like, but if they do not do so PA 1890 will imply:

(i) entitlement of all partners to manage the business with majority voting, except on fundamental matters (e.g. change of business) where decisions must be unanimous;

(ii) profits and losses to be shared equally, losses in same ratio as profits;

(iii) no interest on original capital: 5% pa. on further amounts.

Partnership property

8.7 (a) Initial property of partnership is that which the partners agree is to be partnership property (intention of partners is paramount).

(b) Property acquired afterwards subject to the same principle but if bought with partnership money will always be partnership property.

Dissolution of the partnership

8.8 (a) can be by:

(i) termination of a fixed term agreement;

(ii) completion of the project if partnership is only created for that project;

(iii) death, bankruptcy or notice of a partner, unless otherwise provided for in the agreement;

(iv) illegality of the partnership;

(v) by Court Order.

(b) on dissolution, unless otherwise agreed (e.g. in partnership agreement) partner can insist on realisation of assets (including goodwill), payment of debts and distribution of surplus.

(c) the order of payment is:

(i) debts to outsiders

(ii) repayment of advances made by partners beyond their initial and subsequent capital contribution

(iii) capital contribution

(iv) residue to be divided in partnership shares.

9 Limited liability partnerships (LLP)

Legal nature

9.1 (a) The firm is a separate legal entity from its members (the partners).

(b) Member's liability is limited to the extent of their agreement.

Constitution and publicity

9.2 (a) No need for memo or articles. Members can enter into a partnership agreement which does not need to be filed at Companies House.

(b) Accounts must be filed at Companies House together with an annual return.

(c) Accounts must be audited although the small and medium sized company exemptions apply.

Formation

9.3 An Incorporation Document must be filed at Companies House stating:

(a) Name of firm (which must end in "LLP").

(b) Situation of registered office (i.e. England and Wales or Scotland).

(c) Address of registered office.

(d) Name of members (partners) on incorporation (and who are designated members)

Changes – in above details must be notified to Registrar in 14 days.

(e) Statement of compliance with statutory requirements.

Members

9.4 (a) Must be at least 2

(b) 2 or more members must be "designated" Only "designated" members need communicate with companies house in relation to e.g. filing of accounts or change of details.

Cessation

9.5 (a) Liability limited to extent of the agreement. There is no minimum liability.

(b) Members can be liable for wrongful and fraudulent trading and disqualification, (see Company law post). Also pursuant to S214A IA86 (as amended)

(c) S214A IA86 provides that a contribution order on insolvency may be made against any partner that has made a withdrawal from the LLP within 2 years prior to winding up. However, the LLP must have been insolvent at the time or become so as a result of the withdrawal.