- 20 Marks
BCL – L1 – Q59 – Alternative forms and constitutions of business organisations
Question
Ama, Dela, and John were classmates from ICAG 2014 batch of graduates. They intend to form a consultancy firm/partnership in the future by pooling resources together. Ama’s 2005 Toyota Siena estimated at GH¢40,000 will be her initial capital contribution towards the formation of the partnership. However, the car is currently registered in the name of her father, Mr. Addo, a 59-year-old Chief Accountant for Zenith Energy Limited, who desires to be part of the daughter’s business upon retirement and will not let go of title to the car without any benefit. Dela and John, who are contributing GH¢30,000 each of the initial capital, are opposed to any ‘old-school’ accountant being part of their partnership.
You are the most-rated business law student. Advise the parties.
Answer
AMA:
- Ama cannot use the car as her contribution to capital whilst it is still in the name of her father.
- She must convince her father to transfer ownership/title of the car to her first.
- Failure of ownership transfer of the car by her father, she can look for other sources of funding/financing e.g. loans for her partnership contribution.
- She can opt to be a paid/salaried staff of the firm instead of being a partner.
- She and her father, Mr. Addo, can start their own partnership upon his retirement—partnership requires two or more individuals. She need not necessarily be with Dela and John.
DELA/JOHN:
- They can form their own partnership without Ama if they are unable to resolve the issue of Ama’s capital contribution and her father’s involvement in the firm.
- GH¢30,000 contribution by each is enough to form a firm—actual cash flow/working capital requirement depends on operations.
- The Toyota Siena must be valued by a professional independent valuer if Ama secures it from her father as her initial capital contribution.
- Any loan secured by Ama must be in her individual name (not in the partnership name) to avoid a liability by the firm.
- The partnership agreement must clearly state the rights and obligations of partners to avoid future controversy e.g. right of management and control, profit sharing ratio etc.
- Ama must not hold herself out or act in any way as partner to encumber the firm if she becomes a salaried staff.
MR. ADDO:
- His age or ‘old-school’ is not a limitation of being a partner.
- His ownership of the car cannot be used as a coercive instrument to be a partner—he can willingly transfer the car to the daughter by gift/sales or the two can form their own firm.
- The car, upon transfer to Ama/firm, becomes partnership asset and his title is extinguished.
- He becomes a partner upon consensus/agreement by Ama, Dela, and John.
- He must observe and avoid any conflict of interest/self-dealings between the Partnership (if formed with him, Ama, or both) and Zenith Energy Limited.
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