PARTNERSHIPS (re-committed) BILL. (Hansard, 29 June 1882)

§ MR. HORACE DAVEY
objected to the definition of trader in the clause, and moved the omission of the words from "trader," in line 15, to the word "Act," in line 16, inclusive.

§ MR. CHAMBERLAIN
said, he could not agree to the Amendment without some further explanation. There was another reference to these words in Clause 26; and he understood his hon. and learned Friend proposed to omit that clause; but it seemed to him a most important part of the Bill. He could not conceive that a Bill intended to consolidate the Law of Partnership could omit all reference to those important powers of partnerships contained in Clause 26. He would agree to a compromise in regard to the Schedules; but he thought the object would be better met by an alternative definition. He would suggest that traders should be defined to be all persons that were defined as traders under the Bankruptcy Law in force. As his hon. and learned Friend knew, the Government—as other Governments had—indulged in the hope of effecting an amendment of the Bankruptcy Law, and Amendments then made might alter the definition of trader; and it was very desirable that the Law of Partnerships should be consistent with the Bankruptcy Law.

§ MR. HORACE DAVEY
said, he could not agree to this, and argued that there 897 was no definition of trading in the clause, so far as partnership was concerned. It was quite true that there were certain things done which, in a popular sense, were said to be acts by which partners might bind themselves; but when examined they would be found to be only particular examples of a larger principle which was correctly stated in Clause 24. It might be well enough to insert it in a handbook for beginners; but it was not a scientific definition such as should be inserted in an Act of Parliament. It was quite sufficient to say that the act of any partner, an act usually done in the carrying on of the business, should bind the partners. If the business carried on was of such a character that it was usual or necessary that a bill of exchange should be drawn or accepted, it would be understood that one partner bound the firm by such; but by no particular example could a man be understood to be a trader or not. The definition did not include a farmer, but it did an auctioneer, who could bind his partner, while a farmer could not; but one would think that a bill of exchange would be as likely to be used in the one business as in the other. They could not get any definition of a trader that was perfect. In the first place, some businesses were trading firms in one respect and not in another; for instance, two medical men, who were also apothecaries, in one point of view they would be traders and in another they would not. And, then, take another instance; from time to time new trades arose, as necessity called them into existence—electricity, telephones, the electric light, came into use; and there would be manufactures of all kinds of things that would not come under any definition. The only scientific way of dealing with this was to leave out traders and trading partnerships, and to rely on the statement of general principle contained in Clause 24.

§ MR. MONK
said, he was willing to accept this Amendment, for he considered that the definition which had been copied from the Bankruptcy Act was not altogether a satisfactory one. He would even go further, and admit that Clause 26 was not absolutely necessary in a Consolidation Bill. It was doubtless drawn in accordance with the law as it stood at present; but still Clause 24, as had been stated, fully sup- 898 plied all that was required. Under the circumstances, he hoped his right hon. Friend would not think it necessary to oppose this omission.

§ MR. HORACE DAVEY
said, he had Amendments to this clause, one to strike out the clause altogether, and another to omit Sub-section 2. In the first place, he would propose to strike out Subsection 2. This either contained a truism or it was unsound. If it meant that every partnership contract was to be construed according to the true meaning in which it was made, having regard to the relations existing between the parties, then it was a truism, and equally applicable to all contracts as well as partnership contracts. There was no difference in them that he was aware of. But if, as he could not help thinking, it should be construed that it meant that there was some speciality in partnership contracts, then it was unsound and mischievous. It was clearly not necessary, because if it was true it was part of the Law of Contract, and not of the Law of Partnership; it merely put a construction on contracts generally. As it stood it was very much calculated to mislead. He could not help thinking that the uninstructed mind would be much misled by reading this, and that it would induce attempts to introduce evidence of extraneous facts for putting some different meaning on the true meaning of partnership contracts.

§ MR. MONK
admitted there was a great deal of force in what had been said, especially about the uncertainty in the sub-section. He believed it was rather calculated to mislead, and there- 899 fore he would agree to its omission; but as to the clause he would have something further to say.

§ MR. MONK
said, he was sorry he could not agree with his hon. and learned Friend here. He had referred to what was acknowledged to be the first textbook on the Law of Partnership, and in that book, he said, Lord Justice Lindley declined to define a partnership; but he (Mr. Monk) was entitled to say that Lord Justice Lindley had approved of this definition, and it had received his sanction as a proper definition at law. When they reached a subsequent clause defining what was not a partnership, he should be prepared to defend that portion of the Bill.