Facts
Angus and Brian are both experienced potters. On 10 January 2010, they had a meeting at which they decided that they would begin to work together. They agreed that,
on 30 January, Angus would come to work with Brian in Brian’s large studio. They would expend all their efforts in jointly producing large one-off pieces. These
would be top-of-the-range in terms of quality and collectability. At that meeting they did not discuss in detail what the aims of this joint project would be. The
skills of the two men complement each other well, and working together would mean producing pieces neither person could produce alone. Both agreed that they would try
to sell the pieces and would split the proceeds of sale in equal shares. If they failed to sell any pieces, then it was nevertheless a great way to enjoy a hobby
together.
On 20 January Brian bought a new kiln at a cost of £10,000. His old kiln was broken and could not be fixed. At their meeting on 10 January Brian had discussed with
Angus the fact that they would need a new kiln to carry out their work and Angus had agreed that this purchase was necessary. The kiln was delivered to Brian’s studio
on 25 January.
On 30 January Angus moved his tools into Brian’s studio and the two began to work together.
During February and March they created one piece but all their efforts to sell it were unsuccessful. It is a large piece which they attempted to sell for £15,000.
Angus has taken the piece home for safe-keeping.
Quite quickly the relationship between the two became sour. After several arguments Angus moved his tools out of the studio on 15 July 2010, saying that he no longer
wished to have anything further to do with Brian. From that date, the two had no further direct communication whatsoever.
In September 2010, Angus was very surprised to receive a phone call from a local gallery, Art World. After a long telephone discussion he realised that, following the
cessation of his communications with Brian on 15 July, Brian had contacted Art World and had offered to sell their one piece to them at a knock down price of £10,000.
Art World had accepted this offer and is now looking for delivery.
Brian explained to his solicitors that, as far as he is concerned, he and Angus had entered into business together. The kiln was bought for the purpose of this
business. Because Angus had refused to allow Brian to use partnership funds to pay for the kiln, Brian felt that he had no option but to sell the piece to Art World
to cover the cost of the kiln. Brian now wants to deliver the piece to Art World as agreed.
Angus explained to his solicitors that he did not consider that he had entered into any business with Brian. This was really a hobby. Only half-hearted attempts to
sell the one piece were made. He had assumed that the kiln was bought by Brian personally, and that Brian was happy for the two of them to use it for no charge. A
lifetime contribution exhibition of Angus’s work has recently taken place in London, and he has been told that the piece he made with Brian could be sold for £50,000.
On no account, Angus argues, should it be sold to Art World. In any event, even if Angus and Brian had entered into a business together, the business had ended by the
time Brian purported to sell the piece to Art World.
Assume that all the facts set out above are true and can be proved.
The court action
Brian raises an action against Angus. Art World is joined as a third party in the action, given their interest in the piece. Brian argues:
(a) Brian and Angus entered into a partnership in terms of the Partnership Act 1890 on 10 January 2010. Brian would like a declarator that the partnership existed
from this point.
(b) The kiln is partnership property. The total cost of the kiln should be taken from partnership funds: in effect, Angus must pay Brian half of the cost of the
kiln.
(c) Brian would like the court to grant a decree of specific implement, requiring Angus to deliver the piece to Artworld in implement of the binding contract
between the partnership and Artworld.
Angus argues:
(a) There was no partnership at any point.
(b) Even if there was, the kiln was Brian’s property. It is not partnership property having been purchased before the partnership came into existence. Neither
the partnership nor Angus has any liability to reimburse Brian for any part of the cost of the kiln.
(c) The contract with Art World is not binding, Brian having purported to enter into it on behalf of the partnership at a time when the partnership had already
been dissolved. Angus terminated the partnership through his words and actions on 15 July. The piece is owned jointly by Angus and Brian.
Instructions
In the first tutorial, your tutor will tell you which people in the tutorial will be taking part in the partnership moot. Six people only will take part in the
partnership moot: the remaining people in the tutorial group will watch and give feedback. There is another tutorial on company law in this course later in the
semester and the remaining six people in the tutorial will participate in that moot.
If you are one of the participants in the partnership moot, you are required to prepare a submission, i.e. a short speech setting out your argument (individual
instructions on the nature of the argument are provided for each person below). Your speech should last only 5 minutes. In the first tutorial, your tutor will tell
you which of team A or B you are in, and which of Persons 1-6 you are. You should then work on your submission and be able to present it in tutorial 2. You will
likely find it helpful to have notes of your submission to refer to when delivering it.
In the week between tutorial 1 and tutorial 2 you should prepare a list comprising (a) the statutory provisions you will be relying on in your speech; and (b) 1 or 2
cases which you will be relying on in your speech to help your argument. You must put this together with the lists provided by your team members. This will allow you
to produce a list of all the statutory provisions and the cases that your team seeks to rely on. At least twenty four hours before tutorial 2 your team must deliver
this list both to the other team and to the tutor. You will receive from the other team a note of their authorities. You should check out what the other team is
relying on. That allows you to anticipate, and try to defeat, their arguments. In tutorial one you should agree with the other team how this exchange will happen,
e.g. by email or a meeting.
See individual instructions for each participant below. You can ignore Art World’s involvement in the action – they are separately represented. Your tutor is the
judge.
Team A (comprising Person 1, Person 2 and Person 3)
This team is acting for Angus.
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