共同事業のデフォルト・ルール

Default Rules on Joint Enterprise

Matsubara Shoji

広島法科大学院論集

Hiroshima Law Review

[ISSN] 1880-1897

[NCID] AA12028691

In the U.S., the general partnership has been characterized as the default form of co-owned and for-profit business organization. In the general partnership, each party has fiduciary duty to each other. Then, can parties contract out of the general partnership form of business organization, even if their conduct would otherwise establish a partnership ? In the 2020 decision of the Supreme Court of Texas decided that, as between themselves, parties could avoid a partnership characterization by agreeing no to be partners.
In this article, I have introduced three articles about this Supreme Court decision, Douglas K. Moll, Joseph K. Leahy and Emeka Duruigbo. Moll argues whether can parties contract out of partnership. Leahy contends LLC is the key in the problem of inadvertent partnership. Duruigbo considers inadvertent partnerships and fiduciary duties.
When two or more people want to operate joint enterprise, unless they have filed as corporation or limited liability company, that enterprise is partnership. In Japan, it is so-called "partnership in Civil Code". In this case, each party has duty of care to each other and to the partnership. Partnership is one of the contracts in Japan. But we never have argued when a partnership is deemed to be established. In the event like Texas Supreme Court decision, it may be that partnership would not be established. This article suggests that default rules of partnerships should extend to that case.

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広島大学法学会

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