Partnership 341payment of a debt. However, firms with 20 or more partners do not have to give the names
of all the partners on business documents if three conditions are satisfied. First, the firm
keeps a list of the names and addresses of all the partners at the firm’s main place of busi-
ness. Second, business documents state the address of the firm’s main place of business, and
that a list of all the partners’ names is open for inspection there. Third, the list is available
for inspection during office hours.
If the requirements of ss. 1202 or 1204 are not complied with a criminal offence is com-
mitted and, in some circumstances, contracts made by the firm may be unenforceable by
the partners.
Confusion with other names
If a company registers a name which is too similar to that of a partnership, a complaint can
be made to the Company Names Adjudicator. (See p. 290.)
A passing off action can be brought to prevent partners from trading under a name
which is likely to cause confusion with another business.
In Levy vWalker (1879)James LJ explained the nature of a passing off action:
... it should never be forgotten in these cases that the sole right to restrain anybody from using any
name that he likes in the course of any business that he chooses to carry on is a right in the nature
of a trade mark, that is to say, a man has a right to say ‘you must not use a name whether fictitious
or real, you must not use a description, whether true or not, which is intended to represent, or
is calculated to represent to the world that your business is my business, and so by a fraudulent
misstatement deprive me of the profits of the business which would otherwise come to me’.
Fiduciary duties
Partners are in a fiduciary position to each other and therefore owe each other fiduciary
duties. They cannot agree to generally do away with these duties, although if any particular
breach of duty was consented to by the other partners, those partners will not be able to
claim in respect of that particular breach. The fiduciary duties are broad and cannot be pre-
cisely defined. However, ss. 28 –30 of the Partnership Act 1890 spell out three specific duties;
that partners must render true accounts and information, that they must account for profits,
and that they must not compete with the firm.
Rendering true accounts and information
Section 28 provides: ‘Partners are bound to render true accounts and full information of all
things affecting the partnership to any partner or his legal representatives.’
Croft vDay (1843)A well-known firm of boot polish manufacturers, Day and Martin, carried on business in
Holborn. Two people called ‘Day’ and ‘Martin’ set up as partners making boot polish with
the intention of diverting business from the well-known firm. The established firm applied
for an injunction to prevent Day and Martin from trading in boot polish in their real names.
HeldThe injunction was granted. Although ‘Day’ and ‘Martin’ were the real names of the
defendants, the intention of the partnership was to deceive the public.