LD 1609
pg. 94
Page 93 of 148 An Act To Establish the Uniform Partnership Act Page 95 of 148
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LR 1469
Item 1

 
partnership were sold at a price equal to the greater of
liquidation value or going concern value without the departing
partner. Liquidation value is not intended to mean distress sale
value. Under general principles of valuation, the hypothetical
selling price in either case should be the price that a willing and
informed buyer would pay a willing and informed seller, with
neither being under any compulsion to deal. The notion of a
minority discount in determining the buyout price is negated by
valuing the business as a going concern. Other discounts, such as
for a lack of marketability or the loss of a key partner, may be
appropriate, however.

 
Since the buyout price is based on the value of the business
at the time of dissociation, the partnership must pay interest on
the amount due from the date of dissociation until payment to
compensate the dissociating partner for the use of his interest
in the firm. Section 104(b) provides that interest shall be at
the legal rate unless otherwise provided in the partnership
agreement. The UPA Section 42 option of electing a share of the
profits in lieu of interest has been eliminated.

 
UPA Section 38(2)(c)(II) provides that the good will of the
business not be considered in valuing a wrongfully dissociating
partner's interest. The forfeiture of good will rule is
implicitly rejected by RUPA. See Section 602(c) and Comment 3.

 
The Section 701 rules are merely default rules. The partners
may, in the partnership agreement, fix the method or formula for
determining the buyout price and all of the other terms and
conditions of the buyout right. Indeed, the very right to a
buyout itself may be modified, although a provision providing for
a complete forfeiture would probably not be enforceable. See
Section 104(a).

 
4. Subsection (c) provides that the partnership may offset
against the buyout price all amounts owing by the dissociated
partner to the partnership, whether or not presently due,
including any damages for wrongful dissociation under Section
602(c). This has the effect of accelerating payment of amounts
not yet due from the departing partner to the partnership,
including a long-term loan by the partnership to the dissociated
partner. Where appropriate, the amounts not yet due should be
discounted to present value. A dissociating partner, on the
other hand, is not entitled to an add-on for amounts owing to him
by the partnership. Thus, a departing partner who has made a
long-term loan to the partnership must wait for repayment, unless
the terms of the loan agreement provide for acceleration upon
dissociation.


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