Liability of Partners After Exiting a Partnership in England

In Short

• Leaving a partnership doesn’t automatically free you of liability for debts incurred while you were a partner, and you could still be liable for new debts unless third parties know you’ve left.
• A clear, written partnership agreement can define how your liability ends and should include measures like novation, indemnities and published notice to protect you.
  
• Without proper notice (actual or constructive) to creditors, you might be treated as still being a partner and asked to meet obligations entered into after your departure.

Tips for Businesses

Make sure your partnership agreement sets out how an exit will affect your liability and arrange for formal notice of your departure. Seek an indemnity from remaining partners and publish notice (for example via The Gazette) so creditors can’t claim you still have duties you thought were finished.

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Table of Contents

• Partnerships as Unincorporated Entities 
• Liability of Ex-Partners 
• Practical Considerations
• Key Takeaways 
• Frequently Asked Questions

If you are or were a partner in a general partnership, you may wonder what your liability is after leaving a partnership. There are set rules that govern an ex-partner’s liability to the partnership after they leave. Understanding these rules is crucial for protecting your personal assets and ensuring you are not unfairly held responsible for partnership debts incurred after your departure. This article will explore the implications of having a well-drafted partnership agreement and provide guidance on the necessary steps to mitigate potential liabilities through:

• novation;
• indemnities; and
• insurance policies.

Partnerships as Unincorporated Entities 

A partnership arises automatically when two or more people act together with a common intent to make a profit. For the purpose of this article, we will focus on general partnerships, i.e not limited liability partnerships. Unlike a company, a partnership is not a separate entity from its partners. As a result, it cannot enter into contracts, nor can anyone else sue the partnership. 

Each partner is personally liable for the partnership’s entire debts. Any partner who signs a contract in the name of the partnership binds the other partners, regardless of whether the other partners had any knowledge of it. Consequently, if a partner promises to pay a supplier, even if they do not consult other partners, the supplier can pursue each individual partner for payment under the agreement. It follows that each partner has unlimited liability for the partnership’s debts and obligations. It is also important to note that any profits generated by the partnership will be divided equally between the partners, unless otherwise set out in a partnership agreement. Partners will be liable to pay income tax on their share of the profits.

Partnership Agreements

A partnership agreement specifies the terms of the relationship between and among the partners. It is a contract that you can enforce between and among the partners. 

Where there is no partnership agreement, or the agreement is silent on a particular issue, the law will imply its own terms from the Partnership Act 1890. As many terms are outdated and often contrary to modern practices, it is best practice to draft a thorough partnership agreement tailored to your business’s circumstances.

Liability of Ex-Partners 

Liability Incurred While a Partner

If your partnership entered into an agreement with a supplier while you were still a partner, the supplier can legally chase you for the debt. This is true even if you are no longer a partner but were a partner when the contract was entered into.

However, you may be released from your liability if:

• the partners amend the agreement with the supplier, expressly removing your liability; and 
• the supplier agrees to the amendment. 

Liability Incurred After You Left 

In certain circumstances, you can be liable for any debts the partnership has incurred, even after you leave the partnership. For this to happen, the third-party creditor must have known that you were a partner and had no notice that you left the partnership before they entered into the new agreement that created the liability. 

The law considers notice to be either:

• actual; or 
• constructive.

Actual Knowledge 

Actual notice is where the third-party creditor possessed factual knowledge that you were no longer a partner. A key condition is that the creditor must have had actual dealings with you. 

Constructive Knowledge 

The law treats a third-party creditor as having constructive knowledge of a partner’s exit when the partnership publishes a notice in the London Gazette. The creditor does not have to have actual dealings with you for the law to say that the creditor has constructive knowledge of your departure. 

Effect of Notice

The effect is that, provided either the creditor has actual or constructive notice, if they subsequently enter into an agreement with your former partnership, you are not liable for the terms of the agreement. 

Practical Considerations

If your partnership lacks any agreement or is silent about your liability towards the partnership after you leave, you are clearly in a vulnerable position. In effect, if the partnership’s creditor chooses to go after you, it has a claim against you unless:

• the partnership and the creditor have novated the agreement; or 
• the partnership enters into an agreement after you leave, and the creditor has actual or constructive knowledge of your exit. 

Of course, the partnership may refuse to grant you an indemnity. Alternatively, there may be insufficient assets to cover their liabilities, so the creditor sees your personal assets as the quickest way to settle the debt. 

Drafting the Partnership Agreement

For the reasons outlined above, it is always advisable to draft the partnership agreement so that your liability ends upon your departure. 

In practice, this will involve an indemnity or settlement agreement between the outgoing partner (you) and the current partners. It will typically entitle you to seek an indemnity (reimbursement) from the other partners for any debts or associated costs you incur due to the partnership’s actions. The partnership agreement should also outline how you can leave the partnership and what happens upon your departure.

Typically, the indemnity agreement will not apply if:

• the debt relates to your personal tax liability; or
• it is owed to some negligent or fraudulent activity you undertook either while a partner or after the fact. 

Insurance 

Further, it is prudent that you and your partners obtain an insurance policy that can mitigate any claims affecting you after your departure. 

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Key Takeaways 

Even when you exit a partnership business, you may still be liable for its debts. If you do not have a partnership agreement in place or if it is silent on the matter, the law will imply its own rules into your partnership. Notably:

1. If the partnership incurred the liability (or entered into the agreement giving rise to the liability) while you were still a partner, you are still liable for the debt. 
2. If the partnership incurred the liability or entered into the relevant agreement after you left, you will be liable unless: 

• the creditor had actual dealings with you and had no knowledge that you left the partnership; or 
• the partnership did not publish notice of your absence in the London Gazette. 

If you need help with your business, our experienced business lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.

Frequently Asked Questions