Joint Committee on Legislation debate -
Friday, 29 Mar 1985

SECTION 36.

Deputy Noonan (Limerick East)

I move amendment No. 1:

In page 16, between lines 14 and 15, to insert the following new subsection:—

"(2) Notwithstanding anything contained in subsection (1) no order of adjudication shall be made against a firm in the firm name but it shall be made against the partners individually with the addition of the firm name.".

The reason for this amendment is to ensure that the section, which allows partners to take proceedings or be proceeded against under the Act in the name of the firm, is not taken to mean that a partnership or firm can be adjudicated.

Under existing bankruptcy law an adjudication order cannot be made against a partnership and section 36 is not intended to change that situation. An adjudication can, however, be made against each of the partners individually.

Senator O'Leary

I agree with that, it did certainly need clarification.

Amendment agreed to.

Question proposed: "That section 36 stand part of the Bill."

Deputy Noonan (Limerick East)

I think it will be better if I read the note on the section for the record.

It is a new provision. Although the rules of the Superior Courts deal in a general way with proceedings by and against firms, the committee recommended a provision to deal specifically with bankruptcy proceedings. Accordingly, the section provides that partners may take proceedings or be proceeded against under the Bill in the name of the firm but the court, on the application of an interested party, may order the names of the partners to be disclosed.

The object of the rule from which the section derives was to get over the difficulty created by the fact that an action could not be brought against a firm in the name of the firm because the partnership had been dissolved before the issue of proceedings.

The rule provides a convenient procedure by enabling co-partners to be sued in the name of the firm who were co-partners at the time of the accruing of the course of action. Whether a person was a partner when the action accrued could then be decided in the proceedings.

Question put and agreed to.