Saving for rules of equity and common law (PA 1890 s.46)
The rules of equity and common law for partnerships remain in force unless they are inconsistent with the Partnership Act 1890.
The rules of equity and of common law applicable to partnership shall continue in force except so far as they are inconsistent with the express provisions of this Act.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
This section preserves the existing rules of equity and common law that apply to partnerships. They continue to be in force.
However, those rules are overridden where they are inconsistent with an express provision of the Partnership Act 1890. If the Act says something different, the Act's rule takes precedence.
This means the Act does not create a complete code. Old court-made principles still apply where the Act is silent or where its rules are not directly contradictory.
When it applies
- A partner secretly competes with the partnership, and the partners argue about whether the equitable duty of good faith still applies because the Act does not expressly forbid it.
- Upon dissolution, the partners disagree on how to allocate profits earned after the dissolution but before final settlement; the common law rules on accounting apply here.
- A partner claims a share of assets based on an equitable interest that the Act does not specifically address, relying on pre-existing equity rules.
- A third party dealing with the firm argues that the common law rules on apparent authority still bind the firm, but the Act's express provisions on binding the firm (s. 5) may override if inconsistent.
What this section does not say
- This section does not govern the rights of persons dealing with a firm where the Act provides a specific rule, such as sections 36–38 on apparent members and continuing authority.
- It does not apply to limited liability partnerships, which are governed by separate legislation.
- It does not create new rules of equity or common law; it only preserves existing ones.
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This page reproduces the text of PA 1890 s. 46 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.