This appeal addresses whether an incoming partner is personally liable for interest that accrues on a partnership

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This appeal addresses whether an incoming partner is personally liable for interest that accrues on a partnership debt that arose before the incoming partner’s admission. Under section 17 of New Jersey’s Uniform Partnership Law, [citation] (the Act), an incoming partner is liable for preexisting debt only to the extent of partnership property; the incoming partner is not personally liable for preexisting debt. The parties to this appeal differ over whether the interest on a preexisting debt that accrues after the incoming partner’s admission is new debt or part of the preexisting debt.

   In December 1986, Paula Hertzberg, Elliot Leibowitz, and Joel Leibowitz formed, under the Act, a general partnership, LongView Estates (LongView), to acquire from plaintiff Conklin Farm (Conklin) approximately 100 acres of land in the Township of Montville. Paula Hertzberg owned forty percent of LongView; Elliot and Joel Leibowitz owned thirty percent each. They intended to build a residential condominium complex on the property.

   On the same day that Paula Hertzberg, Elliot Leibowitz, and Joel Leibowitz formed LongView, LongView executed a promissory note in favor of Conklin for $9 million. The three LongView partners signed the note as partners, and also guaranteed the note personally. The note represented a portion of the purchase price for the land, and was secured by a mortgage on the land. The note provided for monthly payments of interest only—to accrue at eight and a quarter percent annually for the first year and nine percent thereafter—with the principal and any unpaid interest due on January 15, 1992. * * * The final payment on January 15, 1992, was to include any unpaid interest and the principal amount of $9 million. * * *

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   On March 15, 1990, Joel Leibowitz assigned his thirty percent interest in LongView to his wife, defendant Doris Leibowitz, who ‘‘agreed to be bound by all the terms and conditions of the Partnership Agreement dated December 22, 1986.’’ Seventeen months later, on August 30, 1991, Doris assigned the interest back to her husband. During those seventeen months, the entire principal of the Conklin note of $9 million was outstanding, and interest accrued at an annual rate of nine percent.

   LongView’s condominium project failed, and LongView defaulted on * * * the Conklin note. * * * In March 1991, LongView filed a petition for bankruptcy under Chapter 11 of the Bankruptcy Code. * * * Eventually, Paula Hertzberg, Elliot Leibowitz, and Joel Leibowitz filed for personal bankruptcy protection, and all three were discharged of any personal liability on the Conklin [note].

II

   Conklin looked to Doris Leibowitz for payment of thirty percent of the interest that accrued on the Conklin note over the seventeen months during which she had held her husband’s interest. Conklin sued her in November 1991, claiming that she was personally liable for $547,000: thirty percent of the interest that accrued during the seventeen months, plus interest and costs. [Court’s footnote: As the opinion below noted, ‘‘It is unclear from this record why plaintiff sought only thirty percent of the interest from defendant.’’ [Citation.] If the interest at issue is indeed new debt, Doris Leibowitz is personally liable for 100% of it under [the Partnership Act]].

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   * * * [T]he sole issue became whether Doris Leibowitz, as an incoming partner, was personally liable for the interest that had accrued on the preexisting debt while she had been a partner. The trial court held that the interest was part of the preexisting debt, not new debt. The trial court found that [section 17 of New Jersey’s Uniform Partnership Law] therefore limited Doris Leibowitz’s liability to her interest in partnership property, which, of course, was by then worthless. Holding that Doris Leibowitz was thus not personally liable for the interest, the court granted her motion for summary judgment.

   Conklin filed a Notice of Appeal. * * * The Appellate Division reversed. [Citation.] Ruling that the interest on preexisting debt is new debt, the Appellate Division held that Doris Leibowitz was personally liable for the interest that accrued on the note while she was a partner of LongView.

   We granted Doris Leibowitz’s petition for certification, [citation], and now reverse.

III

   We find that the plain language of section 17 of New Jersey’s Uniform Partnership Law and its legislative history compel the conclusion that Doris Leibowitz, as an incoming partner, is liable for debt to Conklin only to the extent of her interest in partnership assets. Under [section 15(b) of New Jersey’s Uniform Partnership Law] each partner is personally liable for the debts and obligations of a partnership. [Section 17 of New Jersey’s Uniform Partnership Law] defines the liability of new partners entering an existing partnership. That statute provides:

A person admitted as a partner into an existing partnership is liable for all the obligations of the partnership arising before his admission as though he had been a partner when such obligations were incurred, except that this liability shall be satisfied only out of partnership property. (Emphasis added).

   Under this statute, although the original partners are personally liable for preexisting debt, the incoming partner’s liability for preexisting debt is limited to partnership property.

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   Thus, section 17 of the Uniform Partnership Act * * * made incoming partners personally liable for preexisting debts, but only to the extent of their investment in the partnership. * * *

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IV

   The Conklin note was executed by the partnership prior to Doris Leibowitz’s having any interest in LongView. She did not sign or guarantee payment of that note. Thus, the issue appears resolved by the clear language of [section 17]: Because the note was a preexisting debt, and because Doris Leibowitz was an incoming partner, she is not personally liable for the debt. The parties agree that the principal of the note was preexisting debt. However, while Doris Leibowitz argues that the interest that accrued while she was a partner was part of that preexisting debt, Conklin argues that it was new debt that arose each month as it became due. Thus, according to Conklin, Doris Leibowitz is personally liable for the interest that accrued while she was a partner. We disagree.

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 V

   Conklin argues that just as a rent obligation arises for current use of property, an interest obligation arises for current use of principal. The Appellate Division described the analogy as a ‘‘sound approach,’’ and agreed that ‘‘interest is current rent for money and also should be treated as new debt.’’ [Citation.] We disagree, and we find the rent analogy faulty.

   Contractual interest is created by the contract, and is therefore inseparable from the contractual debt. In [citation], we described contractual interest as ‘‘an integral part of the debt itself.’’ Indeed, contractual interest does not exist absent provision for it in the debt-creating instrument. * * * The interest obligation cannot be a separate debt from the principal obligation because, independent of the contract establishing the principal obligation, there is no obligation to pay interest.

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   Because there is no obligation to pay interest independent of the promissory note, Conklin’s rent analogy fails. Since the obligation to pay interest arises only as a result of the original loan instrument, interest, unlike rent, cannot be ‘‘new’’ debt. * * *

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   Moreover, there is no prejudice to Conklin in the fact that it may look to only the original partners for payment of the preexisting debt and interest. In executing the note, Conklin considered the personal credit of only Paula Hertzberg, Elliot Leibowitz, and Joel Leibowitz, all of whom guaranteed the loan. Conklin did not rely on the personal credit of Doris Leibowitz. When lenders loan money, they rely on the financial statements of the general partners, and not of some future, unknown general partner. * * *

   We find that contractual interest is not new debt. * * * Accordingly, LongView’s obligation to pay interest arose when it executed the Conklin note, before Doris Leibowitz became a partner. Hence, the interest on the note was preexisting debt under [section 17], and Doris Leibowitz is not personally liable for its payment.

   The judgment of the Appellate Division is reversed. 

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Smith and Roberson Business Law

ISBN: 978-0538473637

15th Edition

Authors: Richard A. Mann, Barry S. Roberts

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