Учебный год 22-23 / W_W_BUCKLAND_AND_ARNOLD_D_McNAIR_ROMAN_LA

298 PARTICULAR CONTRACTS

side to put an end to the arrangement at the end of any year.1 There was no such conception as tenancy at sufferance; a tenant who remained in possession without any consent, express or tacit, of the lessor was simply a person who had broken his contract, against whom an action would lie.

In comparing the rules of the two systems governing the letting of land and houses the privileged position of the English landlord seems to stand out. The tenant takes the land 'for better for worse'; if harvests are bad, he must nevertheless pay the stipulated rent, though in practice the good landlord habitually grants abatements. The English rule is logical, for it seems probable that in our early terms of years the element of speculation or investment was prominent.2 The beneficial lease was granted in return for a premium or as a means of securing a loan, and in the case of 'husbandry leases' (which are not the earliest type) it is not unreasonable to suppose that the tenant originates in the servant or bailiff who, instead of accounting annually to his master, agrees to pay a firma and take the risk.3 Similarly the tenant of a house takes it for what it may become, though recent legislation to some extent redresses the balance.4

The contract oilocatio operisfaciendi^ letting out a contract, offers few points of contrast, for its methods have a very modern look: elaborate contract notes seem to have been usual, with, e.g., provision for a penalty if the work is not completed by a fixed date,5 provisions probably as difficult to make effective as they are with us, or for a power to determine the contract and transfer it to someone

1 Other texts, D. 19. 2. 14 and C. 4. 65. 16, seem to make the new term tacitly created identical in all respects as between the parties with the old one, including the period, but it may be that the words kex integro*,

else if it was not done within the time.1 It was also usual to provide that the work must be subject to approval, which might be by the employer or his nominee, and, if the job was extensive, to agree that approval, involving liability for the cost and transfer of risk to the employer, should be given by stages as the work progressed.2 Subcontracting was also usual.3

Hire of services, locatio operarum, as opposed to locatio operis faciendi, is simply hiring a man's services for a wage or stipend. It had a curious arbitrary limit. Not every service could be the subject of this contract but only those

'quae locari solent\ i.e. munera sordida as opposed to liberal arts. We are not explicitly told what were munera sordida, but the constantly recurring cases are those of handicraft and what may be called menial service. The line is not drawn exactly where we might draw it: we learn for instance that the painting of pictures is not a liberal art.4 Practitioners of liberal arts were employed by mandatum^ which was formally gratuitous but, at least in the Empire, admitted of honoraria^ not recoverable under the contract of mandate itself, but by a special process. For some higher forms of service, such as those of professors of philosophy or law, no fees were recoverable at all, the position being much the same as that of barristers under our law. It is clear, however, that very considerable fees were paid, and it is believed that the services of barristers are not in fact wholly gratuitous.

The texts really tell us very little about locatio operarum. This is due to the constitution of Roman society. At the time when the jurists were writing, most work of this kind was done by slaves, and between a man and his slaves there could be no question of legally enforceable rights and liabilities. It is probable that this was no longer true under Justinian, but the Digest is made up of texts from the

classical age, and so far as we can gather from the Code there was little legislation on the matter in later times: it was hardly a matter for legislation.

To the English lawyer, the idea that services are a thing that can be hired is unfamiliar. What we hire is the servant. At the now obsolete hiring fairs the hind or maid let himself, or herself, rather than his or her services. We find no difficulty in thinking of a man as hiring himself out. And in Rome if one hired another man's slave or beasts, such as a team of mules, what was hired was not services, but a thing—one hired the slaves or mules. But language of that sort was not admissible where a freeman was concerned. He could not be treated as the subject-matter of the contract: he let out not himself but his services.1

6. PARTNERSHIP

Societas corresponds roughly to our partnership but differs from it in many important ways. Partnership is a commercial contract. Sir Frederick Pollock2 defines it as: 'the relation which subsists between persons who have agreed to share the profits of a business carried on by all or any of them. . . \ But in Rome it had nothing necessarily commercial about it; any sort of continued joint exploitation, whether commercial or not, was a societas. If you and I rent a field for our common use as a lawn-tennis court, we

are sociiy and our relation is societas^ as much as if we had bought it to lay out in building sites, and we are thus subject to obligations which differ from those which result from mere common ownership without use. Indeed it may be that in classical law any common ownership voluntarily created amounted to a societas^

1 The contrast appears in such texts as D. 19. 2.19.9; h.t. 26;h.t. 30. 2; h.t. 38; h.t. 43; h.t. 48, etc. For the extremely wide range of locatio conductWy see p. 268, ante,

2 Law of Partnership, 15 th ed. p. 6.

3 For texts and literature see Buckland, Text-book, p. 507.

Another great difference results from the fact that it was merely a contract between the partners. Moreover, Roman law had no theory of agency, by which a partner could automatically have authority to bind his partners. If a socius made a contract on firm business it was, so far as the third party was concerned, a contract with the partner who made it, and there would be no action against other members of the firm. The socii would have claims against each other for account, but the third party had nothing to do with this. To some extent, indeed, this is more apparent than real. If, as would often happen, the socii or some of them had authorised one of the socii to contract, e.g. had put him in charge of the business carried on, those who had given the authority would be liable on his contracts (though not entitled under them, unless made procuratores in rent suarn) by the actio institoria or quasi institoria^ on principles already mentioned.1 But this would be a result not of the societas but of the mandate they had given. On the one hand it would not necessarily affect all the socii but only those who had given the mandate; on the other hand these would be equally liable if there was no societas in the matter at all. One result of this fundamental difference is that while our Partnership Act of 18 90 and Sir Frederick Pollock's treatise on the subject are mainly concerned with the relations between the *firm'and third parties, the title Pro Socio2 in the Digest deals almost entirely with the relations between the socii inter se.l

Societas was a consideration contract in the plain sense that it required a quidpro quo. Every socius must contribute something, capital or service. In general there was no such thing as the limited partnership* which seems to exist in most systems and has lately been introduced into

3 There is in fact no text in the whole, fairly long, title, Pro socio (D. 17.2), which clearly deals with remedies of third parties, though some of them have been made to do so by modern pandectists. See Monro, Pro socio, Appendix 2.

3O2 PARTICULAR CONTRACTS

our own.1 We do learn, however, that there might be an agreement that if the firm's transactions resulted in a loss on the whole, a particular partner should not be liable to contribute. We are told that a partner's qualities might be so valuable as to be worth having even on these terms.2 Moreover, since the relation between socii was purely one of contract, there was nothing to prevent an agreement limiting the amount of any partner's liabilities to the others, though there seem to be few traces of such an agreement. It is true that there are traces of contributories to firms farming the taxes or public mines whose liability was limited to their partes, i.e. sums they had agreed to contribute,3 or so it seems; but these were very early obsolete and very little is known of them. It is true also that it was usual to contribute agreed quanta to the capital of the concern, and that the shares of profit and loss were not necessarily the same and were arranged with elaborate rules in relation, normally, to these contributions; but this, though it would determine the proportion in which loss would fall on the individual socii, had nothing to do with limitation of liability. If a socius made, on firm business and with no negligence or breach of duty making him liable to the other socii, a contract which in the result absolutely ruined him, he would be the only person directly liable under the contract, but all the socii would be liable to him to contribute to the damages he had to pay, in proportion to their shares, but with no limit as to the actual amount. As there was in Roman law no system of bankruptcy putting an end to liabilities, so that a man owed his debts till he had paid them, the rules gave a result not unlike our own rule, which makes each partner liable to third parties for his fellow-partners' partnership debts, though the result was reached in a very roundabout way.

1Limited Partnership Act, 1907. It seems that little use is made of it.

2D. 17. 2. 29. 1.

3See Deloume, Les manieurs dyargent & Rome, 2nd ed. pp. 119 sqq.

3Q4 PARTICULAR CONTRACTS

or two cases in which special rules were applied, in details,

e.g. societas vectigalis for State contracts and societates argentariorum, but the really important distinction is between ordinary partnership and societas universorum bonorum. This is an odd institution, to which our law affords no exact parallel. It is true that, apart from the rare limited partnership, a man may find his whole property swallowed up by

the liabilities of a partnership. That is a different matter. The Roman societas universorum bonorum was communism on a small scale. In its extreme form, which seems to have been rare, all present possessions and later acquisitions as they came in were thrown ihto the common stock. It seems

to be an imitation or extension of the ancient system of consortium under which, upon the death of the paterfamilias, his children, instead of dividing up the inheritance, continued to enjoy it in common.1 How it worked is not fully known. There must have been distributions of income, for the texts contemplate property in the control of individual socii. But it cannot have been important in practice.

It had, however, certain characteristics which ultimately extended to all societates.2 It was said to involve a czrt&mfraternitas which had its effect on the rules. Thus on the creation of a societas it was possible to agree that the shares might be fixed by one of the socii, subject to correction if unfair, which is much as if one of the parties to a sale were to have the right tofixthe price, a thing which was inadmissible.3 And, as litigation and fraternity do not go well together, any action on the societas (actio pro socio) normally ended the concern.4 And just as any heres in a consortium could in historical times at any moment claim

1 Light has been thrown on it by the recently discovered fragments of Gaius (see De Zulueta, Journal of Roman Studies, 1934, p. 168; 1935, p. 19), which show that it could be created artificially between persons not actually brothers and sisters, a system which forms a connecting link with the societas universorum bonorum of the texts.

2 There is dispute as to the time at which these transfers happened. 3 D. 17. 2. 6; 18. 1. 35. 1. ^ D. 17. 2. 65. pr.

PARTNERSHIP

his share and put an end to the consortium^ so in all societas there was a right of renunciation at any time, even though

a term had been agreed upon. If this was done intempestive, at a time which made it unfair or disastrous to the concern, there would be an actio fro socio, but the societas was at an end,1 a rule expressed in the maxim that one who so renounces 'liberat socios a se, sed non se a sociis'.2 In our law there is a similar right of withdrawal at any moment, if there is no term, but no such right, apart from agreement,

if there is such a term, 3 or if the partnership is for a single undertaking. The Roman socius can retire at any moment, though he may incur liabilities by so doing, but he ends the societas. In our law this right is qualified.4 In both systems the death of a partner normally ends the partnership for all the members, but there is one fundamental difference; in our law it is possible to agree that this shall not be so and even that a retiring or deceased partner shall be replaced in the partnership by someone else, e.g. his son. But in Roman law this was not possible. What ended the societas for one ended it necessarily for all, and it was not possible to agree ab initio that, e.g., the heres of the deceased socius should replace him.5 It is said in Inst. 3. 25. 5 that the death of a socius need not end the societas if a contrary agreement had been made in coeunda societate.6 This proviso is probably due to Justinian, but in fact it means less than appears. It means only that though the original societas is ended by the death, the business does not necessarily stop: it may well go on, and usually will, but it will be a new societas among the survivors.

Both systems have the rule that if a partner agrees with someone not a partner to share his interest with him, this creates a subpartnership, but does not make the person so introduced a member of the principal partnership: * socii