!!Экзамен зачет 2023 год / The Law of Obligations

CHAPTER 15

Societas

I.ROMAN LAW

1.The nature of societas

The fourth of the consensual contracts was societas (partnership). Unlike sale or hire, it is not a transaction in which the parties' performances are reciprocal. A socius does not give or do anything in order to receive a counterperformance from his fellow socii. Societas is thus not based, primarily, on an antagonism of interests; its essence is the pooling of resources (money, property, expertise or labour, or a combination of them) for a common purpose. Socii, in the words of Daube, are not bent on getting the utmost out of each other; they are, in the first place, "friends", pursuing their common interests against third parties.1

2.Evolution of the contract of societas

(a)Erctum поп citum

In Institutions III, 154, Gaius refers to this type of consensual societas ("haec quidem societas de qua loquimur, id est quae nudo consensu contrahitur") as an institution iuris gentium, that is, not peculiar to Roman citizens. The implication appears to be that Roman law (at least at some stage of its development) knew a non-consensual societas which was not iuris gentium. In fact, one had always suspected as much. In February 1933, however, a parchment was discovered in an antiquarian bookshop in Cairo which confirmed this hypothesis.2 It turned out to contain, inter alia, an entirely new fragment of Gaius' Institutes, which had not been preserved in the Veronese palimpsest3 and which reads as follows:

"Est autem aliud genus societatis proprium civium Romanorum . olim enim, mortuo patre familias, inter suos heredes quaedam erat legitima simul et naturalis societas, quae appellabatur ercto non cito, id est dominio non diviso. . . . Alii quoque, qui

1David Daube, "Societas as Consensual Contract", (1938) 6 Cambridge LJ 391. Cf. generally Jacques Heenen, "Business and Private Organisations", in: International Encyclo pedia of Comparative Law, vol. XIII, 1, nn. 15 sqq.; Joseph Story, Commentaries on the Law of Partnership (5th ed., 1859), §§ 1 sqq., 15 sqq.

2Cf. e.g. Ernst Levy, "Neue Bruchstucke aus den Institutionen des Gaius", (1934) 54 ZSS 258 sqq.

3Why? Has this passage been omitted intentionally from the Veronese manuscript (which is from the late 5th century) because it dealt with an entirely outdated and obsolete institution, the discussion of which appeared to be unnecessary for elementary instruction purposes? Cf. e.g. Levy, (1934) 54 ZSS 270 sqq., but also Francis de Zulueta, "The New Fragments of Gaius (PSI. 1182)", (1934) 24 JRS 182.

451

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volebant candcm habere societatem, potcrant id conscqui apud praetorcm certa legis actione."4

This text draws our attention to an institution of pre-classical ("olim") law which must be seen as the earliest form and historical basis of partnership arrangements in Roman law. It refers to a specific aspect of the once all-important law of the family. On the death of the paterfamilias, the familia broke up into as many new familiae as there were sui heredes. However, in the old days, all these families remained united in a community of co-heirs (or, as Gaius puts it: brothers), a consortium which was called erctum non citum5 and through which the old familia6 continued to exist, in both its legal and its sacral substance. This consortium led to a complete community of property and was characterized by the fact that the individual co-heirs did not have a specific share in the inheritance: all rights vested in the community of co-heirs.

(b) Pre-classical consortium and classical societas

It was this type of consortium which parties who wished to pool their assets were then allowed to create artificially,7 first by means of "certa legis actio", an ancient and formal type of procedure.8 "fA]d exemplum fratrum societatem coierint", is how Gaius describes what these partners did:9 they contracted a partnership on the model of the (natural) brothers of an undivided familia. In the course of time, however, the legis actio procedure proved to be too cumbrous, and eventually, therefore, the praetor granted an action on the basis of a purely consensual societas. The parties had pooled their property10 in order to pursue a common purpose and good faith demanded that such an arrangement be honoured, no matter whether it was based on some outmoded formal act or not. It was still societas omnium bonorum, though, a partnership involving all the partners' assets of whatever source. Throughout classical and post-classical law it remained one of the basic types of partnership, and it retained certain characteristics of the old consortium.11 It is, however, unlikely that this type of

4Cf. today Gai. Ill, 154 a, b. On this text, see particularly Franz Wieacker, Societas, Hausgemeinschaft und Erwerbsgesellschaft (1936), pp. 126 sqq.; Mario Bretone, " 'Consortium'

с'communio'", (1960) 6 Labeo 168 sqq.

5On which see, for instance, Kaser. RPr 1, pp. 99 sqq.; idem, "Neue Literatur zur 'societas'", (1975) 41 SDH/281 sqq.; Honsell/Mayer-Maly/Selb, p. 331; Voci, DER, vol. I, pp. 59 sqq.; Vincenzo Arangio-Ruiz, La societa in diritto romana (1950), pp. 3 sqq.; Bretone, (1960) 6 Labeo 177 sqq., Herman van den Brink, lus Fasque (1968), pp. 262 sqq.

6Kaser, RPr I, pp. 50 sqq.; Voci, DER, vol. I, pp. 23 sqq.

7Cf., above all, Wieacker, Societas, pp. 126 sqq.

H Comparable, probably, to an in iure cessio; Kaser, (1975) 41 SDHI 284 sq. 9 Gai. Ш, 154 b.

10 On how this was done cf. infra, pp. 465 sq.

1 Wieacker, Societas, pp. 131 sqq., 153 sqq.; Kaser, RPr I, p. 573. Contra: Antonio Guarino, Societas consensu contracta (1972), pp. 13 sqq. According to him, the classical consensual societas has nothing to do, historically, with the pre-classical consortium. Only

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transaction was widely practised in classical times.12 Societas omnium bonorum finds its origin in family law and succession, not in mercantile practice. It may be suitable between close friends and relatives, or between farmers wishing to engage in a communal agricultural enterprise.13 But already in the second century B.C. Rome was not the closely-knit agricultural community of old any longer. Trade and commerce flourished, and with it came an increasing desire to form profit-oriented business partnerships. Businessmen who wish jointly to run a bank,14 to embark on the trading of slaves or on the building of roads do not normally want to pool all their (private) assets. They want to confine their association with each other to a specific type of business or sometimes even to one particular transaction. Societas omnium bonorum therefore being inconvenient for their purposes, the praetor (probably initially the praetor peregrinus) during the later Republic began to protect such informal unions created for the purpose of a joint commercial enterprise.15 In the course of time the old civilian societas omnium bonorum and the more modern business partnership amalgamated and formed the basis for the classical consensual societas.16 The contract of societas in classical law thus provided a general framework for all types of partnership arrangements, whether they be omnium bonorum, negotiationis alicuius or rei unius.17 Apart

pwf-classical law created a societas omnium bonorum that fulfilled a function comparable to that of the old consortium. For a critical discussion of Guarino's views, see Kaser, (1975) 41 SDH/278 sqq.; cf. also Kascr, RPr II, pp. 410. Originally, societas does not seem to have been able to be concluded sub condicione, for the question was disputed among the classical lawyers (C. 4, 36, 6 (Just.); Paul. D. 17, 2, 1 pr.; itp.). According to Wieacker, Societas, pp. 137 sq., this is one of the characteristics inherited by the consensual societas from the old consortium. The formal act which created the consortium of old entailed a change of status and could not therefore be conditional. Cf. also Arangio-Ruiz, op. cit., note 5, p. 121 sqq.; Kaser, RPr I, p. 573. But see now Kaser (1975) 41 SDHI 305; Guarino, Societas, p. 13. For yet another explanation cf. Watson, Obligations, pp. 130 sqq.

12Alan Watson, "Consensual societas between Romans and the Introduction of formulae", (1962) 9 RIDA 431 sqq.; cf. also idem, Evolution, p. 21.

13Cf. e.g. Wolfgang Kunkel, "Ein unbeachtetes Zeugnis iiber das romische consortium", in: (1954) 4 Annales Faculte de Droit d'Istanbul 56 sqq.; Watson, loc. cit.

1On argentarii socii cf, most recently, Alfons Burge, "Fiktion und Wirklichkeit: Soziale und Strukturen des romischen Bankwesens", (1987) 104 ZSS 519 sqq.

15Cf. Arangio-Ruiz, op. cit., note 5, pp. 22 sqq.; Ulnch von Liibtow, "Catos leges venditioni et locationi dictae", in: Symbolae Raphael! Taubenschlag, vol. HI (1957), pp. 286 sqq.; Kaser, RPr I, pp. 573 sq.; Guarino, op. cit., note 11, passim.

Л Wieacker, (1952) 69 ZSS 491 sqq. Previously {Societas, pp. 131 sqq.) Wieacker had emphasized exclusively the root of societas in consortium. For the opposite extreme (societas was since old a profit-oriented business organization—societa di industria—and has no historical connection with the consortium at all), see Guarino, Societas. But cf. Kaser, (1975) 41 SDHI 278 sqq.

17Ulp. D. 17, 2, 5 pr.; cf. also Gai. Ill, 148; Inst. Ill, 25 pr. An example of alicuius negotiationis is to be found in Ulp. D. 17, 2, 52, 4 ("|q]uidam sagariam negotiationem coierunt") (for further details and examples — venalicii, argentarii, danistae, etc.— see Arangio-Ruiz, op. cit., note 5, pp. 141 sqq.; on societatcs argentariae cf. Manuel J. Garcia Garrido, "La sociedad de los banqueros ('Societas argentaria')", in: Studi in onore di Arnaldo Biscardi, vol. HI (1982), pp. 377 sqq.); of unius rei is to be found in Ulp. D. 17, 2, 52, 13 ("Si

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from these, there was a societas omnium bonorum quae ex quaestu veniunt which involved a pooling of all assets deriving from business activity (as opposed to, for instance, gifts or legacies). This seems to have become a popular type of societas for, according to Ulpian,18 its conclusion was to be presumed in case of doubt, i.e. if the partners had simply entered into a societas without specifying which type it was to be.

3. Basic features of classical societas

The classical societas was based on the formless consent of the socii19 which was apparent, usually, from their factual co-operation. Like the other consensual contracts, societas was therefore firmly rooted in the precepts of good faith. In addition, there were certain overtones of a distinctly fraternal nature, accountable, historically, to the old consortium as an imitated community of natural brothers.20 Unlike emptio venditio, locatio conductio or mandatum, societas did not give rise to actiones directae and contrariae. The praetorian edict contained only one formula for the claims of socii against each other. This was the procedural reflection of the fact that the rights and duties of the members of a partnership towards each other are identical; they cooperate on the basis of a common purpose21 rather than occupy

vicini semipedes inter se contulerunt, ut ibi craticium parietem inter se aedificarent ad onera utriusque sustinenda"), and see Wieacker, (1952) 69 ZSS 501. For the later Republic, see Watson, Obligations, pp. 134 sqq.

18 D. 17, 2, 7. On this type of societas cf. also Paul and Ulpian in D. 17, 2, 8-13. Ferdinando Bona, "Contribute alia storia della 'societas universorum quae ex quaestu veniunt' in diritto romano", in: Studi in onore di Giuseppe Grosso, vol. I (1968), pp. 383 sqq., 395 sqq., argues that only Justinian made this the prototype of societas. But see e. g. Guarino, op. cit., note 11, pp. 26 sqq.

19 Cf. Gai. Ill, 135, 154; cf. further, particularly, Daube, (1938) 6 Cambridge LJ 381 sqq.; Arangio-Ruiz, op. cit., note 5, pp. 63 sqq.; Watson, Obligations, pp. 128 sqq.; Kaser, (1975) 41 SDHI 299 sq.; but see also Wieacker, Societas, pp. 72 sqq. Societas could be a bilateral or even a plurilateral contract, depending on whether there were two or more socii; cf. e.g. Arangio-Ruiz, op. cit., note 5, pp. 70 sqq. According to Guarino, op. cit., note 11, pp. 38 sqq., 82 sqq. the consensual societas typically comprised only two socii, and it was essentially the structure of such a societa "dualistica" which was reflected in classical law. For a critical discussion of this theory, see Kaser, (1975) 41 SDHI 321 sqq.

Cf. e.g. Ulp. D. 17, 2, 63 pr.: "Verum est quod Sabino videtur, etiamsi non universorum bonorum socii sunt, sed unius rei, attamen in id quod facere possunt quodve dolo malo fecerint quo minus possint, condemnari oportere. hoc enim summam rationem habet, cum societas ius quodammodo fraternitatis in se habeat." This is the (later, i.e. since the 16th century) so-called beneficium competentiae: condemnation of the debtor only in id quod facere potest. Cf. further Ulp. D. 42, 1, 16; Wieacker, Societas, pp. 165 sq.; Watson, Obligations, p. 144; Wicslaw Litewski, "Das 'beneficium competentiae' im romischen Recht", in: Studi in onore di Edoardo Volterra, vol. IV (1971), pp. 546 sqq.; Joachim Gildemeister,

Das beneficium competentiae im ktassischen romischen Recht (1986), pp. 27 sqq. and passim. Cf. also Holdsworth, vol. VIII, p. 195.

21 Of course, this common purpose was not to be illegal, immoral or impossible, otherwise the partnership was void; cf. Paul. D. 17, 2, 3, 3; Ulp. D. 17, 2, 57 and Thomas, TRL, p. 302, who draws attention to the interesting English case of Everett v. Williams of 1725; cf. (1893) 9 LQR 196 sqq. ("Truth is stranger than fiction. The story of a highwayman filing a Bill in Equity for an account against his partner . . . is correct after all").

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distinct and separate roles (as a vendor and purchaser, letter and hirer, mandator and mandatarius) on the respective sides of their obligational relationship. The model form of the actio pro socio, of course, contained the ex bona fide clause and did not distinguish between the different types of societas.22 Societas, furthermore, was not a corporate body, a legal person in its own right. It was a contract creating rights and duties merely between the socii themselves. Nobody could therefore act for "the societas". Nor could a socius represent his partners; if one partner bought something on behalf of all the socii, only he was entitled or obliged under such an emptio venditio, not the community of the partners as a whole.23

4.Termination of the societas

(a)Renuntiatio, tnors socii, insolvency

These are the basic features of societas in classical Roman law, and most of the details set out on the following pages follow naturally from them. The operation of a partnership is usually designed to extend over some time, at least, as long as it is not merely unius rei; and because societas was based on the consent of the socii, it follows that their consensus had to be a continuing one. "Manet autem societas eo usque donee in eodem sensu perseverant [socii]."24 The societas could exist only as long as the partners, in the pursuit of their common purpose, kept to their agreement. As a consequence, the partnership was dissolved if one of the partners renounced it.25 It was not possible for him simply to withdraw and to leave the societas between the remaining partners intact.26 His renuntiatio invariably terminated the contract as a whole, since it was now no longer carried by the original consensus.27 If the remaining parties decided to carry on as partners,

22Cf. Lend, EP, p. 297; Arangm-Ruiz, op. cit., note 5, p. 30; Kaser, (1975)41 SDH/290 sqq. ("Quod As A5 cum № № societ atem omnium bonorum coiit, . . ."). Differently (without the words "omnium bonorum") Guarino, op. cit., note 11, p. 11.

23The classical societas was, in modern terminology, a mere undisclosed association ("Innengeselhchaft"); it did not have any effects as far as third parties were concerned. For details, see, for example, Arangio-Ruiz, op. cit., note 5, pp. 78 sqq.

24Gai. Ill, 151. Cf. further Inst. Ill, 25, 4; Wieacker, Societas, pp. 285 sqq.

25Also, of course, if the partners mutually agreed to end their association (cf. Knutel, Contrarius consensus, pp. 124 sqq.), or if the period agreed for the continuance of the partnership expired.

26Of a different opinion is Guarino, op. cit., note 11, pp. 56 sqq., 90 sqq., according to whom only a societas comprising two socii was dissolved by renunciation. A "societa pluralistica", on the other hand, continued to exist if only one partner decided to withdraw. Guarino draws the same distinction in cases of death, capitis deminutio and insolvency of one of the partners; cf. Societas, passim and idem, "Solutio societatis", (1968) 14 Labeo 139

sqq. Contra: Wieslaw Litewski, "Remarques sur la dissolution de la societe en droit romain", (1972) 50 RH 70 sqq.; Kaser (1975) 41 SDH/325 sqq.; cf. alsoJ.A.C. Thomas, "Solutio societatis ex actione and dissensus sociorum", (1974) 48 Tulane LR 1103 sqq.

27Gai. Ill, 151; Mod. D. 17, 2, 4; Inst. Ill, 25, 4. For further details Paul. D. 17, 2, 65, 3-6; I.C. van Oven, " 'Societas in tempus coita' ", in: Studi in onore di Vincenzo Arangio-Ruiz, vol. II (1953), pp. 453 sqq.; Ferdinando Bona, Studi sulla societa consensuale in diritto romano

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456 The Law of Obligations

this was held to be a new partnership.28 Similarly, the death of one of the partners terminated the partnership: morte socii solvitur societas. Reason: "qui societatem contrahit certam personam sibi eligit."29 We are reminded of the same rule and the same rationale in the case of mandatum:30 both socius and mandator place their confidence in a particular person; if that person dies, the essential basis sustaining the contractual relationship falls away.31 For the same reason the partners were not able to provide that the future heir of one of them shouldjoin the partnership.32 The societas found its basis in the trust and faith existing between two or more specific individuals, and it was totally impossible to predict whether this type of relationship would extend to a party that was as yet unknown. Capitis deminutio being, civili ratione, equivalent to death, brought about the end of the partnership, too.33 So did the insolvency of one of the partners.34 Finally, and perhaps most interestingly, the bringing of the actio pro socio

(1973), pp. 117 sqq. The power to renounce at any time could not be excluded by way of agreement between the socii: Pomp./Ulp. D. 17, 2, 14; Paul. D. 17, 2, 17, 2; Wieslaw Litewski, "Lcs effets juridiques du pactum ne societate abcatur" (1978) 25 RIDA 279 sqq.

2H Cf. Gai. Ill, 153; but sec also Ulp. D. 17, 2, 58, 2; Arangio-Ruiz, op. cit., note 5, pp. 166 sqq.

29Gai. Ill, 152. Cf. further e.g. Paul. D. 17, 2, 65, 9 sq.; Arangio-Ruiz, op. cit., note 5, pp. 156 sqq. But see Watson, Obligations, pp. 131 sqq. "Qui societatem contrahit certam personam sibi elegit" is also the reason for the rule socii mei socius meus socius non est (Ulp. D. 17, 2, 20; Ulp. D. 50, 17, 47. 1). If, for instance, three socii run a taberna, and one of the socii accepts a fourth person as a socius in order to let him work in the shop, the latter does not become partner of the original societas. No. 1 and No. 4 form a subpartnership, of which Nos. 2 and 3, since they have not agreed to it, do not form part (Ulp. D. 17, 2, 19). Was No. 1 liable, towards Nos. 2 and 3, for the actions ot No. 4? According to Ulp. D. 17, 2, 21, he has to sue No. 4 and then to bring what he receives by way of damages into the societas with Nos. 2 and 3. What if No. 4 (the sub-socius) is not able to pay damages? "Et puto", says Ulpian, "omnimodo eum teneri eius nomine, quern ipse solus admisit. quia difficile est negarc culpa ipsius admissum." Does that mean that No. 1 is liable for culpa in eiigendo? This is what the text has usually been understood to mean (cf. e.g. Eticnne Laffely,

Responsabilitedu "socius" et concours (factions dans la sodete classique (1979), pp. 36 sqq., 44 s q . ) .

Consequently it has often been regarded as spurious. It is more likely, however, that Ulpian held No. 1 liable for breach of contract. He was not allowed, under the partnership agreement, to hand over the management of the taberna to a subpartner; the latter has therefore been able to cause the damages only as a consequence of No. 1 's culpa. Cf., in this sense, Rolf Kniitel, "Die Haftung fur Hilfspcrsonen im rdmischen Recht", (1983) 100 ZSS 423 sqq.

30On the "coincidence" in this respect of the contract of partnership with that of mandate cf. Story, op. cit., note 1, § 270.

31Cf. also Story, op. cit., note 1, §§ 317 sq.; "[Partnership) is a mutual and reciprocal engagement of each partner with all the others, that the partnership shall be carried on with joint aid and cooperation of all; and, therefore, the survivors ought not to be held bound to continue the connection without a new consent, when the abilities, skill and character of the deceased partner either were, or at least might have been, a strong inducement to the original formation of the partnership"; Pothier, Тгапё du contrat de socicte, nn. 144 sqq.; Kaser. (1975) 41 SDH/34.

32Ulp. D. 17, 2, 35; Pomp. D. 17, 2, 59 pr.

33Gai. Ill, 153; Arangio-Ruiz, op. cit., note 5, pp. 163 sqq.

34Gai. Ill, 154; Mod. D. 17, 2, 4, 1.

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terminated the societas: " . . . si . . . actio interierit, distrahi videtur societas."35

(b) The bringing of an actio pro socio

Ultimately, of course, it was litis contestatio that extinguished the partnership obligations; but by initiating a lawsuit that necessarily entailed a general settlement of accounts,36 a socius could be taken to have implicitly renounced the partnership: it was as clear a manifestation of his desire no longer to be associated with the other members of the societas as one might wish to get. An actio pro socio manente societate was thus excluded in classical law.37 This reflects the "isolationist" and libertarian character of Roman jurisprudence.38 Of course, societas gave rise to obligations between the socii. But the lawyers were loath to intervene in an existing and functioning unit. Thus, there were no legal rules determining the internal relationship among the partners, and the details of how they set about pursuing their common purpose were left entirely to their mutual good understanding.39 It is the same attitude that prevailed, for instance, with regard to the regulation (or rather: non-regulation) of family affairs.40 As long as the partnership functioned, the intervention of the law was neither necessary nor appropriate. If, on the other hand, there were problems that could no longer be resolved in an amicable manner, the co-operation between the partners had lost its gravitational centre: a type of trust, faith and loyalty that derived from and was reminiscent of the ancient fraternity. Litigation does not represent the pinnacle of good brotherly relations. The spirit of the partnership had broken down. It did not make sense, under these circumstances, to carry on with the empty shell.

5.Freedom of contract and its limitation

(a)The allocation of shares in profits and losses

The fact that societas was based on bona fides did, of course, not mean that the contents of the contract between the socii had to conform to any kind of objective standard of fairness or reasonableness. More particularly, the validity of a societas did not depend on an equivalence

3 5 U l p. D . 17 , 2, 63 , 1 0; c f f ur th e r P a ul . D . 1 7, 2. 6 5 p r . ; U l p. D . 17 , 2 , 52 , 1 4 a n d T homas, (197 4) 48 Tula ne LR 1099 sqq.

36 Cf. infra, p. 460.

however, with societas vectigalium); Arangio-Ruiz, op. cit., note 5, pp. 176 sqq.; Kaser, (1975) 41 SDMI 329 sq.; contra: Thomas, (1974) 48 Ttdane LR 1101 sqq.

Cf. in general Schulz, Principles, pp. 19 sqq., 140 sqq.; more specifically on societas, see Schulz, CRL, p. 553; Franz Wieacker, "Das Gesellschaftsverhaltnis des klassischen Rechts" (1952) 69 ZSS 315 sq. 39 But cf. infra, p. 459.

Cf. C. 8, 38, 2 (Alex.) ("Libcra matnmonia esse antiquitus placuit"). For societas d, Paul. D. 17, 2, 70: "Nulla societatis in aeternum coitio est."

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of contribution and reward. "Quidquid ob earn rem Nm Nm A° A° dare facere oportet ex bona fide": that was determined, in the first place, according to what the parties had specifically agreed upon. For what can be more in accordance with good faith than to give effect to the arrangements of the parties concerned? A Roman paterfamilias may be relied upon to be the best guardian of his own interests. Naturally, if no specific agreement regarding profits and losses had been made, the presumption was that the parties would bear both in equal shares.41 But if shares had been specified, the agreement had to be observed. Thus, for instance, the parties could arrange that one partner should receive two-thirds of the profits and bear one-third of any loss, while the other would bear two-thirds of any loss and get one-third of the profits.42 It was even possible to allocate a share in the profits to a sodus without making him share in the losses at all.43

True: in the days of the Republic, this matter had been very controversial. Quintus Mucius, for instance, had disapproved of these kinds of terms.44 But his disapproval had not been based on the lack of equivalence between contribution and reward. Fairness was not an issue. Such arrangements had rather been regarded as "contra naturam societatis": as incompatible with the nature of partnership as such.45 In this argument, we see again the old erctum non citum lurking behind the scenes of consensual societas.46 This ancient type of consortium was formed by co-heirs. An heir, as Alan Watson has stressed,47 is liable for the debts of the deceased, even if they exceed the assets. Co-heirs were liable in the same proportion as they inherited. They might have been instituted ex partes inaequales; but profit and loss, as far as each of the co-heirs was concerned, corresponded. Servius Sulpicius broke away from this traditional position.48 He obviously did not regard such correspondence as essential for the modern, consensual type of partnership, and left the determination of shares, in both profits and losses, to the parties. If they gave one of them a better deal they might have good reason for doing so: ". . . saepe quorundam ita pretiosa est opera in societate, ut eos iustum sit meliore condicione in societatem admitti."49 The services of one of the parties may be so valuable, in

41Gai. Ill, 150; Ulp. D. 17, 2, 29 pr.

42Cf. Gai. Ill, 149; cf. the example discussed in Inst. Ill, 25, 2.

43Ulp. D. 17, 2, 29, 1.

44Cf. the report of the controversy in Gai. Ill, 149; Inst. Ill, 25, 2.

45Cf. the discussion by Horak, Rationes decidendi, pp. 158 sqq.

46Alan Watson. "The Notion of Equivalence of Contractual Obligation and Classical Roman Partnership", (1981) 97 LQR 279 sqq.

47Evolution, p. 21.

48Gai. Ill, 149; Inst. Ill, 25, 2.

49Inst. III. 25, 2.

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comparison with the contributions of the others,50 that such favourable treatment appears to be fully justified. Whether or not that is so must, however, be left to the discretion of the parties,51 and it is not up to any third party to interfere with their evaluation of the matter.52

(b) The societas leonina

There was, however, one exception to this rule. A societas in which one partner shared only in the loss and not at all in the profit, was inadmissible.53 It is in the fables of Phaedrus that we find the prototype of this so-called "societas leonina":

"Vacca et capelk et patiens ovis iniuria socii fuere cum leone in saltibus.

Hi cum cepissunt cervum vasti corporis, sic est locutus partibus factis leo;

'Ego primam tollo; nominor quia rex meast; secundam, quia sum socius, tribuetis mihi; turn, quia plus valeo, me sequetur tertia; malo adficietur siquis quartam tetigerit.'

Sic totam praedam sola improbitas abstulit."54

These are certainly powerful arguments on the part of the lion, but one must admit that from a more impartial point of view the distribution of the spoils is indeed "iniquissimum".55 In fact, there is no distribution at all. Just as for a valid emptio venditio, there had to be at least some counterperformance in money (even though not necessarily a iustum pretium),56 so in the case of a partnership contract each socius had to get at least some material benefit out of it (albeit not necessarily a fair share). For the Roman lawyers, this seems to have been inherent in the concept or nature of partnership.57

50On the problems raised by capital-service partnerships (in which one partner contributes money, the other services), see Ben Beinart, "Capital in Partnership", 1961 Асы Juridka 124 sqq.; Bona, op. cit., note 27, pp. 24 sqq.; Kaser, (1975) 41 SDHI 312 sqq.

51Arangio-Ruiz, Societa, op. cit., pp. 101 sqq.; Watson, Obligations, pp. 138 sqq. Contra (such an arrangement was valid, not because it could be fair, but only when in fact it was fair) Watson, (1981) 97 LQR 283 sqq. The answer turns on the correct interpretation of the words "si modo" in Gai. Ill, 149 and on whether UIp. D. 17, 2, 29, 1 is partly interpolated or not.

52On Paul. D. 17, 2, 30 cf. Gluck, vol. 15, pp. 418 sqq.; Vangerow, Pandekten, vol. Ill,

pp. 471 sq.; Arangio-Ruiz, op. cit., note 5, pp. 97 sqq.; Horak, Rationes decidendi, pp. 162 sqq.

53Ulp. D. 17, 2, 29, 2.

54Fabulae Aesopiae, I, 5. For details of its reception by Celsus, see Antonio Guarino, "La

societa col leone", (1972) 18 Labeo 72 sqq.

55Ulp. D. 17, 2, 29, 2.

56Cf. supra, pp. 252, 255 sqq.

57On societas leonina in modern law cf. Gluck, vol 15, pp. 425 sq.; Pothier, Traite du contrat de soctete, n. 12; Story, op. cit., note 1, § 18; art. 1855 code civil; Christian Muller-Gugenberger, "Bemerkungen zur 'societas leonina': Fabel-haftes im Gesell-

schaftsrecht", in: Gesetzgebungstheorie, juristische Logik, Zivilund Prozessrecht, Geda'chtnis- schrift fur Jiirgen Rodig (1978), pp. 274 sqq.; J.J. Henning, H.J. Delport, "Partnership", in: Joubert (ed.), The Law of South Africa, vol. 19 (1983), n. 370 (n. 30); Peter Ulmer, in: MunchmerKommentar, vol. Ill 2 (2nd ed., 1986), § 705, n. 118; Heenen, op. cit., note 1, n. 22.

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6. The actio pro socio

The actio pro socio, as we have seen, could be brought only after termination of the societas. Conversely, the institution of such an action involved dissolution of the societas. The actio pro socio entailed an allegation of breach of faith and it aimed at a condemnation which in turn entailed infamia.58 It could reasonably be inferred that a person bringing to bear this type of heavy artillery no longer wished to be a socius.59 The actio pro socio, therefore, did not aim at enforcing the obligations of the partners to make contributions to the (existing) societas;6u it was concerned, solely, with a general settlement of accounts between the two (ex-)partners involved in the litigation.61 "Quidquid ob earn rem Nm Nm A° A° dare facere oportet ex fide bona": this is, into what the judge was instructed to condemn the defendant. Thus, damages had to be taken into account which the plaintiff had suffered in the pursuit of the common purpose, or as a consequence of the defendant's fraudulent conduct.62 Expenses which the plaintiff had incurred for the societas were included,63 as were claims for his share in the profits64 or for compensation for contributions to the societas which the defendant had failed to render.65 On the other hand, however, thejudge subtracted all the claims which the defendant might have, on account of the societas, against the plaintiff. In this way a kind of set-off was effected, and the defendant was condemned only into the balance.66 This balance represented the final settlement of all claims of these two socii "ob earn rem" against each other.

In a very similar way, incidentally, the actions arising from mandatum and negotiorum gesto aimed at a general settlement of accounts; if the mandator sued the mandatarius for damages, the counterclaims of the latter were usually deducted, and he, too, was thus condemned into the balance only:

"In bonac fidei autem iudiciis libera potestas permitti videtur iudici ex bono et aequo aestimandi quantum actori restitui debeat. in quo et illud continetur ut, habita ratione

s>i Gai. IV, 182; Arangio-Ruiz, op. cit., note 5, pp. 185 sq.; Watson, Obligations, pp. 144 sqq.

Vl Paul. D. 17, 2, 65 pr. makes it clear that the bringing of the action, in itself, imports renunciation of the societas.

611 This obligation could, of course, be made indirectly enforceable by way of a slipulatio poenae: cf. e.g. Ulp. П). 17, 2, 41 sq.; Paul. D. 17, 2, 71 pr.; on the latter text c(. Apathy,

Animus navandi, pp. 237 sqq.; Kniicel, SHpulatio poenae, pp. 66 sqq.

61Cf., in particular, Wieacker, (1952) 69 ZSS 316 sqq. Contra: Guarino, (1968) 14 Labeo 158 sqq.; idem, Societd, pp. 77 sqq., but see Kaser, (1975) 41 SDHI 329 sqq.

62Cf. infra, p. 462.

w Ulp. D. 17, 2, 52, 15; Paul. D. 17, 2, 67, 2. M Paul. D. 17, 2, 65, 3.

M Ulp. D. 17, 2, 73; Paul. D. 17, 2, 74.

ы> Cf. e.g. Wieacker, (1952) 69 ZSS 326 sqq.

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