!!Экзамен зачет 2023 год / The Law of Obligations

cius quod inviccm actorem ex eadem causa praestare oporterct, in reliquum eum cum quo actum est condemnarc. "lp7

7.Liability between the partners

(a)The problem of contribution

A few words still have to be added about the circumstances under which (ex-)socii were liable to indemnify each other. On the one hand, as we have seen, there could be a claim if one of the partners, in the pursuit of the common purpose, had suffered a loss. Of course, this was not really a claim "for damages", for the aggrieved party did not blame his fellow socius for the loss. He merely asked him to contribute towards it by counting it as a disbursement on behalf of the partnership. But when could such a contribution be demanded?

"Quidam sagariam negotiationem coierunt: alter ex his ad merccs comparandas profectus in latrones incidit suamque pecuniam perdidit, servi eius vulnerati sunt resque proprias perdidit. dicit Iulianus damnum cssc commune ideoque actione pro socio damni partcm dimidiam adgnoscere debere tarn pecuniae quam rerum ceterarum, quas secum non tulissct socius nisi ad merces communi nomine comparandas proficisceretur."f'w

In this example, the partners are dealing in clothing. On a journey to purchase new merchandise, one of them is attacked by robbers. He loses his money and the personal belongings that he carries with him; furthermore, the slaves accompanying him are wounded. If the travelling partner would not have taken these things with him but for the fact that he was on his way to purchase material for the common enterprise, the loss, according to Julian, must be shared. It is attributable to the partnership; hence the duty of the other partners to contribute. This view, however, was not undisputed amongst the Roman jurists. Labeo, for instance, rejected an actio pro socio on account of medical expenses incurred by one socius in a case where some slaves had been kept for sale by the partnership and one of the partners had been wounded in an attempt to prevent a slave from breaking out and escaping. Reason: ". . . non in societatem, quamvis propter societatem inpensum [est]."69 That the expenses would not have been incurred but for the partnership is not sufficient; they must have been incurred (directly) for partnership purposes. This appears to be unduly harsh, even though it must be admitted that not all losses for which the partnership is a conditio sine qua non can sensibly be held to be recoverable.70

G7 Gai. IV, 61 (as restored in accordance with Inst. IV, 6, 30). Cf. further e.g. Kascr, RPr I, pp. 644 sq. 6H Ulp. D. 17, 2, 52, 4. Cf. further Ulp. D. 17, 2, 52, 3 and Ulp. D. 17, 2. 58 pr. and 1.

69Lab./Pomp. D. 17, 2, 60. 1.

70Сf. the argumentum ad absurdum by Labeo (D. 17, 2, 60, 1): ". . . si propter societatem eum heredem quis instituerc desisset aut legatum praetermisisset aut patrimonium suum neglegentius adminisirasset: . . . " The same, of course, applies to gains made

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(b) Dolus liability

On the other hand, we have said that a partner could bring the actio pro socio for damages resulting from the defendant's fraudulent conduct. This is correct only for the early period, however. Socii were liable to each other for dolus, and up to the time of classical law for dolus only.71 Thus, for instance, a socius who withdrew from the partnership inopportunely could be liable to his ex-partners. Renuntiatio, even on the part of only one partner, dissolved the societas. As a consequence, as Cassius put it, the renouncing partner released his colleagues from himself, but not himself from his colleagues (". . . eum qui renuntiaverit societati a se quidem liberare socios suos, se autem ab illis non liberare").72 Thus, he could still be compelled to share profits,73 and he had to compensate the others for any damages caused by the untimely dissolution of the societas:

"Item si societatem incamus ad aliquam rem emendam, deinde solus volueris earn emere ideoque renuntiaveris societati, ut solus emeres, teneberis quanti interest mea."74

(c) Extension: culpa lata, diligentia quam in suis, culpa

A liability between partners merely for fraud,75 however, could not permanently satisfy the needs of a more and more sophisticated economy. Thus, in the course of classical law, we find a gradual extension of the scope of liability. To begin with, we have to remember that dolus was not a hard-and-fast terminus technicus, unproblematically relatable to our modern concepts of fraud or intention. Dolus (malus) must rather be seen, particularly in the context of the consensual contracts, as the reverse of bona fides. What mattered, according to the formula, was whether the defendant had complied with the precepts of good faith. That this was not the case if he had

merely "propter societatem"; cf. the example given by Bartolus, Commentaria, D. 17, 2, 61, § Socius 1: "Alio modo potest intelligi propter societatem, hoc est, quod societas fuit occasio remota. Verbi gratia: propter societatem habui necesse accedere ad curiam principis: et dum coram principe tractarem negotia, placui principi, ex quo donavit mihi castrum: certe hoc non facit contemplatione societatis, sed personae meae tantum: licet nunquam habuissem nee accessissem, nisi propter societatem." For further discussion, see Peter Stein, "Julian and Liability for Loss Suffered in the Execution of a Contract in Roman Law", 1956 Butterworth's South African LJ 64 sqq.; Giuseppe Gandolfi, "Damnum commune", in: Studi in onore di Edoardo Volterra, vol. HI (1971), pp. 527 sqq.; Karlheinz Misera, "Zur Gefahrtragung bei der romischen societas", in: luris Professio, Festgabejiir Max Kaser (1986), pp. 201 sqq.

71Cf. e.g. Franz Wieacker, "Haftungsformen des romischen Gesellschaftsrechts", (1934) 54 ZSS 35 sqq.; Arangio-Ruiz, op. cit., note 5, pp. 188 sqq.

72Cass./Paul. D. 17, 2, 65, 3. Prerequisite, however: ". . . quod utique observandum est, si dolo malo renuntiatio facta sit." Cf. further Paul. D. 17, 2, 65, 6; Bona, op. cit., note 27, pp. 79 sqq., but see Kaser, (1975) 41 SDHI 335 sq.

73Example: ". . . plane si quis in hoc renuntiaverit societati, ut obveniens aliquod lucrum solus habeat, veluti si mihi totorum bonorum socius, cum ab aliquo heres esset relictus, in hoc renuntiaverit societati, ut hereditatem solus lucri faciat, cogetur hoc lucrum

communicare" (Gai. Ill, 151); cf. also Cass./Paul. D. 17, 2, 65, 3.

74Paul. D. 17, 2, 65, 4.

75For further texts cf. Paul. D. 2, 13, 9 pr.; Pomp. D. 17, 2, 59, 1; Ulp. D. 17, 2, 63 pr., 7.

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knowingly and wilfully caused damage to his colleagues is fairly obvious. But even grossly negligent behaviour can hardly be regarded as reconcilable (in any event: not necessarily as reconcilable) with the standards to be expected of someone steeped in Roman bona fides. Thus the liability of a socius must have included, qua dolus (if not originally, then at least in classical law) cases which came to be classified, at a later stage, as culpa lata. An important step towards extending the liability of socii was taken when the idea underlying the fragment of D. 16, 3, 32 was transferred from tutela and/or depositum to the contract of societas. According to Celsus, it is to be regarded as a breach of good faith if a depositary is more diligent with regard to his own property than with regard to what has been deposited with him. Thus he has to be responsible not only for dolus but for diligentia quam in suis.

The same considerations, obviously, commend themselves in the case of partnership. Hence the following statement of Gaius:

"Socius socio etiam culpae nomine tenetur . . . culpa autem non ad exactissimam diligentiam dirigenda est: sufficit etenim talem diligentiam communibus rebus adhibere, qualem suis rebus adhibere solet, quia qui parum diligentem sibi socium adquirit, de se queri debet. "76

This is diligentia quam in suis. But, interestingly, Gaius no longer even argues why a socius should also be liable if he has not exercised the care that he is used to exercising in his own matters (sc: and not only for dolus stricto sensu); his main concern appears to be the proper limitation of the socius' liability: he should be liable only for diligentia quam in suis (and not for culpa in abstracto). If somebody enters into a partnership with a careless person, he has to blame himself if his new partner does not rise above what may realistically be expected of him. This is a remarkable sign of proactive thinking,77 for a further extension of the liability appears to have been in the air. Ulpianus, for instance, some 60 years later, seems to have been prepared to hold a partner liable, under the actio pro socio, where he had negligently damaged goods held in common by the partners (". . . quod si rei communi socius nocuit, magis admittit culpam quoque venire").78 A liability not only for dolus but also for culpa in abstracto can easily be rationalized in terms of considerations of utility.79 Societas, after all, falls under the negotia utriusque gratia: it has been entered into for the benefit of all the partners and not merely for that of either the plaintiff or defendant in

76Gai. D. 17, 2, 72; largely incorporated into Inst. Ill, 25, 9. Diligentia quam in suis in D. 17, 2, 72 is usually taken to be of post-classical origin; cf. e.g. Wieacker, (1934) 54 ZSS 67 sqq.; De Robertis, Responsabilitd, pp. 549 sqq. But see Herbert Hausmaninger, "Diligentia quam in suis", in: Festschrift fur Max Kaser (1976), pp. 271 sqq.; Laffely, op. cit., note 29, pp. 31 sq., 137; Liebs, RR, pp. 210 sq.

77See, too, Hausmaninger, Festschrift Kaser, pp. 275 sq.

78Ulp. D. 17, 2, 52, 2 in fine.

79See Wieacker, (1934) 54 ZSS 57 sqq.

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the actio pro socio at issue. Hence the generalizing statement in Ulp. D. 13, 6, 5, 2 i.f: ". . . sed ubi utriusque utilitas vertitur, ut in empto, ut in locato, ut in dote, ut in pignore, ut in societate, et dolus et culpa praestatur." It is impossible to determine whether this correctly reflects the position in (late) classical law or whether we are dealing with an interpolation of post-classical origin. But there was certainly a tendency towards a more generalized liability for culpa.80

(d) Custodia and imperitia

If the picture presented so far appears to be complex and multifaceted (and it must be emphasized that nearly everything—apart from the initial dolus liability — has been and still is the subject of scholarly dispute), we have yet to add a further dimension to the problem of a partner's standard of liability. For, under certain circumstances, a socius was liable even for custodia and imperitia.

". . . si in coeunda societate, inquit [Cclsus], artem operamve pollicitus est alter, veluti cum pecus in commune pascendum aut agrum politori damus in commune quaerendis fructibus, nimirum ibi etiam custodia praestanda est: pretium enim operae artis est velamentum."*1

It is true that this text, as it has come down to us, contains the word "culpa" in the place of "custodia". But this appears to be interpolated. Justinian, as we have seen,82 generally attempted to dispose of the objective classical liability for custodia and substituted culpa for it. Apart from that, the "quod si" at the beginning of the next sentence ("quod si rei communi socius nocuit, magis admittit culpam quoque venire") would not make sense if both sentences had been dealing with liability for culpa.83 The source of inspiration for this strict type of liability seems to have been the rules developed with regard to locatio conductio operis. For it can happen (as, indeed, it does in the examples mentioned in D. 17, 2. 52, 2) that the same opera which may be promised by way of locatio conductio became the object of a societas. The work, under these circumstances, is equivalent to a contribution of any other kind towards the common purpose.84 Unlike under a

80Cf., apart from Ulp. D. 17, 2, 52, 2 and Ulp. D. 13, 6, 5, 2, Paul. D. 17, 2, 65, 9; Ulp. D. 50, 17, 23; Paul. Sent. II, XVI. These texts have al! been suspected of interpolation; traditionally the liability of the socius for culpa has been regarded as being of post-classical origin. Cf. particularly Wieacker, (1934) 54 ZSS 52 sqq.; but, see more recently, Laffely, op. cit., note 29, pp. 22 sqq., 60 sqq., 137 sqq.; cf. also Hausmaninger, Festschrift Kaser, p. 275. For a further interesting case of liability for culpa (in eligendo?) (also, possibly, spurious), cf.

supra, note 29.

81Ulp. D. 17, 2, 52, 2.

82Cf. supra, pp. 192 sq.

83Cf. further Ulp. D. 17. 2. 52, 3.

84The contribution of the partners to the societas could consist in money or other material assets, expertise or labour (or, of course, a combination of these); cf. e.g. Ulp. D. 17, 2, 5, 1; Pomp. D. 17, 2. 6; Proc. D. 17, 2, 80. "Pretium enim operae artis est velamentum" is a somewhat cryptic way of expressing this idea; cf. Arangio-Ruiz, op. cit., note 5, p. 192; Wieacker, (1934) 54 ZSS 48; Laffely, op. cit ., note 29, p. 29.

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contract of work, it is not done with a view to earning a merces. But societas and locatio conductio operis did not differ as to the nature of the work to be accomplished; and thus it is not unreasonable to expect of a socius in the role of a contractor what a contractor proper owes, too. The latter, as we have seen, was taken to have guaranteed that he was competent to perform the job that he had undertaken; and he was liable for custodia with regard to any objects handed over to him.85 This applied, for instance, if a herd of animals was entrusted to a cattlebreeder or arable lands to a politor for the raising of crops; and if that was appropriate where the breeding or cultivation was a performance for which a remuneration had been promised, it was equally apposite where it constituted the contribution to a societas. It is, incidentally, highly significant that it is one and the same author,

namely Celsus, whom we see discussing very similar examples in both D. 19, 2, 9, 5 and in D. 17, 2, 52, 3.86

8. Creation and partition of joint ownership

The bringing of the actio pro socio dissolved the societas. This was the end of the obligatory relationship between the partners. But what about the assets that were jointly owned by the partners? Apart, of course, from the societas omnium bonorum, the existence of such partnership property was not essential for a societas; a business partnership could be (and usually was) run without it.87 But where the parties had decided to pool all or some of their property, they became co-owners, each of them having "totius corporis pro indiviso pro pane dominium",88 and their relationship was subject to the rules relating to communio.89 As a consequence, where the societas was terminated, the actio communi dividundo had to be brought in order to achieve a partition of the joint property:

"Communi dividundo iudicium ideo necessarium fuit, quod pro socio actio magis ad pcrsonales invicem pracstationes pertinet quam ad communium rerum divisionem. deniquc cessat communi dividundo iudicium, si res communis non sit."90

Thus, where societas and communio coincided, two actions were available, one for the settlement of the mutual claims of the partners against each other, the other aiming at the adjudicatio of all res communes. As, however, the actio communi dividundo also entailed

a5 Cf. supra, pp. 397 sqq.

86Cf. Wieackcr, (1934) 54 ZSS 45 sqq.; Laffely, op. cit.. note 29, pp. 46 sqq., 52 sqq.

87For details, sec Wieacker, (1952) 69 ZSS 332 sqq. Conversely, of course, the mere

existence of common property (res communes) did not entail societas, cither: UIp. D. 17, 2, 71; Pothier, Traite du contrat de societe, n. 2; Story, op. cit., note 1, § 3.

88Cels./Ulp. D. 13, 6, 5, 15.

89 For details, see Kaser, RPr I, pp. 590 sqq. Differently Guarino, op. cit., note 11, pp. 60 sqq. (according to whom societas could be combined with communio only by way of a

special pactum adicctum); but see Kaser, (1975) 41 SDMI 293 sqq. 90 Paul. D. 10, 3, 1.

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settlement of the claims resulting from the former communio,91 both actions could overlap. The procedural consequence is spelt out by Proculus: ". . . altera actione alteram tolli [ait]."92

Much less clear than how the partners achieved a division of their jointly owned property, incidentally, is the question of what they had to do to create it in the first place. One would expect one of the normal modes for transferring ownership to have been necessary, viz. traditio, mancipatio or in iure cessio. For the societas omnium bonorum we do, however, have some evidence for what is usually referred to as a transitus legalis:

"In societate omnium bonorum omnes res quae coeuntium sunt continuo communicantur, quia, licet specialiter traditio non interveniat, tacita tamen creditor inter venire."93

This sounds as if the assets of the individual partners became common property automatically upon the formation of the partnership. But as cumbersome or even impossible as it would have been to require specific legal acts between all socii with regard to all their assets, it is hardly credible that it should have been possible, in classical law, to create co-ownership nudo consensu. The societas omnium bonorum finds its origin in the old consortium (ad exemplum fratrum suorum), which was constituted by way of "certa legis actio". It entailed, as a matter of course, community of property. It is not unlikely that this legis actio lived on, in a modernized version, as a collective (formal or merely factual?) act constituting joint ownership pro indiviso of the socii (omnium bonorum) in all their assets existing at the time of creation of the societas.94

II. JUSTINIAN, IUS COMMUNE AND MODERN DEVELOPMENTS

1. Liability between socii

Societas, as we have sketched it so far, was a typically Roman institution. It was based on good faith and fraternity, and it entailed a minimum of obligations.95 The lawyers, as usual, were anxious not to impinge on the freedom of the individual. Essentially a creation of

91Cf, e.g. Kaser, RPr I, p. 591; idem, RZ, pp. 265 sq.

92Paul. D. 17, 2, 38, 1. Otherwise, of course, the two actions could be brought together. Cf. Ulp. D. 17, 2, 43 and Levy, Konkumnz, vol. II, pp. 139 sqq.; Arangio-Ruiz, op. cit.,

note 5, pp. 195 sqq.; J.A.C. Thomas, "Concurrence of Actions with 'Actio Pro Socio' ", (1972) 7 The Irish Jurist 151 sqq.; Laffely, op. cit., note 29, pp. 89 sqq.

93Paul. D. 17, 2, 1, 1; Gai. D. 17, 2, 2.

94On this problem cf. Wieacker, Societas, pp. 138 sqq.; Arangio-Ruiz, op. cit., note 5, pp. 123 sqq.; Wieacker, (1952) 69 ZSS 498 sqq.; Paul van Warmelo, "Joint Ownership in Roman Law", (1957) 25 TR 150 sqq.; Pierre Cornioley, "De la 'communicatio rerum' dans la societas omnium bonorum"; in: Sein und Werden im Recht, Festgabejur Ulrich von Lubtow

(1970), pp. 493 sqq.; Kaser, (1975) 41 SDHl 300 sqq.

95Wieacker, (1952) 69 ZSS 342; Schulz, CRL, p. 553; Kaser, RPr I, p. 576.

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Republican jurisprudence, the consensual contract of societas survived the centuries and was preserved for posterity by Justinian. Even at this stage, it was still the only transaction allowing two or more parties to pool their assets for a common purpose.96 Neither the classical lawyers nor Justinian had developed any new types of commercial associations. Nevertheless, the picture presented in the Corpus Juris Civilis is not without problems and even inner inconsistencies.97 More particularly, there are those instances where the Digest reflects, rather disconnectedly, the different phases of development that a specific rule had undergone in classical law. The standard of the socius' liability is perhaps the best example.

Justinian himself seems to have been persuaded by the argument advanced by Gaius (". . . qui parum diligentem socium sibi adsumit, de se queri debet"); in his Institutes, he therefore declared diligentia quam in suis to be sufficient.98 Ironically, in order to achieve a restriction of liability, he reverted to the very text (Gai. 2 rer. cott.) which had originally served as a bridge for the extension of liability from dolus to culpa (in abstracto). In the Digest, however, we find not only the diligentia quam in suis of D. 17, 2, 72 but other instances where liability is for culpa (in abstracto) or even only for dolus. This obviously created problems in later centuries." Of the modern codes, § 211 I 17 PrALR, § 708 BGB100 and art. 538 I OR have opted for diligentia quam in suis, art. 1850 code civil and § 1191 ABGB for culpa without any further qualification.

2.The societas and third parties

(a)Sodi venalkiarii, actiones adiectidae qualitatis and societates publicanorum

More importantly, though, Justinian's compilation contains certain nuances—disturbing for the purist but most welcome to more pragmatic modernizers of later ages—which are irreconcilable with the original concept of a partnership law concerned, nearly exclusively, with the relations of the partners inter se (and even that only for the purposes and in the context of winding up), not with those of "the"

96 For an alternative way of organizing entrepreneurial activities (use of servi communes) cf. Andrea Di Porto, Impresa coliettiua e schiavo 'manager' in Roma antica (II sec. a.C.—II sec. d.C)"

(1984). According to Di Porto, certain deficiencies of the Roman societas (as, for instance, the instability of its structure) could thus be avoided. But see Alfons Biirge, (1988) 105 ZSS 856 sqq.

7 On the law of partnership under Justinian, see Guarino, op. cit., note 11, pp. 41 sqq.; Kaser, RPrll, pp. 410 sqq.; idem, (1975)41 SDH/318 sqq.

98Inst. Ill, 25, 9; cf. further De Robertis, Responsabilita, pp. 545 sqq.

99Cf. Hoffmann, Fahrlassigkeit, pp. 100 sq., 146 sqq., 215 sq.; Gliick, vol. 15, pp. 433 sqq.

100 The diligentia quam in suis in § 708 BGB has repeatedly been criticized, and the courts have tried to limit its range of application in various ways. Cf, for example, BGHZ 46, 313 (317), relating to road-traffic situations; further Karsten Schmidt, "Gesellschaft burgerlichen Rechts", in: Gutachten und Vorschlage zur Uberarbeitung des Schuldrechts, vol. Ill (1983), pp. 525 sqq.

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societas against third parties. We may mention here a special rule, attributed to Paul and relating to socii venaliciarii {firms of slavedealers): where one of them had sold a slave, the aedilitian remedies could be brought not only against the vendor but also against other members of the firm, "ne cogeretur emptor cum multis litigare . . .

nam id genus hominum ad lucrum potius vel turpiter faciendum pronius est".101 Then there is the generalization of two of the actiones adiecticiae qualitatis in Pap. D. 17, 2, 82 and Lab. D. 17, 2, 84: socii are liable for each others' transactions "[si] in communem arcam pecuniae versae sunt", and if the societas had been formed at the request of one of the partners, he could be sued directly by third parties with whom his partners had contracted ("Quotiens iussu alicuius . . . societas coitur, directo cum illius persona agi posse. . .").102 Furthermore, there was the interesting phenomenon of the societates publicanorum (or vectigalium), financial companies in which the farmers of public revenue organized themselves.103 Despite their name, they were corporate entities of public law rather than private partnerships. Thus, at public auctions (where the various kinds of State revenue were let for lease) the "socii" could act collectively through their senior partner (manceps); death of one of the partners did not dissolve the firm; and it was even possible for outsiders to invest capital in the societas by purchasing share certificates which circulated on the financial markets. Of great significance also was the fact that the actio pro socio could be brought, between publicani, manente societate: a rule which Justinian extended, rather vaguely, to other societates as well: "Nonnumquam necessarium est et manente societate agi pro socio."104

(b) Societas and agency

These are some of the more atypical features of the Roman societas, as preserved in the Corpus Juris Civilis. How far some of them possibly reach back into classical law cannot and need not be decided; to the writers of the ius commune, whose interest in Roman law was not of a purely historical nature, they provided essential cornerstones for a

1(11 D. 21, 1, 44, 1; cf further Ulp. D. 14, 1, 4 pr. and 1, Ulp. D. 14, 1, 1, 25, relating to a partnership of cxerdtores; Paul. D. 2, 14, 9 pr.; Paul. D. 2, 14, 25 pr.; Paul. D. 2, 14, 27 pr. relating to socii argentarii. For details, see Feliciano Serrao, "Sulla rilevanza esterna del rapporto di societa in diritto romano", in: Studi in onore de Edoardo Volterra, vol. V (1971), pp. 743 sqq.; Guarino, op. cit., note 11, pp. 104 sqq.; cf. also already Wieacker, (1952) 69 ZS5 496.

102 On these fragments cf. e.g. Scrrao, Studi Volterra, vol. V, pp. 744 sqq.; Claus, Stellvertretung, pp. 145 sqq., 354 sqq.; Kaser, RPr II, pp. 106 sq.

"" Cf e.g. Buckland/Stern, p. 513; Thomas, TRL, p. 472; P.W. Duff, Personality in Roman Private Law (1938), pp. 159 sqq.; J.A. Crook, Law and Life in Rome (1967), pp. 233 sqq.; for further details especially Ferdinand Kniep, Societas pubticanomrn (1896); Claude Nicolet, "Polybius VI, 17, 4 and the Composition of the societates publicanorum", (1971) 6

The Irish Jurist 163 sqq.; Maria Rosa Cimma, Ricerche suite societa di publicani (1981); for the

social background cf. E. Badian, Publicans and Sinners (1972), passim. 104 Paul. D. 17, 2, 65, 15.

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re-interpretation of the classical partnership contract in the light of contemporary social and economic conditions. Societas was received throughout Europe as a convenient and flexible basis for all personal business associations;105 but in the course of this reception it was changed, in turn, not inconsiderably.106 Some of its more individualistic features were abandoned for the sake of a greater coherence of the association, and the management of the societas was facilitated in that it ceased to be a merely internal association.

Especially important in this respect was the development of the idea of agency.107 Here one could draw, for instance, on the actio institoria. Once it was recognized, first of all, that the socii could authorize either each other or one or more of their number, by way of an express or implied mandate, to carry out transactions arising within the framework of the common purpose,108 it was a relatively small step to regard anyone who had such an implied mandate to manage the partnership business as an institor.109 As a consequence, he could make

his fellow-socii liable under the actio institoriae, provided he had acted only "nomine communi"110 and not in his own name. But were the

other partners liable in solidum or only pro rata parte, qua socii sunt? The latter appears to have been the rule, but it was almost negated by the number and importance of the exceptions.111 Thus, it was often argued that a creditor had a solidary action against all partners, where the partners had concluded the transaction "promiscue", where they had entrusted the management of the partnership to one of them, or to an outside factor, or where they had all undertaken the handling of the partnership, not, however, "communiter et pro indiviso", but "pro diviso, seu separatim, per partes aut regiones distributa administratione".112 Sometimes local custom or a piece of legislation

Ю5 "-pne Roman Law is an inexhaustible treasure of various and valuable learning; and the principles applicable to the Law of Partnership are stated with uncommon clearness . . . A slight glance at them will at once show the true origin and basis of many of the general doctrines, incorporated into the modern jurisprudence of Continental Europe, as well as into that of the Common Law" (Story, op. cit., note 1, p. IX).

106For details, see Coing, pp. 464 sqq.

107On the development of agency in general cf. supra, pp. 54 sqq.; on agency of partners, see especially Peter Stein, "The Mutual Agency of Partners in the Civil Law", (1958-59) 33 Tulane LR 595 sqq., and Story, op. cit., note 1, § 1, §§ 101 sqq.

108This was done already by the glossators; cf. Stein, (1958-59) 53 Tulane LR 598.

It seems to have been taken first by the commentators: Stein, (1958—59) 33 Tulane LR

599 sq.; cf. also Coing, pp. 466 sqq.

110 "Titius et socii" was sufficient; the other socii did not have to be named; cf. e.g. Holdsworth, vol. VIII, p. 198; Coing, p. 468. Cf. further Story, op. cit., note 1, § 102. On the business name of a commercial partnership {"Firma") in modern law, sec Heenen, op. cit., note 1, nn. 127 sqq.

manages the business at Perugia, the other at Florence. It seems to have been possible to limit liability to the amount of capital which they had originally invested: cf. Coing, p. 468; also

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provided differently; thus, for instance, the Dutch usus hodiernus inter mercatores limited the liability of partners pro rata parte "etiam tune, cum plures socii unum ex suo numero vel extraneum velut institorem societati praefecerunt".113 A French Ordonnance of 1673, on the other hand, imposed solidary liability on each partner for the debts of a commercial partnership.114 Interestingly, both the Dutch custom and the French law were justified as favouring commerce.115 Of course, merchants may be more easily inclined to embark on joint ventures if they know that their liability is limited; on the other hand, they may find it difficult to obtain credit, for potential creditors usually find a societas more attractive where all partners are liable jointly and severally.116

3. The actio pro socio

Another major change the law of partnership underwent under the ius commune related to the actio pro socio. Each partner was obliged to make some contribution to the societas: be it money, movable or immovable property, skill or labour.117 Material contributions, for instance, usually had to be transferred, in the normal manner, into the common property of all partners; since the days of Justinian,

endowment of the societas with ajointly owned partnership fund (area communis)118 had been the rule.119 But what if one of the partners

refused to give up his ownership in what was supposed to become a partnership asset? What if, contrary to the terms of the agreement, he did not provide the use, for the common benefit, of what he continued to own, or if he did not render his services? According to (classical) Roman law, any of the other partners could sue, under these circumstances, only if at the same time he accepted termination of the contractual relationship between the socii.120 By the time of the usus

Henning/Delport, op. cit., note 57, n. 362 in fine. On the question whether the beneficium divisionis applied, cf. Stein, (1958-59) 33 Tulane LR 601.

113Voet, Commentarius ad Pandectas, Lib. XVII, Tit. II, XIII in fine.

114Cf. Pothier, Traile du contrat de saciete, n. 96.

115Grotius, De jure belli ac pacts, Lib. II, Cap. XI, 13; Pothier, Traite du contrat de societe,

n. 96.

116On the liability of members of a partnership to third parties, see Heenen, op. cit., note 1, nn. 91, 140 sqq. It is characteristic of a partnership (as opposed to other forms of business association) that all members are personally and without limit liable for partnership debts. On South African law, see Henning/Delport, op. cit., note 57, nn. 412 sqq.

117On the need for a contribution by each member in modern law, cf. Heenen, op. cit.,

note 1, nn. 23 sqq.

118Cf. e.g. Pap. D. 17, 2, 82 {classical, according to Kaser, RPr II, p. 410, n. 9).

119Kaser, RPr II, p. 410. In the terminology of the later ius commune, societas was normally (though nor necessarily) quoad sortem, not merely quoad usum; cf. e.g. Wieacker, (1952) 69 ZSS 302 sqq., and particularly Ben Beinart, "Capital in Partnership", 1961 Acta

Juridica 122 sqq., 144 sqq. On partnership property cf. also Story, op. cit., note 1, §§ 88 sqq. 120 -j-ne same applied incidentally, according to the English common law; only in equity

was a remedy granted under certain (narrow) circumstances. For the details, see Story, op. cit., note 1, §§ 216 sqq.

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