SOCI´ETAS
SOCI´ETAS
partnership, is the name of a contract which arises when two
or more persons agree together to conduct for their joint account any lawful
business, or to share the profits and loss of any single piece of business,
or even of all their havings and doings. According to agreement, the
partners may contribute differently either in property or services, and may
have different shares in the result. In default of agreement, the shares
will be equal. As a rule the share of profits determines also the share of
loss, and
vice versâ; but this also is
subject to agreement, only all partners must have some share in the profits.
Otherwise, it would be as Cassius used to call it, with an allusion to the
fable (cf. Phaedr. 1.5), a “lionlike” partnership (
societas leonina), and invalid. Mucius (i. e. Q.
Mucius Scaevola) held that the shares of loss must be the same as the shares
of profit, but Servius (i. e. Serv. Sulpicius Rufus) held that this was not
necessary, and his opinion prevailed (
Dig. 17,
2,
11. 29, 30).
Partnership rests on consent, and may either be formed by particular words or
inferred from facts ( “et re et verbis et per nuntium coiri,”
Dig. ib. 4). It ceases on the death of a partner or on his bankruptcy, or on
the extinction of the thing or conclusion of the business which is the
object of the partnership, or on the occurrence of the time or condition
agreed to, or by notice given by any partner to the others. Civil death
(
capitis deminutio) in this as in other
matters was originally equivalent to natural death; but the later law
confined such effect to the loss of liberty or citizenship, while it
preserved the theory by holding that in the case of a mere change of status
(
min. cap. dem.) a new partnership arose by the
consent of the partners as often as the existing one was dissolved. Notice
of retirement is good only if the other partners are not unfairly put to a
disadvantage; otherwise the retiring partner has to compensate them, and
loses his share in the profits (Gaius, 3.151-154; Dig. ib. 63, 10-65, 14
sq.).
A partner must account for all profits made by him in partnership matters,
and manage the business as carefully as he does his own. He is liable for
losses occasioned by his negligence, and cannot set off against them any
profits produced by his exertions (Dig. ib. 25, 26). He can recover from his
partners any expenses in the conduct of the business which he has properly
incurred (Dig. ib. 52, 10-15; 60, 61; 67, 2; 72-74). The rights and
responsibilities of partners were enforced by a special action,
actio pro socio; i.e. a suit brought in the
character of a partner. It could be brought not only by a partner against
his fellows, but by or against a partner's heir, without the heir being
himself a partner or being made so by this action (Dig. ib. 35-38; 63, 8;
65, 9). It was an action
bonae fidei, i.e. it
took account of equitable considerations on both sides. Hence the judge was
called
arbiter (Cic.
pro
Rose. Com. 8, 24, 25; Dig. ib. 38). Condemnation in such a
suit made a man infamous (Gaius, 4.182;
Dig. 3,
2,
1), but, as in other
cases of close relationship, was not to be executed with such stringency as
to deprive the defendant of the necessary means of subsistence ( “in
id quod facere potest condemnari oportet,”
Dig. 17,
2,
63 pr., 3). Other rights of action were not excluded,
but their effect was limited to satisfaction in excess of what had been
already won by this. It differed from the
actio communi
dividundo by being confined to partners in the strict sense of
the term, i. e. persons to whom a community of goods has come by their own
choice and purpose, and not merely by accident or legal devolution, and by
its scope embracing not merely corporeal things, but debts and all kinds of
mutual claims and equities (Dig. ib. 43; 10, 3, 1-3).
Partnership did not make its members into one legal body: its effects were
confined to the members themselves; outsiders were in no way concerned. As a
rule a partner bound himself only to third parties; and he could alienate
only his own share of the partnership property (68, pr.). But some
tendencies towards a different rule are found. From
ad Heren.
2.13, 19, it would appear that solidarity among the partners of a bank was
sometimes customary ( “id quod argentario tuleris expensum ab socio
eius recte petere possis” ), and the convenience of the public is
given as the cause of a similar joint liability in the case of companies of
slavedealers (
Dig. 21,
1,
44,
1) and of
shipmasters (
Dig. 14,
1,
1,
25,
1-
4). And when partners appoint a
captain of a ship or a manager of a shop, his action makes each and all
liable to a suit at the hands of third parties. Of course a person thus
singled out would have claims to be reimbursed proportionally by his
partner.
As examples of partnerships may be mentioned: between neighbours to buy a
field for profit (Dig. ib. 52, pr., 31); between an owner of cattle or of
land and a farmer to pasture the cattle or till the land (2); trading in
cloaks (
sagaria negotiatio, 4); letting
chambers (10); building a common wall (13); contributing horses to make up a
team for sale (58, pr.); teaching grammar (71, pr.), &c. One of the
Transylvanian wax tablets (A.D. 167) is a record of an agreement for
partnership in a banking business (
danistaria)
concluded by stipulation (
C. I. L. iii. p. 950; also in
Bruns,
Fontes). Two of Cicero's early speeches
deal more or less with partnerships. That
pro Roscio
Comoedo relates to a slave belonging to Fannius, whom Roscius
agreed to train as an actor, the slave thus trained to be employed for their
common profit. The speech
pro Quinctio relates
to a partnership in a grazing farm.
Two special forms of partnership require distinct mention.
1.
Societas universorum bonorum is often spoken
of, and may very probably have originated in the position of brothers who
were coheirs (cf. Dig. ib. 52, 8; 10, 2, 39, 3; 31, 89, 1), a relationship
to which the name of
consortium seems to have
been specially applied (
Dig. 27. 1,
31,
4; cf.
Gel. 1.9.12). In this case all the corporeal
property of each partner becomes at once without specific delivery common to
both, and their future acquisitions by trade, inheritance, gift, damages for
bodily hurt, &c. fell into the common stock (Dig. ib. 1-3).
[p. 2.681]
2.
Societates publicanorum. The companies who
farmed the public taxes stood from their magnitude in a different position
from ordinary partnerships; but little is known of their legal character. An
heir, however, became a partner if accepted by the others, and, if not
accepted, still shared in the profits and loss (Dig. ib. 59; 63, 8). Such
interested persons may be meant by the term
adfines (
Liv. 43.116,
2; Kuntze,
Curs. § 697).
The shares (
partes) in these companies were
sold and rose and fell in price (
Cic. pro
Rab Post. 2, 4;
in Vat. 12, 29). Some
account of their proceedings is given in
Cic. Ver.
2.70-77, § §
170-190.
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