Pt. I. Ch. II. In both cases of hiring of services, the responsibility BOOK III. of him that lets his services is increased to the extent of making good 'imperitia.'" b a Tryph. Celsus etiam imperitiam culpae adnumerandam scripsit: si quis vitulos pascendos, vel sarciendum quid poliendumve conduxit, culpam eum praestare debere, et quod imperitia peccavit culpam esse, quippe ut artifex, inquit, conduxit.-1. 9, § 5, D. h. t.' : Ulp. Adversus mensorem agrorum praetor in factum actionem proposuit, a quo falli nos non oportet: nam interest nostra, ne fallamur in modi renuntiatione, si forte vel de finibus contentio sit, vel emtor scire velit vel venditor, cuius modi ager veneat. Ideo autem hanc actionem proposuit, quia non crediderunt veteres inter talem personam locationem et conductionem esse, sed magis operam beneficii loco praeberi et id quod datur ei, ad remunerandum dari et inde honorarium appellari; si autem ex locato conducto fuerit actum, dicendum erit nec tenere intentionem.-Haec actio dolum malum dumtaxat exigit; proinde si imperite versatus est, sibi imputare debet qui eum adhibuit; sed et si negligenter, aeque mensor securus erit; lata culpa plane dolo comparabitur.-D. 11, 6, I pr., §1.2 the object itself is not given by him for whom that would be made; but it is otherwise if I should give a piece of land unbuilt on, where he should build a house, since then the material issues from me. : 1 Cels. has written that unskilfulness is also to be counted as a fault if a man have undertaken the pasturing of calves, or to mend or clean something, he must make good his fault, and his error through unskilfulness is a fault because, (Cels.) says, it was as a skilled workman that he undertook it. * Against a land-surveyor the Praetor has created an action in factum, by which we must not be deceived: for it concerns us not to be deceived in a report as to the dimensions, if so be either there is a dispute as to the boundaries, or the Ꭱ Ꭱ 2 a Cf. § 133. Cf. Inst. iv. 3, iii. 122 (Steph. 7, and Blackst, iii. 386). BOOK III. Pt. I. Ch. II. As still requiring special mention, there are the public farmings (locationes, venditiones) of the Staterevenues (vectigalia),-which generally extended to a 'lustrum'-customary with the Romans, especially of the taxes, the use of mines and the like; and further, the leasing of public works, structures and purveyance (ultro tributa) to particular contractors (publicani, mancipes), as a rule to societies of capitalists (societates a D. 3, 4, 1 pr. publicanorum)" as agent of whom the manceps concluded the contract with the State, to which other 'socii' were made parties as praedes." Cf. § 118, ad fin., and see further, § 192. Festus Venditiones olim dicebantur censorum locationes, quod velut fructus publicorum locorum venibant.—s. h. v. (p. 376, M.).1 Gai. Eum, qui vectigal populi Romani conductum habet, publicanum appellamus.-D. 50, 16, 16.2 Paul. ex Festo Manceps dicitur, qui quid a populo emit conducitve, quia manu sublata significat se auctorem emptionis esse.-h. v. (p. 151, M.).3 purchaser or vendor wishes to know the measure of the land which is sold. Now he created this action because the old jurists supposed there is no letting and hiring with such a person, but rather that the labour is given as a kindness, and that what is given to him is given as a fee, and so is called an 'honorarium'; but that if proceedings have been taken upon the letting and hiring, one must say the claim is not entertained. This action only excludes fraud; . . . if accordingly he has gone to work unskilfully, one must blame the person that employed him; but even if he have been negligent, the surveyor will be protected all the same. Gross negligence will clearly be equivalent to fraud. 1 Venditiones was the name formerly given to leases granted by the censors because, as it were, the fruits of public places were sold. * We call a person publicanus who farms the taxes of the Roman people. * He is called manceps who purchases or hires anything from the people, because by raising the hand he signifies that he initiates a purchase. § 124. CONTRACT OF PARTNERSHIP." a BOOK III. Pt. I. Ch. II. between the Partnership; 159-161. For 449). The Contract of PARTNERSHIP (societas) is that For analogies agreement concluded between two or several persons Roman and our Common Law, (socii) as to any association relating to property, ordi- see Story on narily but not always-to promote a common, per- several set out missible, chiefly pecuniary purpose. This association by Scrutton, pp. can relate to the whole present and future property Equity, see (societas omnium bonorum, and in the earlier time Story on that topic, § 682 especially in the form of consortium of a family, (Grigsby, p. who by inheritance from their parents retained an cf. D. 38, 2, undivided property), or to a single thing, e.g., parcel 1, 1. of land, slave, team (societas unius rei)-indeed the two oldest forms of partnership; or to the future individual acquisitions of partnerships (societas quaestus, lucri, compendii); or finally, to acquisitions from a joint and permanent undertaking, or a single business jointly undertaken (societas quaestus, negotiationis).c • Cf. D. 17, 2, Ulp. Societates autem contrahuntur sive uni- 71 pr. Paul. In societate omnium bonorum omnes Ulp. Coire societatem et simpliciter licet et, si non fuerit distinctum, videtur coita esse universorum, quae ex quaestu veniunt, hoc est si quod lucrum ex emptione, venditione, locatione, conductione descendit.-1. 7 eod.3 1 Now partnerships are contracted either in respect of the whole property, or in respect of some transaction, or the revenue, or in respect of a single matter. 2 In respect of partnership in the whole property, all things which belong to those who join are uninterruptedly held in common. 3 One can enter into a partnership even for an undefined purpose, and if nothing have been determined, it is regarded as BOOK III. Pt. I. Ch. II. a Cf. D. 38, 1, 2. The duration also of the partnership can be variously settled. Societas coiri potest vel in perpetuum, i.e. dum vivunt, vel ad tempus, vel sub condicione.— 1. I pr. eod.1 As regards the contributions" of the partners, these can be dissimilar, indeed, of a different kind (res, operae). Societas autem coiri potest et valet etiam inter eos, qui non sunt aequis facultatibus, cum plerumque pauperior opera suppleat, quantum ei per comparationem patrimonii deest.-1. 5, § I eod.2 Gai. iii. § 149: Nam et ita posse coiri societatem constat, ut unus pecuniam conferat, alter non conferat, et tamen lucrum inter eos commune sit saepe enim opera alicuius pro pecunia valet.3 Ulp. Donationis causa societas recte non contrahitur.-1. 5, § 2, D. h. t.* The shares of profit and loss may likewise be different. Quodsi expressae partes fuerint, hae servari debent nec enim umquam dubium fuit, quin valeat conventio, si duo inter se pacti sunt, ut ad unum quidem duae partes et damni et lucri per entered into in respect of all that accrues from receipts, that is, 2 But a partnership can also be entered into and is valid between persons who do not possess the same means, since commonly the poorer party supplies by his labour what he lacks by comparison of his estate. 3 For it is well known that a partnership can be entered into upon such terms that one shall contribute capital, the other shall not, and yet the profit shall be common between them; for often the services of one have the value of money. 4 A partnership is not properly contracted upon the ground of a gift. tineant, ad alium tertia.-§ 1, I. h. t. (=de societ. Gai. iii. § 149: Magna autem quaestio fuit, Paul.: Mucius scribit non posse sociatatem coiri, ut aliam damni aliam lucri partem socius ferat; Servius in notatis Mucii ait nec posse societatem ita contrahi, neque enim lucrum intelligitur nisi omni damno deducto, neque damnum nisi omni lucro deducto: sed potest coiri societas ita, ut eius lucri, quod reliquum in societate sit omni damno deducto, pars alia feratur, et eius damni, quod similiter relinquatur, pars alia capiatur.-1. 30, D. h. t. [quod ita intelligi oportet, ut si in aliqua re lucrum in aliqua damnum allatum sit, compensatione facta solum quod superest intelligatur lucri esse.—§ 2, I. h. t.] 3 3 1 But if the shares have been specified, these must be adhered to; for it has never been doubted that an agreement is binding if two persons have together arranged that two-thirds of the profit and loss shall belong to one, one-third to the other. 2 But there has been much controversy whether a partnership can be so entered into, for one partner to take the bulk of the profit, but bear the smaller part of the loss. This Q. M. [thought to be contrary to the very nature of a partnership, but S. S., whose] opinion has prevailed, went so far to think that such a partnership could be entered into, that he has said that it could be entered into so that one partner bear no loss whatever, but take a share of the profit. 3 Muc. writes that a partnership cannot be contracted for a partner to have one share of profit, another share of loss. Serv. says, in his comments upon Muc., such a partnership cannot be entered into, for profit is to be taken as existing only BOOK III. Pt. I. Ch. II. |