BOOK III. Pt. 1. Ch. II. Ulp. Aristo refert Cassium respondisse, societatem talem coiri non posse, ut alter lucrum tantum, alter damnum sentiret, et hanc societatem, leoninam' solitam appellari; et nos consentimus talem societatem nullam esse. 1. 29, § 2, D. h. t.1 If no more particular arrangement has been made, the partners have absolutely equal shares; in case only the share of profit of the several partners has been fixed, the same distribution obtains also in respect of the loss. Gai. iii. § 150: Et illud certum est, si de partibus lucri et damni nihil inter eos convenerit, aequis ex partibus commodum et incommodum inter eos commune esse; sed si in altero partes expressae fuerint, velut in lucro, in altero vero omissae, in eo quoque quod omissum est, similes partes erunt.2 The partners are responsible to one another For the enforcement of his claims under the partnership agree D. 17, 2, 72. for 'diligentia quam suis rebus.'a after deduction of all loss, and loss only after deduction of all profit. But a partnership can be contracted upon the terms that, of such profit as remains after deduction of the whole loss of the partnership, one share should fall (to one), and of such loss remaining over in like manner another share shall be taken. [-and this must be understood so that, if profit has been derived in one matter, loss in another, only what remains over after striking a balance is to be regarded as profit.] 1 Aristo tells of an opinion given by Cassius, that such a partnership-where one should enjoy the profit alone, the other suffer the loss-cannot be contracted, and that such a partnership is generally called 'leonine.' We too agree that such a partnership is void. 2 And this is certain, that, if there have been no agreement between them as to the share of profit and loss, yet the profit and loss must be shared between them equally; but if the shares have been specified with regard to one particular, for example, in respect of profit, but not mentioned as to the other, the shares will correspond in respect of that of which no mention is made. ment, every socius has at his command the actio pro socio,' entailing infamy." a BOOK III. Pt. I. Ch. II. Paul. Si tecum societas mihi sit et res ex § 135. Id. Si quis societatem contraxerit, quod emit, (1) by agreement (dissensus), or one-sided with- ¿ I.e., condrawal (renuntiatio). : sensus con trarius. Cf. Paul. Nulla societatis in aeternum coitio est. § 141, 1 If I am in partnership with you, and have joint property in virtue of the partnership, Proc. says that I shall recover what I spend on it, or the revenue that you have derived from it, either by the partnership action or by that for the partition of joint property, and that the one action is excluded by the other. * If a man has contracted a partnership, that which he purchases becomes his own, not joint property; but by the partnership action he is compelled to make it joint property. There is no such thing as entering into partnership for ever. -It is very clear that such an agreement as that no division whatever shall take place is of no force. BOOK III. Pt. I. Ch. II. tiavit pertinebit, commodum autem communicare cogetur actione pro socio.-Labeo autem scripsit, si renuntiaverit societati unus ex sociis eo tempore, quo interfuit socii non dirimi societatem, committere eum in pro socio actionem: nam si emimus mancipia inita societate, deinde renunties mihi eo tempore, quo vendere mancipia non expedit, . . . teneri te pro socio iudicio.-1. 65, §§ 3, 5, D. h. t.1 (2) By death. Solvitur adhuc societas etiam morte socii, quia qui societatem contrahit, certam personam sibi elegit; sed et si consensu plurium societas coita sit, morte unius solvitur, etsi plures supersint : nisi si in coeunda societate aliter convenerit.§ 5, I. h. t.2 Ulp. In heredem quoque socii pro socio actio 1 We have said that partnership is dissolved by agreement; that is, if all are agreed. What, then, if one renounce? Cass. writes that he who has renounced the partnership discharges his colleagues from obligation towards himself, but is not himself discharged by them. And this is always to be noted, if the renunciation has been made fraudulently, for example, if when we had entered into partnership of all property, afterwards, upon an inheritance devolving upon one, he renounced because of it. And accordingly, if the inheritance have in fact brought loss, this will attach to him that has renounced, but by the partnership action he will be compelled to make a gain partnership property.-Now Labeo has written, if one of the partners has renounced the partnership at a time when it was to their advantage that his partnership should not be determined, he is liable to the partnership action; for if we have bought slaves upon entering into partnership, and you afterwards renounce the partnership with me at a time when it is not of advantage to sell slaves, you are liable to the partnership action. 2 A partnership is, further, dissolved by the death also of a partner, because he that contracts a partnership selects a particular person as his partner; but even if the partnership has been created by the consent of several, it is dissolved by the death of a single partner, although several survive, unless there was an agreement to the contrary upon the creation of the partnership. competit, quamvis heres socius non sit.-1. 63, Paul.quod ex re communi postea quaesitum (3) Or capitis diminutio (maxima and media). Societas quemadmodum ad heredes socii non transit, ita nec adrogatorem, ne alioquin invitus quis socius efficiatur, cui non vult; ipse autem adrogatus socius permanet: nam et si filiusfamilias emancipatus fuerit, permanebit socius.— Ibid. § 11.3 (4) By bankruptcy of a socius. Item bonis a creditoribus venditis unius socii distrahi societatem Labeo ait.-Ibid. § 1. a BOOK III. Pt. I. Ch. II. Since partnership as an obligatory relation only concerns the partners-in contrast with a corporation a a § 68. —it has no influence whatever upon the position under Private Law of the individual partner towards third parties, so that the legal effect of transactions concluded for the partnership operates directly in favour of the individual partner; and there is no jural distinction made between partnership and private claims or debts of the individual partners upon or to third parties. 1 The partnership action is available against the heir also of a partner, although the heir is not a partner. that which has been subsequently acquired from joint property, and fraud and negligence in respect of that which depends upon a previous transaction, must be made good as well by the heir as for him. 3 Just as a partnership does not pass to the heirs of the partner, so also neither to an arrogator, lest a man against his will be made a partner of one not wishing it; but the person arrogated himself remains partner; for even if a fil. fam. shall be emancipated, he remains partner. Likewise Labeo says that if the property of one partner has been sold by the creditors, the partnership is dissolved. b Cf. Hunter, p. 521. BOOK III. Pt. I. Ch. II. a Bell, s. v. § 125. MANDATE. MANDATUM is the contract by which some one (Mandatory, procurator) undertakes a commission for the gratuitous management of a lawful businesswhether the performance of work or service, adminisSee the lead-tration, or legal transaction. ing case of Coggs v. Bernard. Paul. Mandatum, nisi gratuitum, nullum est, nam originem ex officio atque amicitia trahit, contrarium ergo est officio merces: interveniente enim pecunia res ad locationem et conductionem potius respicit.-Si remunerandi gratia honor intervenit, erit mandati actio.-1. 1, § 4, 1. 6 pr., D. h. t. (mand. 17, 1).1 Quibus casibus sine mercede suscepto officio mandati aut depositi contrahitur negotium, his casibus interveniente mercede locatio et conductio contrahi intelligitur: et ideo si fulloni polienda curandave vestimenta dederis aut sarcinatori sarcienda nulla mercede constituta neque promissa, mandati competit actio.—§ ult. I. h. t. 3, 26.2 Gai. Mandatum inter nos contrahitur, sive mea tantum gratia tibi mandem, sive aliena tantum, sive mea et aliena, sive mea et tua, sive tua et aliena. § Mea tantum gratia intervenit mandatum, veluti si tibi mandem, ut negotia mea geras, vel ut fundum mihi emeres, vel ut pro me fideiubeas. § Aliena 1 A mandate is nothing save as gratuitous, for it originates in kindness and friendship: a reward is, accordingly, inconsistent with kindness, for when money comes in, the transaction contemplates rather a letting and hiring.-If an honorarium obtains by way of reward, an action of mandate will lie. 2 In all cases in which upon a service being undertaken without reward a contract exists of commission or deposit, in such cases, when remuneration does obtain, the contract is understood to be of letting and hiring. If therefore one have given to a fuller clothes to clean or look after, or to a tailor to repair, without fixing or promising remuneration, an action of mandate is available. |