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.^[2386] 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",^[2387] and their relationship was subject to the rules relating to communio.^[2388] 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.

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 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.

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