Eiability 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.

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

® Paul. 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.

³ Paul. D. 17, 2, 1, 1; Gai. D. 17, 2, 2.

'^A On 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.

⁵ Wieacker, (1952) 69 ZSS 342; Schulz, CRL. p. 553; Kaser, RPr I, p. 576.

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.^[2390] 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.^[2391] 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.

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.^{[2392] [2393] 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 BGB[2394] 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.