Evolution of the contract of societas
(a) Erctum non citum
In Institutions III, 154, Gaius refers to this type of consensual societas ("haec quidem societas de qua loquimur, id est quae nudo consensu contrahitur") as an institution iuris gentium, that is, not peculiar to Roman citizens.
The implication appears to be that Roman law (at least at some stage of its development) knew a non-consensual societas which was not iuris gentium. In fact, one had always suspected as much. In February 1933, however, a parchment was discovered in an antiquarian bookshop in Cairo which confirmed this hypothesis.2 It turned out to contain, inter alia, an entirely new fragment of Gaius' Institutes, which had not been preserved in the Veronese palimpsest3 and which reads as follows:"Est autem aliud genus societatis proprium civium Romanorum, olim enim, mortuo patre familias, inter suos heredes quaedam erat legitima simul et naturalis societas, quae appellabatur ercto non cito, id est dominio non diviso.... Alii quoque, qui
1David Daube, "Societas as Consensual Contract", (1938) 6 Cambridge LJ 391. Cf. generally Jacques Heenen, "Business and Private Organisations", in: International Encyclo pedia of Comparative Law, vol. XIII, 1, nn. 15 sqq.; Joseph Story, Commentaries on the Law of Partnership (5th ed., 1859), §§ 1 sqq., 15 sqq.
2Cf. e.g. Ernst Levy, "Neue Bruchstucke aus den Institutionen des Gaius", (1934) 54 ZSS 258 sqq.
3Why? Has this passage been omitted intentionally from the Veronese manuscript (which is from the late 5th century) because it dealt with an entirely outdated and obsolete institution, the discussion of which appeared to be unnecessary for elementary instruction purposes? Cf. e.g. Levy, (1934) 54 ZSS 270 sqq., but also Francis de Zulueta, "The New Fragments of Gaius (PSI.
1182)", (1934) 24 JRS 182.451
volebant candcm habere societatem, potcrant id conscqui apud praetorcm certa legis actione."[2308]
This text draws our attention to an institution of pre-classical ("olim") law which must be seen as the earliest form and historical basis of partnership arrangements in Roman law. It refers to a specific aspect of the once all-important law of the family. On the death of the paterfamilias, the familia broke up into as many new familiae as there were sui heredes. However, in the old days, all these families remained united in a community of co-heirs (or, as Gaius puts it: brothers), a consortium which was called erctum non citum[2309] and through which the old familia[2310] continued to exist, in both its legal and its sacral substance. This consortium led to a complete community of property and was characterized by the fact that the individual co-heirs did not have a specific share in the inheritance: all rights vested in the community of co-heirs.
(b) Pre-classical consortium and classical societas
It was this type of consortium which parties who wished to pool their assets were then allowed to create artificially,[2311] [2312] first by means of "certa legis actio", an ancient and formal type of procedure. "fA]d exemplum fratrum societatem coierint", is how Gaius describes what these partners did:[2313] they contracted a partnership on the model of the (natural) brothers of an undivided familia. In the course of time, however, the legis actio procedure proved to be too cumbrous, and eventually, therefore, the praetor granted an action on the basis of a purely consensual societas. The parties had pooled their property[2314] in order to pursue a common purpose and good faith demanded that such an arrangement be honoured, no matter whether it was based on some outmoded formal act or not. It was still societas omnium bonorum, though, a partnership involving all the partners' assets of whatever source. Throughout classical and post-classical law it remained one of the basic types of partnership, and it retained certain characteristics of the old consortium.[2315] It is, however, unlikely that this type of transaction was widely practised in classical times.[2316] Societas omnium bonorum finds its origin in family law and succession, not in mercantile practice. It may be suitable between close friends and relatives, or between farmers wishing to engage in a communal agricultural enterprise.[2317] But already in the second century B.C. Rome was not the closely-knit agricultural community of old any longer. Trade and commerce flourished, and with it came an increasing desire to form profit-oriented business partnerships. Businessmen who wish jointly to run a bank,[2318] to embark on the trading of slaves or on the building of roads do not normally want to pool all their (private) assets. They want to confine their association with each other to a specific type of business or sometimes even to one particular transaction. Societas omnium bonorum therefore being inconvenient for their purposes, the praetor (probably initially the praetor peregrinus) during the later Republic began to protect such informal unions created for the purpose of a joint commercial enterprise.[2319] In the course of time the old civilian societas omnium bonorum and the more modern business partnership amalgamated and formed the basis for the classical consensual societas.[2320] The contract of societas in classical law thus provided a general framework for all types of partnership arrangements, whether they be omnium bonorum, negotiationis alicuius or rei unius.[2321] [2322] [2323] [2324] [2325] [2326] Apart from these, there was a societas omnium bonorum quae ex quaestu veniunt which involved a pooling of all assets deriving from business activity (as opposed to, for instance, gifts or legacies). This seems to have become a popular type of societas for, according to Ulpian,18 its conclusion was to be presumed in case of doubt, i.e. if the partners had simply entered into a societas without specifying which type it was to be. 3.
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