Liability between the partners

(a) The problem of contribution

A few words still have to be added about the circumstances under which (ex-)socii were liable to indemnify each other. On the one hand, as we have seen, there could be a claim if one of the partners, in the pursuit of the common purpose, had suffered a loss.

Of course, this was not really a claim "for damages", for the aggrieved party did not blame his fellow socius for the loss. He merely asked him to contribute towards it by counting it as a disbursement on behalf of the partnership. But when could such a contribution be demanded?

"Quidam sagariam negotiationem coierunt: alter ex his ad merces comparandas profectus in latrones incidit suamque pecuniam perdidit, servi eius vulnerati sunt resque proprias perdidit, dicit lulianus damnum esse commune ideoque actione pro socio damni partem dimidiam adgnoscere debere tarn pecuniae quam rerum ceterarum, quas secum non tulisset socius nisi ad merces communi nomine comparandas proficisceretur. "^f,w

In this example, the partners are dealing in clothing. On a journey to purchase new merchandise, one of them is attacked by robbers. He loses his money and the personal belongings that he carries with him; furthermore, the slaves accompanying him are wounded. If the travelling partner would not have taken these things with him but for the fact that he was on his way to purchase material for the common enterprise, the loss, according to Julian, must be shared. It is attributable to the partnership; hence the duty of the other partners to contribute. This view, however, was not undisputed amongst the Roman jurists. Labeo, for instance, rejected an actio pro socio on account of medical expenses incurred by one socius in a case where some slaves had been kept for sale by the partnership and one of the partners had been wounded in an attempt to prevent a slave from breaking out and escaping.

Reason: "... non in societatem, quamvis propter societatem inpensum [est]."⁶⁹ That the expenses would not have been incurred but for the partnership is not sufficient; they must have been incurred (directly) for partnership purposes. This appears to be unduly harsh, even though it must be admitted that not all losses for which the partnership is a conditio sine qua non can sensibly be held to be recoverable.^{70 ^[2367] ^[2368] (b) Dolus liability
On the other hand, we have said that a partner could bring the actio pro socio for damages resulting from the defendant's fraudulent conduct. This is correct only for the early period, however. Socii were liable to each other for dolus, and up to the time of classical law for dolus only.^[2369] Thus, for instance, a socius who withdrew from the partnership inopportunely could be liable to his ex-partners. Renuntiatio, even on the part of only one partner, dissolved the societas. As a consequence, as Cassius put it, the renouncing partner released his colleagues from himself, but not himself from his colleagues ("... eum qui renuntiaverit societati a se quidem liberare socios suos, se autem ab illis non liberare").^[2370] ^{^[2371] Thus, he could still be compelled to share profits,⁷³ and he had to compensate the others for any damages caused by the untimely dissolution of the societas:}
"Item si societatem ineamus ad aliquam rem emendam, deinde solus volueris earn emere ideoque renuntiaveris societati, ut solus emeres, teneberis quanti interest mea."^[2372]
(c) Extension: culpa lata, diligentia quam in suis, culpa
A liability between partners merely for fraud,^[2373] however, could not permanently satisfy the needs of a more and more sophisticated economy. Thus, in the course of classical law, we find a gradual extension of the scope of liability. To begin with, we have to remember that dolus was not a hard-and-fast terminus technicus, unproblemati- cally relatable to our modern concepts of fraud or intention.
Dolus (malus) must rather be seen, particularly in the context of the consensual contracts, as the reverse of bona fides. What mattered, according to the formula, was whether the defendant had complied with the precepts of good faith. That this was not the case if he had knowingly and wilfully caused damage to his colleagues is fairly obvious. But even grossly negligent behaviour can hardly be regarded as reconcilable (in any event: not necessarily as reconcilable) with the standards to be expected of someone steeped in Roman bona fides. Thus the liability of a socius must have included, qua dolus (if not originally, then at least in classical law) cases which came to be classified, at a later stage, as culpa lata. An important step towards extending the liability of socii was taken when the idea underlying the fragment of D. 16, 3, 32 was transferred from tutela and/or depositum to the contract of societas. According to Celsus, it is to be regarded as a breach of good faith if a depositary is more diligent with regard to his own property than with regard to what has been deposited with him. Thus he has to be responsible not only for dolus but for diligentia quam in suis. The same considerations, obviously, commend themselves in the case of partnership. Hence the following statement of Gaius:
"Socius socio etiam culpae nomine tenetur... culpa autem non ad exactissimam diligentiam dirigenda est: sufficit etenim talem diligentiam communibus rebus adhibere, qualem suis rebus adhibere solet, quia qui parum diligentem sibi socium adquirit, de se queri debet. "^[2374] ^{^[2375]}
This is diligentia quam in suis. But, interestingly, Gaius no longer even argues why a socius should also be liable if he has not exercised the care that he is used to exercising in his own matters (sc: and not only for dolus stricto sensu); his main concern appears to be the proper limitation of the socius' liability: he should be liable only for diligentia quam in suis (and not for culpa in abstracto).
If somebody enters into a partnership with a careless person, he has to blame himself if his new partner does not rise above what may realistically be expected of him. This is a remarkable sign of proactive thinking,^[2376] for a further extension of the liability appears to have been in the air. Ulpianus, for instance, some 60 years later, seems to have been prepared to hold a partner liable, under the actio pro socio, where he had negligently damaged goods held in common by the partners ("... quod si rei communi socius nocuit, magis admittit culpam quoque venire").^[2377] A liability not only for dolus but also for culpa in abstracto can easily be rationalized in terms of considerations of utility.^[2378] Societas, after all, falls under the negotia utriusque gratia: it has been entered into for the benefit of all the partners and not merely for that of either the plaintiff or defendant in the actio pro socio at issue. Hence the generalizing statement in Ulp. D. 13, 6, 5, 2 i.f: "... sed ubi utriusque utilitas vertitur, ut in empto, ut in locato, ut in dote, ut in pignore, ut in societate, et dolus et culpa praestatur." It is impossible to determine whether this correctly reflects the position in (late) classical law or whether we are dealing with an interpolation of post-classical origin. But there was certainly a tendency towards a more generalized liability for culpa.^[2379] (d) Custodia and imperitia
If the picture presented so far appears to be complex and multifaceted (and it must be emphasized that nearly everything—apart from the initial dolus liability — has been and still is the subject of scholarly dispute), we have yet to add a further dimension to the problem of a partner's standard of liability. For, under certain circumstances, a socius was liable even for custodia and imperitia.
"... si in coeunda societate, inquit [Celsus], artem operamve pollicitus est alter, veluti cum pecus in commune pascendum aut agrum politori damus in commune quaerendis fructibus, nimirum ibi etiam custodia praestanda est: pretium enim operae artis est velamentum."*^[2380]
It is true that this text, as it has come down to us, contains the word "culpa" in the place of "custodia".
But this appears to be interpolated. Justinian, as we have seen,^[2381] generally attempted to dispose of the objective classical liability for custodia and substituted culpa for it. Apart from that, the "quod si" at the beginning of the next sentence ("quod si rei communi socius nocuit, magis admittit culpam quoque venire") would not make sense if both sentences had been dealing with liability for culpa.^[2382] The source of inspiration for this strict type of liability seems to have been the rules developed with regard to locatio conductio operis. For it can happen (as, indeed, it does in the examples mentioned in D. 17, 2. 52, 2) that the same opera which may be promised by way of locatio conductio became the object of a societas. The work, under these circumstances, is equivalent to a contribution of any other kind towards the common purpose.^[2383] Unlike under a contract of work, it is not done with a view to earning a merces. But societas and locatio conductio operis did not differ as to the nature of the work to be accomplished; and thus it is not unreasonable to expect of a socius in the role of a contractor what a contractor proper owes, too. The latter, as we have seen, was taken to have guaranteed that he was competent to perform the job that he had undertaken; and he was liable for custodia with regard to any objects handed over to him.^[2384] This applied, for instance, if a herd of animals was entrusted to a cattle- breeder or arable lands to a politor for the raising of crops; and if that was appropriate where the breeding or cultivation was a performance for which a remuneration had been promised, it was equally apposite where it constituted the contribution to a societas. It is, incidentally, highly significant that it is one and the same author, namely Celsus, whom we see discussing very similar examples in both D. 19, 2, 9, 5 and in D. 17, 2, 52, 3.^[2385] 8.}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Liability between the partners

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