Societas

The third contract in the category of contractus consensu was the contract of partnership (societas), which was concluded when two or more persons had reached an agreement to pursue a common purpose with the use of common resources.

The contract originated in the ius gentium^{^[821]} and was therefore based on the principle of bona fides, by reference to which the partners' duties against each other were defined.^{^[822]}

The contract of partnership was formed by a simple agreement (consensus or affectio societatis)^{^[823]} among the parties that like all consensual contracts could be reached in any manner (expressly or tacitly or through a messenger).^{^[824]} The common goal pursued by the partnership could not be unlawful, immoral or in conflict with bona fides and had to be for the mutual advantage of the parties.^{^[825]} It was required, further, that each partner (socius) should make a contribution in some form or other, such as money, goods, services, rights or claims against third persons. It was not necessary, however, that the contribution of the partners to the common business be equal or similar in nature.^{^[826]}

Unless otherwise agreed, each partner was entitled to an equal share of the profits or losses. The partners were free, however, to agree on a different allocation of profits and the contract could even exempt a partner from all losses, but not from all profits.^{^{lang=EN-US style='font-size: 9.5pt;font-family:"Times New Roman",serif;color:black'>[827]}}

Depending on the particular goal the partners aimed at achieving, a partnership contract could assume one of several forms.

The earliest form was the societas omnium bonorum, in which all partners' current and future property became joint property or part of a common pool.^{^[828]} The second and probably most common form of partnership was the societas alicuius negotiationis, in terms of which the purpose of the partners was to engage in one particular kind of business venture (e.g. the transportation of commodities).^{^[829]} Similar to this arrangement was the societas unius rei, concerned with the exploitation of a single joint asset (e.g. a racehorse) for common benefit.^{^[830]} Finally reference may be made to the societas omnium bonorum quae ex quaestu veniunt, in which everything the partners acquired from business or professional activities was brought into the partnership.^{^[831]}

The societas, even in its classical form, had no legal personality.^{^[832]} This meant the partnership could not be the owner or possessor of property, debtor or creditor and neither could it litigate, buy or sell, hire or let and such like. The socii were liable for the debts of the partnership while claims of the societas against third parties were claims of the socii. Furthermore, a partner had no implicit authority to bind his fellow partners even in matters closely connected with the business of the partnership. Thus, when a partner entered into a legal act with a third party he alone was affected by such act and thus became liable to or acquired rights against the third party. Normally, however, socii were both entitled and bound to bring their dealings with third parties into the partnership account. Thus, when a partner's share in the profits or losses of the partnership was calculated, the rights and liabilities arising from all his individual transactions were taken into consideration.^{^[833]}

With regard to the relationship between the partners, attention must be accorded to the fact that societas was a synallagmatic contract giving rise to reciprocal rights and duties.

The basis of this relationship, which was viewed as an especially personal one (hence a parallel was sometimes drawn between partners and brothers), was the principle of good faith (bona fitdes)^{^[834]} Each partner was required to contribute his share as agreed; share profits and losses equally or as stipulated in the contract; and indemnify the other partners pro rata against all expenses or liabilities incurred on behalf of the partnership. In the law of Justinian each partner was liable for malicious intent or fraud (dolus) and negligence (culpa levis in concreto) in the sense of failing to show, with regard to the activities of the partnership, the same degree of care and diligence that he would show in his own affairs (diligentia quam suis rebus').^{^[835]} If a partner suffered loss or damage as a result of another partner's fraudulent or negligent action, he could institute the actio pro socio against him for damages. The same action could be launched by one or more of the partners against a partner who failed to comply with his obligations as prescribed in the partnership agreement.^{^[836]} In such case, the action pursued damages as well as the adjustment of benefits and liabilities arising from the partnership's activities. A partner condemned in the actio pro socio underwent loss of honour (infamia), since he was regarded as having betrayed the trust placed upon him.^{^[837]}

A partnership could be dissolved in a variety of ways: by a unilateral express declaration to this effect by one of the partners (ex voluntate)^{^[838]}; if the period agreed upon expired; if the goal for which it was formed had been accomplished or became impossible; or if the communal property was lost or an essential asset passed out of commercium. Moreover, since the relationship between the partners was highly personal, the partnership was dissolved by the death of one of the parties.^{^[839]}^{^[840]} The capitis deminutio²¹⁰ or insolvency of a partner or the forfeiture of a partner's entire estate also entailed the dissolution of the partnership.^{^[841]}

After the termination of the partnership the partners could institute the actio pro socio against one another or, where applicable, the actio communi dividundo for the liquidation and division of the common property.^{^[842]}

4.7.4

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Societas

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