The actio pro socio

The actio pro socio, as we have seen, could be brought only after termination of the societas. Conversely, the institution of such an action involved dissolution of the societas.

The actio pro socio entailed an allegation of breach of faith and it aimed at a condemnation which in turn entailed infamia.⁵⁸ It could reasonably be inferred that a person bringing to bear this type of heavy artillery no longer wished to be a socius. The actio pro socio, therefore, did not aim at enforcing the obligations of the partners to make contributions to the (existing) societas;⁶“ it was concerned, solely, with a general settlement of accounts between the two (ex-)partners involved in the litigation.⁶¹ "Quidquid ob earn rem N^m N^m A° A° dare facere oportet ex fide bona": this is, into what the judge was instructed to condemn the defendant. Thus, damages had to be taken into account which the plaintiff had suffered in the pursuit of the common purpose, or as a consequence of the defendant's fraudulent conduct.⁶² Expenses which the plaintiff had incurred for the societas were included,⁶³ as were claims for his share in the profits⁶⁴ or for compensation for contributions to the societas which the defendant had failed to render.⁶⁵ On the other hand, however, thejudge subtracted all the claims which the defendant might have, on account of the societas, against the plaintiff. In this way a kind of set-off was effected, and the defendant was condemned only into the balance.⁶⁶ This balance represented the final settlement of all claims of these two socii "ob earn rem" against each other.

In a very similar way, incidentally, the actions arising from mandatum and negotiorum gesto aimed at a general settlement of accounts; if the mandator sued the mandatarius for damages, the counterclaims of the latter were usually deducted, and he, too, was thus condemned into the balance only:

"In bonac fidei autem iudiciis libera potestas permitti videtur iudici ex bono et aequo aestimandi quantum actori restitui debeat, in quo et illud continetur ut, habita ratione

^s>' Gai.

IV, 182; Arangio-Ruiz, op. cit., note 5, pp. 185 sq.; Watson, Obligations. pp. 144 sqq.

Paul. D. 17, 2, 65 pr. makes it clear that the bringing of the action, in itself, imports renunciation of the societas.

⁶¹¹ This obligation could, of course, be made indirectly enforceable by way of a slipulatio poenae: cf. e.g. Ulp. II). 17, 2, 41 sq.; Paul. D. 17, 2, 71 pr.; on the latter text c(. Apathy, Animus navandi, pp. 237 sqq.; Kniicel. SHpulatio poenae, pp. 66 sqq.

^a Cf.. in particular. Wieacker. (19521 69 ZSS 316 sqq. Contra: Guarino. (19681 14 Labeo 158 sqq.; idem. Societd, pp. 77 sqq.. but see Kaser. (19751 41 SDHI 329 sqq.

^e Cf. infra, p. 462.

^w Ulp. D. 17. 2. 52. 15; Paul. D. 17. 2. 67. 2.

^M Paul. D. 17. 2. 65. 3.

"Ulp. D. 17. 2. 73; Paul. D. 17. 2. 74.

Cf. e.g. Wieacker. (19521 69 ZSS 326 sqq.

cius quod invicem actorem ex eadem causa praestare oporteret, in reliquum eum cum quo actum est condemnare. "^lp7

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

The actio pro socio

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