The "community of collective hand"

Many of the essentials of the societas of the ius commune live on in the so-called civil (or BGB-) partnership of modern German law,^[2416] most notably the fact that it finds its basis in a consensual, express or implied, obligatory contract which can accommodate the pursuit of any kind of lawful purpose by two or more (natural or juristic) persons.^[2417] There is, however, one most interesting and characteristic new element which was grafted on to this partnership contract in the course of the traveaux preparatories of the German Civil Code.

The partners of a personal business association form, as a rule, a community of collective hand (Gesamthandsgemeinschaft).^[2418] The contributions of the partners and the objects acquired for the partnership in the course of the management of the affairs of the partnership become the common property of the partners.^[2419] But this partnership property is not held in (fractionally shared) joint ownership.^[2420] ^{^[2421] ^[2422] It forms a separate group of assets distinct from the private estate of the partners, ²⁷ and the rights attached to these assets can be exercised collectively only by the whole group of partners. An individual partner may not dispose of his share in the partnership property or in the individual objects belonging thereto; he is also not entitled to demand division/²⁸ The property regime therefore gives the partnership the appearance, particularly in relation to third parties, of a self-sufficient body, as a legal entity in its own right. It has to be remembered, though, that the partnership does not possess independent legal personality (one of the characteristics of the Roman societas that has been maintained throughout the centuries), and that it is therefore not "the" partnership as such, but the individual partners (in their collectivity) who own the social property. The adoption of these principles into modern German law forms part of what Huebner enthusiastically celebrated as a "triumph great almost beyond expectation",^[2423] vouchsafed within the law of associations, for Germanic legal science.^[2424] We are dealing here with a form of group ownership that goes back to the communities of collective hand in medieval Germanic customary law,^[2425] which in turn find their origin in the family associations formed after the death of the housefather.
It seems to have been a widespread practice that the sons, in order to maintain the unity of the family estate, continued to hold the inherited estate in a common household. These households (and similar forms of personal unions) did not exist as corporeal entities, independent of the individual members. That was evident, most notably, in the fact that they could engage in legal transactions only through the collective action of all associates or commoners. Originally, they had to clasp hands and then, as with collective hand ("cum commumcatis manibus consimilique consensu", "unanimi consensu et manu composita"), perfect the juristic act. cf. §§736, 738.

Whether this type of property regime provides a particularly happy solution for the modern law of partnership may well be doubted; business organizations, run in the form of a civil company, appear to require for their effective management the status of fully fledged separate legal entities.^[2426] Not only have reform proposals been made along these lines,^[2427] but even de lege lata a variety of authors have attributed legal personality to the civil partnership.^[2428]
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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 "community of collective hand"

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