The societas and third parties
(a) Sodi venalkiarii, actiones adiectidae qualitatis and societates publicanorum
More importantly, though, Justinian's compilation contains certain nuances—disturbing for the purist but most welcome to more pragmatic modernizers of later ages—which are irreconcilable with the original concept of a partnership law concerned, nearly exclusively, with the relations of the partners inter se (and even that only for the purposes and in the context of winding up), not with those of "the" societas against third parties.
We may mention here a special rule, attributed to Paul and relating to socii venaliciarii {firms of slavedealers): where one of them had sold a slave, the aedilitian remedies could be brought not only against the vendor but also against other members of the firm, "ne cogeretur emptor cum multis litigare... nam id genus hominum ad lucrum potius vel turpiter faciendum pronius est".[2395] Then there is the generalization of two of the actiones adiecticiae qualitatis in Pap. D. 17, 2, 82 and Lab. D. 17, 2, 84: socii are liable for each others' transactions "[si] in communem arcam pecuniae versae sunt", and if the societas had been formed at the request of one of the partners, he could be sued directly by third parties with whom his partners had contracted ("Quotiens iussu alicuius... societas coitur, directo cum illius persona agi posse...").[2396] Furthermore, there was the interesting phenomenon of the societates publicanorum (or vectigalium), financial companies in which the farmers of public revenue organized themselves.[2397] Despite their name, they were corporate entities of public law rather than private partnerships. Thus, at public auctions (where the various kinds of State revenue were let for lease) the "socii" could act collectively through their senior partner (manceps); death of one of the partners did not dissolve the firm; and it was even possible for outsiders to invest capital in the societas by purchasing share certificates which circulated on the financial markets. Of great significance also was the fact that the actio pro socio could be brought, between publicani, manente societate: a rule which Justinian extended, rather vaguely, to other societates as well: "Nonnumquam necessarium est et manente societate agi pro socio."[2398](b) Societas and agency
These are some of the more atypical features of the Roman societas, as preserved in the Corpus Juris Civilis. How far some of them possibly reach back into classical law cannot and need not be decided; to the writers of the ius commune, whose interest in Roman law was not of a purely historical nature, they provided essential cornerstones for a re-interpretation of the classical partnership contract in the light of contemporary social and economic conditions. Societas was received throughout Europe as a convenient and flexible basis for all personal business associations;[2399] but in the course of this reception it was changed, in turn, not inconsiderably.[2400] Some of its more individualistic features were abandoned for the sake of a greater coherence of the association, and the management of the societas was facilitated in that it ceased to be a merely internal association.
Especially important in this respect was the development of the idea of agency.[2401] 7 Here one could draw, for instance, on the actio institoria. Once it was recognized, first of all, that the socii could authorize either each other or one or more of their number, by way of an express or implied mandate, to carry out transactions arising within the framework of the common purpose,[2402] it was a relatively small step to regard anyone who had such an implied mandate to manage the partnership business as an institor.[2403] As a consequence, he could make his fellow-socii liable under the actio institoriae, provided he had acted only "nomine communi"[2404] and not in his own name.
But were the other partners liable in solidum or only pro rata parte, qua socii sunt? The latter appears to have been the rule, but it was almost negated by the number and importance of the exceptions.[2405] Thus, it was often argued that a creditor had a solidary action against all partners, where the partners had concluded the transaction "promiscue", where they had entrusted the management of the partnership to one of them, or to an outside factor, or where they had all undertaken the handling of the partnership, not, however, "communiter et pro indiviso", but "pro diviso, seu separatim, per partes aut regiones distributa administratione".[2406] Sometimes local custom or a piece of legislation provided differently; thus, for instance, the Dutch usus hodiernus inter mercatores limited the liability of partners pro rata parte "etiam tune, cum plures socii unum ex suo numero vel extraneum velut institorem societati praefecerunt".[2407] A French Ordonnance of 1673, on the other hand, imposed solidary liability on each partner for the debts of a commercial partnership.[2408] Interestingly, both the Dutch custom and the French law were justified as favouring commerce.[2409] Of course, merchants may be more easily inclined to embark on joint ventures if they know that their liability is limited; on the other hand, they may find it difficult to obtain credit, for potential creditors usually find a societas more attractive where all partners are liable jointly and severally.[2410]3.
More on the topic The societas and third parties:
- Performance rendered by third parties/to third parties
- The concept, sketched in the preceding chapter, of the obligatio as being a strictly personal bond between the two parties who had concluded the contract found highly characteristic expression in the fact that Roman law did not recognize contracts in favour of third parties, (direct) agency and the cession of rights.
- The nature of societas
- Termination of the societas
- Societas
- Evolution of the contract of societas
- Basic features of classical societas
- THE DUTIES OF THE PARTIES
- Societas
- Parties in civil trials
- Partnership (societas)
- Societas (Partnership)
- A contract is based on the consent of the parties thereto.
- Consensual contracts (contractus consensu) were contracts constituted by the mere agreement (consensus) of the parties.
- If a Frenchman and a Belgian meet in Hamburg, and the one sells his car to the other for 2 000 francs, the question arises as to what currency the parties have intended: 2 000 French or Belgian francs.