SOCI´ETAS
SOCI´ETAS partnership, is the name of a contract which arises when two or more persons agree together to conduct for their joint account any lawful business, or to share the profits and loss of any single piece of business, or even of all their havings and doings. According to agreement, the partners may contribute differently either in property or services, and may have different shares in the result. In default of agreement, the shares will be equal. As a rule the share of profits determines also the share of loss, and vice versâ; but this also is subject to agreement, only all partners must have some share in the profits. Otherwise, it would be as Cassius used to call it, with an allusion to the fable (cf. Phaedr. 1.5), a “lionlike” partnership (societas leonina), and invalid. Mucius (i. e. Q. Mucius Scaevola) held that the shares of loss must be the same as the shares of profit, but Servius (i. e. Serv. Sulpicius Rufus) held that this was not necessary, and his opinion prevailed (Dig. 17, 2, 11. 29, 30).Partnership rests on consent, and may either be formed by particular words or inferred from facts ( “et re et verbis et per nuntium coiri,” Dig. ib. 4). It ceases on the death of a partner or on his bankruptcy, or on the extinction of the thing or conclusion of the business which is the object of the partnership, or on the occurrence of the time or condition agreed to, or by notice given by any partner to the others. Civil death (capitis deminutio) in this as in other matters was originally equivalent to natural death; but the later law confined such effect to the loss of liberty or citizenship, while it preserved the theory by holding that in the case of a mere change of status (min. cap. dem.) a new partnership arose by the consent of the partners as often as the existing one was dissolved. Notice of retirement is good only if the other partners are not unfairly put to a disadvantage; otherwise the retiring partner has to compensate them, and loses his share in the profits (Gaius, 3.151-154; Dig. ib. 63, 10-65, 14 sq.).
A partner must account for all profits made by him in partnership matters, and manage the business as carefully as he does his own. He is liable for losses occasioned by his negligence, and cannot set off against them any profits produced by his exertions (Dig. ib. 25, 26). He can recover from his partners any expenses in the conduct of the business which he has properly incurred (Dig. ib. 52, 10-15; 60, 61; 67, 2; 72-74). The rights and responsibilities of partners were enforced by a special action, actio pro socio; i.e. a suit brought in the character of a partner. It could be brought not only by a partner against his fellows, but by or against a partner's heir, without the heir being himself a partner or being made so by this action (Dig. ib. 35-38; 63, 8; 65, 9). It was an action bonae fidei, i.e. it took account of equitable considerations on both sides. Hence the judge was called arbiter (Cic. pro Rose. Com. 8, 24, 25; Dig. ib. 38). Condemnation in such a suit made a man infamous (Gaius, 4.182; Dig. 3, 2, 1), but, as in other cases of close relationship, was not to be executed with such stringency as to deprive the defendant of the necessary means of subsistence ( “in id quod facere potest condemnari oportet,” Dig. 17, 2, 63 pr., 3). Other rights of action were not excluded, but their effect was limited to satisfaction in excess of what had been already won by this. It differed from the actio communi dividundo by being confined to partners in the strict sense of the term, i. e. persons to whom a community of goods has come by their own choice and purpose, and not merely by accident or legal devolution, and by its scope embracing not merely corporeal things, but debts and all kinds of mutual claims and equities (Dig. ib. 43; 10, 3, 1-3).
Partnership did not make its members into one legal body: its effects were confined to the members themselves; outsiders were in no way concerned. As a rule a partner bound himself only to third parties; and he could alienate only his own share of the partnership property (68, pr.). But some tendencies towards a different rule are found. From ad Heren. 2.13, 19, it would appear that solidarity among the partners of a bank was sometimes customary ( “id quod argentario tuleris expensum ab socio eius recte petere possis” ), and the convenience of the public is given as the cause of a similar joint liability in the case of companies of slavedealers (Dig. 21, 1, 44, 1) and of shipmasters (Dig. 14, 1, 1, 25, 1-4). And when partners appoint a captain of a ship or a manager of a shop, his action makes each and all liable to a suit at the hands of third parties. Of course a person thus singled out would have claims to be reimbursed proportionally by his partner.
As examples of partnerships may be mentioned: between neighbours to buy a field for profit (Dig. ib. 52, pr., 31); between an owner of cattle or of land and a farmer to pasture the cattle or till the land (2); trading in cloaks (sagaria negotiatio, 4); letting chambers (10); building a common wall (13); contributing horses to make up a team for sale (58, pr.); teaching grammar (71, pr.), &c. One of the Transylvanian wax tablets (A.D. 167) is a record of an agreement for partnership in a banking business (danistaria） concluded by stipulation (C. I. L. iii. p. 950; also in Bruns, Fontes). Two of Cicero's early speeches deal more or less with partnerships. That pro Roscio Comoedo relates to a slave belonging to Fannius, whom Roscius agreed to train as an actor, the slave thus trained to be employed for their common profit. The speech pro Quinctio relates to a partnership in a grazing farm.
Two special forms of partnership require distinct mention.
1. Societas universorum bonorum is often spoken of, and may very probably have originated in the position of brothers who were coheirs (cf. Dig. ib. 52, 8; 10, 2, 39, 3; 31, 89, 1), a relationship to which the name of consortium seems to have been specially applied (Dig. 27. 1, 31, 4; cf. Gel. 1.9.12). In this case all the corporeal property of each partner becomes at once without specific delivery common to both, and their future acquisitions by trade, inheritance, gift, damages for bodily hurt, &c. fell into the common stock (Dig. ib. 1-3). [p. 2.681]
2. Societates publicanorum. The companies who farmed the public taxes stood from their magnitude in a different position from ordinary partnerships; but little is known of their legal character. An heir, however, became a partner if accepted by the others, and, if not accepted, still shared in the profits and loss (Dig. ib. 59; 63, 8). Such interested persons may be meant by the term adfines (Liv. 43.116, 2; Kuntze, Curs. § 697). The shares (partes) in these companies were sold and rose and fell in price (Cic. pro Rab Post. 2, 4; in Vat. 12, 29). Some account of their proceedings is given in Cic. Ver. 2.70-77, § § 170-190.
[H.J.R]