8. Item si quis ex sociis, mole debiti prægravatus, bonis suis cesserit et ideo propter publica aut propter privata debita substantia ejus veneat, solvitur societas. Sed hoc casu si adhuc consentiant in societatem, nova videtur incipere societas.

8. So, too, if one of the partners, borne down by the weight of his debts, makes a cession of his goods, and his property is therefore sold to satisfy his debts, public or private, the partnership is dissolved. But in this case, if the parties agree still to continue partners, a new partnership would seem to be begun.

GAI. iii. 153, 154.

The persona of an individual might, we know, be destroyed even in his lifetime and passed on to a successor, as, for instance, by the maxima and media capitis deminutio, and by the publicatio or confiscation of all the goods of the deminutus, which was one of their consequences, so that the fiscus was his successor (D. xlviii. 20. 1), or by the sale of his property in the mass, either for the profit of the treasury in the case of criminals (sectio bonorum, the old form of publicatio), or of private individuals in certain cases of insolvency (emptio bonorum), or when he had made a cessio bonorum under the lex Julia. (See Tit. 12 of this Book.) In the time of Justinian sales in one mass of a whole patrimony were obsolete, and therefore confiscation (publicatio), when the fiscus was the successor, and cessio bonorum are alone mentioned here; the latter, however, as taking away the fortune of the partner, and not as destroying his persona.

Of course the partnership might be immediately renewed with the partner whose goods had been confiscated or ceded to creditors, if the other partners were willing to enter into what was really a new partnership, as it might if the partner had lost his civitas by the media deminutio; for partnership, being a contract of the jus gentium, could be formed with a stranger. The minima capitis deminutio did not cause a dissolution of the partnership, and a person arrogated or emancipated still remained a partner. (D. xvii. 2. 65. 11; GAI. iii. 154.) (POSTE's Gaius, 348.) The arrogator, however, did not become a partner, as a new partner could not be introduced without the consent of the others. Societas, quemadmodum ad heredes socii nontransit, ita nec ad arrogatorem,ne alioquin invitus quis socius efficiatur cui non vult. (D. xvii. 2. 65. 11.)

9. Socius socio utrum eo nomine tantum teneatur pro socio actione, si quid dolo commiserit, sicut is, qui deponi apud se passus est, an etiam culpæ, id est desidiæ atque neglegentiæ nomine, quæsitum est: prævaluit tamen, etiam culpæ nomine teneri eum. Culpa autem non ad exactissimam diligentiam dirigenda est sufficit enim talem diligentiam in communibus rebus adhibere socium, qualem suis rebus adhibere solet. Nam qui parum diligentem socium sibi adsumit de

9. It has been questioned whether one partner can only be made answerable to another by the action pro socio, if he has been guilty of malicious wrong, as a depositary is, or whether also for a fault, that is, for carelessness and negligence. The opinion has prevailed that he is also answerable for a fault, but the fault is not to be measured by a standard of the most perfect carefulness possible. It is sufficient that he should be as careful of things belonging to the partnership as he is of his own property. For he

se queri, hoc est suæ id impruden- who accepts as partner a person of tiæ imputare debet. careless habits, has only himself to blame, that is, must set it down to the score of his own imprudence.

D. xvii. 2. 72.

Societas jus quodammodo fraternitatis in se habet. (D. xvii. 2. 63.) Hence, while each partner had, if sued, an allowance (termed the beneficium competentia) made for him, and was only held responsible to the extent of his means, yet, on the other hand, if he was condemned in an action pro socio, he was marked with infamy. (D. xvii. 2. 63. pr. 1-3; D. iii. 2. 1.)

The action pro socio was the remedy in almost every case that could arise between partners. It was employed, for instance, to enforce accounts, to get compensation for losses, and to dissolve the partnership. If any partner was guilty of a delict against his partners, such as theft, he would be made amenable by such actions as the actio furti, vi bonorum raptorum, or legis Aquilia, of which we read in the Fourth Book. There was also another action incident to partnerships, called the actio communi dividundo, which was brought to procure a partition, by the judex, of the common property. (See Introd. sec. 103.)

TIT. XXVI. DE MANDATO.

Mandatum contrahitur quinque modis, sive sua tantum gratia aliquis tibi mandet, sive sua et tua, sive aliena tantum, sive sua et aliena, sive tua et aliena. At si tua tantum gratia tibi mandatum sit, supervacuum est mandatum et ob id nulla ex eo obligatio nec mandati inter vos actio nascitur.

The contract of mandate is formed in five modes; according as a mandator gives you a mandate for his benefit only, or for his benefit and for yours; or for the benefit of a third person only, or for his benefit and that of a third person, or for your benefit and that of a third person. A mandate made for your benefit only is useless, and does not produce between you any obligation or action mandati. D. xvii. 1, 2.

In the theory of Roman law one person could not represent another. The person who actually made the contract, who uttered the binding words, or went through the binding formalities, was the only legal contractor; he alone could sue and be sued. The law would not take notice that it was really in behalf of another that he made the contract.

But a friend on whom reliance could be placed might be persuaded to make the contract in his own name. Honour and friendship would then effect what the law would not compel. This friend would give up all that he gained by the contract to the person at whose request he entered into it. The promise to perform this act of friendship was given, in the old times of Roman manners, with

an appropriate formality. The person really interested took the friend by the right hand, and told him that he placed in his hand the trust he was anxious to have discharged. The trust, or commission itself, was hence called mandatum (manu datum). Plautus thus describes the ceremony (Captiv. ii. 3):

TYND. Hæc per dexteram tuam, te dextera retinens manu,
Obsecro, infidelior mihi ne fuas, quam ego sum tibi.

Tu hoc age, tu mihi herus nunc es, tu patronus, tu pater,
Tibi commendo spes opesque meas.

PH. Mandavisti satis. The execution of a mandatum was thus a discharge of an office of friendship. Originem ex officio atque amicitia trahit. (D. xvii. 1. 1. 4.) And it never lost the traces of its origin. It was always necessarily gratuitous; the mandatarius, i.e. the person charged with the mandatum, was obliged to bestow on it the care of the most diligent paterfamilias (C. iv. 35. 13), and if he failed to discharge the trust, and was condemned in an actio mandati, he was stamped with infamy. (D. iii. 2. 1.) (Introd. sec. 48.)

When the introduction of the prætorian system furnished a method by which every equitable claim could be enforced, friends who entered into such an agreement were obliged to discharge their reciprocal duties. The prætor, by the actio mandati directa given to the mandator, compelled the mandatarius to account for all he received, and to pay over the profits, and, by the actio mandati contraria given to the mandatarius, compelled the mandator (i.e. the person who requested the favour) to reimburse, with interest, the mandatarius for all expenses incurred, to indemnify him for all losses, and to free him from all obligations contracted in the execution of the mandate. It is in this sense that the contracts of mandatum may be said to be bilateral.

The prætorian law went a great step further, by allowing the mandator to bring equitable actions against, and to be sued by, the third party, with whom the mandatarius contracted. First as to actions brought by the mandator. Whatever direct actions the mandatarius would properly have brought or was liable to, the mandator was allowed to bring in the shape of actiones utiles; and if the mandator sued or intended to sue, the mandatarius could not sue. As, for instance, where the mandatarius would have brought a condictio, or an actio empti or venditi, the mandator was allowed to bring a condictio utilis, or an actio utilis empti or venditi. (D. xix. 1. 13. 25.) In the case of a special mandate, these actions were allowed, as of course; in the case of a general mandate, only when the mandator had no other way of protecting his interests, a mandate being termed special when one man charged another with the execution of one or more particular things, and general when he asked him to represent him in all his affairs. (D. xiv. 3. 2.)

Secondly as to actions brought against the mandator. There were some acts, of a solemn character, in which one citizen could,

at no time of Roman law, act for another, such as bringing any of the legis actiones, mancipation, making testaments, or the cretio or aditio of an inheritance. Nor did the civil law ever permit any one, except a son or a slave (Tit. 28), to contract for another so as to make the person for whom he contracted directly responsible or directly able to sue on the obligation. But the prætorian system gradually recognised the intervention of an agent. A cognitor, i.e. a person authorised formally to conduct a suit, was allowed to act on behalf of the plaintiff or defendant, and fully represented his principal. (See Bk. iv. Tit. 10.) The manager of a shop (institor) and the captain of a ship (exercitor) were permitted to bind their employers (Bk. iv. Tit. 7), and by an extension of the actions appropriate to these cases, i.e. by allowing a utilis actio quasi institoria (D. xvii. 1. 10. 5), the prætor made all employers liable for acts of their agents authorised by or profitable to them, and allowed actions to be brought directly against the employer without regard to the procurator or agent; and this was the mode in which the mandator was made responsible. Thus, ultimately, obligations were acquired by or against the mandator through the agent, and not for him by the agent.

1. Mandantis tantum gratia intervenit mandatum, veluti si quis tibi mandet, ut negotia ejus gereres, vel ut fundum ei emeres, vel ut pro eo sponderes.

1. A mandate is made for the benefit of the mandator only; if, for instance, any one gives you a mandate to transact his business, to buy an estate for him, or to become surety for him.

D. xvii. 1. 2. 1.

This is the usual case of a mandatum. Justinian employs here, it may be remarked, the word sponderes, although sponsores no longer existed. (See Tit. 20.)

2. Tua et mandantis, veluti si mandet tibi, ut pecuniam sub usuris crederes ei, qui in rem ipsius mutuaretur, aut si, volente te agere cum eo ex fidejussoria causa, mandet tibi, ut cum reo agas periculo mandantis, vel ut ipsius periculo stipuleris ab eo, quem tibi deleget in id, quod tibi debuerat.

2. A mandate is made for your benefit and that of the mandator; if, for instance, he gives a mandate to you to lend money at interest to a person who borrows it for the purposes of the mandator; or if, when you are about to sue him as a fidejussor, he gives you a mandate to sue the principal at his risk, or to stipulate at his risk to balance something owed by him to you, for payment from a person whom he appoints as his substitute.

D. xvii. 1. 2. 4; D. xvii. 1. 45. 7, 8.

Under the

Volente te agere cum eo ex fidejussoria causa. law anterior to Justinian, the creditor could sue either the debtor or the fidejussor, but not both. If he proposed to sue the latter, the fidejussor might give him a mandatum to sue the debtor, and then, if the creditor did so, the fidejussor would be freed from any obligation as fidejussor, but would be bound as mandator;

and thus the mandate would be for the benefit of the fidejussor, because he would be sued after the principal, and for the benefit of the creditor, because he could sue the principal first and then the surety in his quality of mandator, whereas he could not ordinarily sue both the principal and the surety, but was obliged to make his choice between them, as the litis contestatio in the action he first brought extinguished the obligation they had jointly made. This could not be of any use after Justinian had decided that the principal debtor should be sued first, and then, if there was any deficiency, the fidejussor. (See Tit. 20. 4.)

Ab eo quem tibi deleget. The debtor points out to the creditor a third person who owes the debtor a sum equal to his debt to the creditor; and asks the creditor to stipulate with this third person for payment of the amount due from the debtor. If the third person does not pay, the debtor is held responsible as mandator. The creditor thus benefits, as he has two persons to sue, and the debtor benefits, because he employs his creditor to collect a debt due to him.