We have already given an account of emphyteusis in the note to Bk. ii. Tit. 5. 6.

The law would naturally contemplate the contract under which the emphyteuta entered as a locatio conductio; but the dominus seemed to have parted with so much of his interest, that it appeared doubtful whether it ought not rather to be considered as a sale. Zeno enacted that it should be regarded as a separate form of contract.

4. Item quæritur, si cum aurifice Titio convenerit, ut is ex auro suo certi ponderis certæque formæ anulos ei faceret et acciperet verbi gratia aureos decem, utrum emptio et venditio contrahi videatur, an locatio et conductio? et Cassius ait, materiæ quidem emptionem venditionemque contrahi, operæ autem locationem et conductionem. Sed placuit, tantum emptionem et venditionem contrahi. Quodsi suum aurum Titius dederit, mercede pro opera constituta, dubium non est, quin locatio et conductio sit.

GAI.

5. Conductor omnia secundum legem conductionis facere debet et, si quid in lege prætermissum fuerit, id ex bono et æquo debet præstare. Qui pro usu aut vestimentorum aut argenti aut jumenti mercedem aut dedit aut promisit, ab eo custodia talis desideratur, qualem diligentissimus paterfamilias suis rebus adhibet. Quam si præstiterit et aliquo casu rem amiserit, de restituenda ea non tenebitur.

4. It is also questioned whether, when Titius has agreed with a goldsmith to make him rings of a certain weight and pattern, out of gold belonging to the goldsmith himself, the goldsmith to receive, for example, ten aurei, the contract is one of sale or letting on hire. Cassius says that there is a sale of the material, and a letting on hire of the goldsmith's work; but it has been decided that there is only a contract of sale. But if Titius gives the gold, and a sum is agreed on to be paid for the work, there is no doubt that the contract is then one of letting to hire. iii. 147.

5. The hirer ought to do everything according to the terms of his hiring, and if anything has been omitted in these terms, he ought to supply it according to the rules of equity. He who has given or promised a sum for the hire of clothes or silver, or a beast of burden, is required to bestow as great care on the safe custody of the thing he hires as the most careful paterfamilias bestows on the custody of his own property. If he bestows such care, but loses the thing through some accident, he is not bound to restore it.

D. xix. 1. 25. 3. 7.

The distinction here between the cases of a sale and of a letting on hire is to be noticed. Here the risk of fortuitous loss is with

the owner, i.e. the locator, in accordance with the general rule; but in sale the risk of fortuitous loss is not with the owner, the seller, but with the buyer.

6. Mortuo conductore intra tempora conductionis, heres ejus eodem jure in conductionem succedit.

6. If the hirer dies during the time of his hiring, his heir succeeds him in the hiring on the same terms.

C. iv. 65. 10.

And the same may be said of the locator; but in a locatio conductio of personal services or of a thing to be done by a special person, the death of the person who let out his services terminated the contract.

The contract, in the case of a locatio conductio rei, was also terminated by the sale of the thing hired. The buyer was not considered bound by the contract. Emptori fundi non necesse est stare colonum cui prior dominus locavit; nisi ea lege emit (C. iv. 65. 9); but the conductor could demand compensation from the locator. The contract ceasing if the thing was sold serves clearly to distinguish the interest of the conductor from a usufruct. The conductor had no real interest in the thing, but only a personal right against the locator, while the usufructuary had a servitude, i.e. a real right, in the thing. The whole of the thing over which the usufruct extended could not be sold, because part of it, namely the usufruct, had already been parted with.

The contract was also terminated if the rent was two years in arrear (D. xix. 2. 54. 1); if the conductor grossly misused the thing hired (C. iv. 65. 3); if the locator had indispensable need of it, si propriis usibus dominus eam necessariam esse probaverit (C. ib.); or if the conductor was prevented from getting benefit from it, as by armed force. (D. xix. 2. 13. 7.)

TIT. XXV. DE SOCIETATE.

Societatem coire solemus aut totorum bonorum, quam Græci specialiter KOLOTрaţiav appellant, aut unius alicujus negotiationis, veluti mancipiorum emendorum vendendorumque, aut olei, vini, frumenti emendi vendendique.

A partnership is formed either of the whole goods of the contracting parties, to which the Greeks give the special name of Koopaέia, or for some particular business, as the sale or purchase of slaves, oil, wine, or wheat.

GAI. iii. 148.

The text, borrowed from Gaius (iii. 148), gives the general division of partnerships into two classes according as they are universal or particular. In the Digest we have a further division by distinguishing five kinds of partnership. (D. xvii. 2. 5.)

1. Societas universorum bonorum, in which everything belonging or accruing in any way to each partner is held in common. (D. xvii. 2. 1. 1.) Here the property belonging to each partner

at the time when the partnership was formed became the property of all, without delivery. (D. xvii. 2. 1. 1.)

2. Societas universorum quæ ex quæstu veniunt, i.e. of all things which are gained or acquired by each partner through business transactions; but not of things belonging or accruing in other ways, such as inheritances or legacies.

3. Societas negotiationis alicujus, formed to carry on a particular business.

4. Societas vectigalis, formed to carry on the farming of public revenues—a mere branch of the last, but subject to special rules. (D. xvii. 2. 5.)

5. Societas rei unius, when one or more particular things are held in common.

1. Et quidem si nihil de partibus lucri et damni nominatim convenerit, æquales scilicet partes et in lucro et in damno spectantur. Quodsi expressæ fuerint partes, hæ servari debent: nec enim umquam dubium fuit, quin valeat conventio, si duo inter se pacti sunt, ut ad unum quidem duæ partes et damni et lucri pertineant, ad alium tertia.

1. If the proportions of gain and loss have not been specially agreed on, the shares of gain and loss are looked on as equal. But if they have been agreed on, effect ought to be given to the agreement; for, indeed, the validity of the agreement has never been questioned, if two partners have agreed that two-thirds of the gain and loss should belong to the one, and onethird to the other.

GAI. iii. 150.

Equales partes, i.e. one equal share of the whole, not propor

tional to what each contributes.

2. De illa sane conventione quæsitum est, si Titius et Seius inter se pacti sunt, ut ad Titium lucri duæ partes pertineant, damni tertia, ad Seium duæ partes damni, lucri tertia, an rata debet haberi conventio ? Quintus Mucius contra naturam societatis talem pactionem esse existimavit et ob id non esse ratam habendam. Servius Sulpicius, cujus sententia prævaluit, contra sentit, quia sæpe quorundam ita pretiosa est opera in societate, ut eos justum sit meliore condicione in societatem admitti: nam et ita coiri posse societatem non dubitatur, ut alter pecuniam conferat, alter non conferat et tamen lucrum inter eos commune sit, quia sæpe opera alicujus pro pecunia valet. Et adeo contra Quinti Mucii sententiam obtinuit, ut illud quoque constiterit, posse convenire, ut quis lucri partem ferat, damno non teneatur, quod et ipsum Servius convenienter sibi existimavit: quod tamen ita intellegi oportet, ut, si in aliqua re lucrum, in aliqua damnum allatum sit, com

2. But doubts have been raised as to the following agreement. Supposing Titius and Seius have agreed that twothirds of the profit and one-third of the loss shall belong to Titius, and twothirds of the loss and one-third of the profit shall belong to Seius, ought such an agreement to be valid? Quintus Mucius considered it as contrary to the nature of partnership, and as therefore not to be held valid. Servius Sulpicius, on the contrary, whose opinion has prevailed, thought it valid, as frequently the services of particular partners are so valuable that it is just to give them advantages in the terms of the partnership. There can be no doubt that a partnership may be formed on the terms of one partner contributing money, and of the other not contributing, while yet the profit is common to both, as often a man's labour is equivalent to money. An opinion, therefore, so directly contrary to that of Quintus Mucius has prevailed, that it is admitted that by special agreement a partner may share the profit, and yet not be responsible for the loss,

pensatione facta, solum quod superest, intellegatur lucri esse.

as Servius consistently held. This must be understood as meaning that, if there is profit on one transaction and loss on another, the accounts must be balanced, and only the net profit be reckoned as profit.

GAI. iii. 149; D. xvii. 2. 30.

A partnership in which one partner was totally excluded from gain was void. The jurists called it a leonina societas, as the other partner would have the lion's share. (D. xvii. 2. 29. 1.)

With respect to the power of one partner to bind another, a point not touched on by Justinian, we may observe that as between the partners themselves, any one who acted in behalf of the rest was their mandatary, and, beyond acts of pure administration of their affairs, could only be empowered to act by their express desire (mandatum). If he was so empowered, he had an action against them for all expenses and losses he incurred, and was bound to account to them for the profits. With regard to third persons, as the Roman law, strictly speaking, took no notice of any one who was not a party to the particular contract, they could not sue, or be sued by, the remaining partners, who were not parties. The prætor, however, allowed the remaining partners to sue if they had no other means of protecting their interests (D. xiv. 3. 1, 2); and the stranger to sue, if the partners had benefited by the contract. (D. xvii. 2. 82.)

3. Illud expeditum est, si in una causa pars fuerit expressa, veluti in solo lucro vel in solo damno, in altera vero omissa: in eo quoque, quod prætermissum est, eandem partem servari.

3. Of course if the share on one side only is expressly agreed on, as on the side of profit only, or on that of loss only, the same share is to be considered as held on the side of which no mention is made.

GAI. iii. 150.

4. Manet autem societas eo usque, donec in eodem consensu perseveraverint: at cum aliquis renuntiaverit societati, solvitur societas. Sed plane si quis callide in hoc renuntiaverit societati, ut obveniens aliquod lucrum solus habeat, veluti si totorum bonorum socius, cum ab aliquo heres esset relictus, in hoc renuntiaverit societati, ut hereditatem solus lucrifaceret, cogitur hoc lucrum communicare: si quid vero aliud lucrifaceret, quod non captaverit, ad ipsum solum pertinet ei vero, cui renuntiatum est, quidquid omnino post renuntiatam societatem adquiritur, soli conceditur.

4. A partnership continues as long as the partners continue to agree that it shall do so; but if any one partner renounces the partnership, then the partnership is dissolved. If, however, he makes this renunciation with a secret motive, such as that he may alone enjoy a gain which he knows awaits him; as, for instance, if an inheritance has been left to a member of a partnership embracing all the property of each of the partners, and he renounces the partnership to enjoy alone the advantage of an inheritance left him; he is compelled to share this source of gain with his partners. But if he gains anything without such previous design, he alone profits by it: while the partner who has received his renunciation alone takes all that is acquired after the renunciation of the partnership has been made. GAI. iii. 151.

The contract of partnership may have different modifications. It may be made during or from a certain time or conditionally. (D. xvii. 2. 1.) But there can be no partnership to last for ever, as no one can be forced to remain a partner against his will. (D. xvii. 2. 70.) Any partner may renounce, i.e. withdraw, when he pleases, but if the time during which the partnership is to last has been fixed, he cannot escape liability during that period, and he must not so retire as to force on a disadvantageous sale of partnership property. (D. xvii. 2. 65. 5 and 6.)

The remaining paragraphs of this Title treat of the modes in which the partnership may be dissolved. Ulpian, enumerating the causes of the dissolution of partnerships, says, 'Societas solvitur ex personis, ex rebus, ex voluntate, ex actione.' (D. xvii. 2. 63. 10.) Ex personis, when one of the parties is dead or incapacitated, as by confiscation (publicatio) of goods, when the treasury succeeds to his persona (paragr. 7); ex rebus, when the purpose of the partnership is effected, or its subject-matter has ceased to exist, as in the case of cession of goods (paragr. 8); ex voluntate, when one partner wishes to withdraw; and ex actione, when one partner compels a dissolution of partnership by action. We may add ex tempore, if the partnership was only temporary.

5. Solvitur adhuc societas etiam morte socii, quia qui societatem contrahit, certam personam sibi elegit. Sed et si consensu plurium societas coita sit, morte unius socii solvitur, etsi plures supersint, nisi si in coeunda societate aliter convenerit.

GAI. iii. 152;

5. A partnership is also dissolved by the death of a partner, as he who enters into a partnership chooses a particular person to whom he binds himself. And even if there are more than two partners, the death of any one dissolves the partnership although more than one survive, unless on the formation of the partnership it has been otherwise agreed. D. xvii. 2. 65. 9.

Although, in forming the partnership, the parties might agree that, if any one ceased to be a partner, the rest should still continue partners, or, to speak more accurately, should immediately and without fresh agreement form a new partnership, yet no one could validly make it part of the contract that his heirs should, on his death, be admitted partners (D. xvii. 2. 59), the contract being personal. There was an exception made to this rule in the case of societates vectigales. (D. xvii. 2. 59.)

6. Item si alicujus rei contracta societas sit et finis negotio impositus est, finitur societas.

D. xvii.

7. Publicatione quoque distrahi societatem manifestum est, scilicet si universa bona socii publicentur: nam cum in ejus locum alius succedit, pro mortuo habetur.

6. If the partnership has been formed for a single transaction, when the transaction is completed, the partnership is ended. 2. 65. 10.

7. It is evident, also, that a partnership is dissolved by confiscation, as if all the property of a partner is confiscated; for this partner, as another person succeeds into his place, is considered dead.

D. xvii. 2. 65. 12.