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 5 conceditur. Solvitur adhuc societas etiam morte socii, quia qui societatem contrahit certam personam sibi eligit. sed

et si consensu plurium societas coita sit, morte unius socii solvitur, etsi plures supersint, nisi si in coeunda societate 6 aliter convenerit. Item si alicuius rei contracta societas sit 7 et finis negotio impositus est, finitur societas. Publicatione

stated; a partner who withdrew at a time, or in a manner which would prejudice the interests of the societas, could be compelled to compensate his socii, Dig. 17. 2. 14; ib. 17. 2; and if his object was 'ut obveniens aliquod lucrum solus habeat,' and the expected gain turned out a loss, he had to bear it alone: 'Cassius scripsit eum, qui renunciaverit societati, a se quidem liberare socios suos, se autem ab illis non liberare: quod utique observandum est, si dolo malo renunciatio facta sit, veluti si, cum omnium bonorum societatem inissemus, deinde cum obvenisset uni hereditas, propter hoc renunciavit; ideoque si quidem damnum attulerit hereditas, hoc ad eum qui renunciavit pertinebit, commodum autem communicare cogetur actione pro socio' Dig. 17. 2. 65. 3. So too if one of two partners renounced while the other was away, the societas was held to be subsisting as regards the duties, but not the rights of the former until the other had received notice of the withdrawal, ib. 4.

§ 5. An agreement that one's heir should succeed one as partner (except in societas vectigalis) was void: 'adeo morte socii solvitur societas, ut nec ab initio pacisci possimus ut heres etiam succedat societati' Dig. 17. 2. 59. pr., ib. 35; but the heir, though not a partner, was bound to complete all business commenced by the deceased, being herein answerable for culpa lata only, Dig. ib. 35. 36. 40. The death of one socius dissolved the contractual relation even between the rest, unless it had been otherwise agreed at the outset, ib. 65. 9; but in no case had it any operation until the other partners had heard of the decease, and transactions entered into by them between the death and notice of it were transactions of the firm, ib. 65. 10.

The two higher kinds of capitis deminutio had the same effect on societas as death: 'dicitur et capitis deminutione solvi societatem, quia civili ratione capitis deminutio morti aequiparari dicitur: sed si adhuc consentiant in societatem, nova videtur incipere societas' Gaius iii. 153, 'societas quemadmodum ad heredes socii non transit, ita nec ad adrogatorem, ne alioquin invitus quis socius efficiatur cui non velit ipse autem adrogatus socius permanet, nam etsi filiusfamilias emancipatus fuerit, permanebit socius' Dig. 17. 2. 65. 11.

§ 6. So too a societas was dissolved by the object for which it was formed proving unattainable, Dig. ib. 58. pr.

§ 7. A forfeiture (publicatio) might be partial only: 'de vi privata

quoque distrahi societatem manifestum est, scilicet si universa bona socii publicentur : nam cum in eius locum alius succedit, pro mortuo habetur. Item si quis ex sociis mole debiti prae- 8 gravatus bonis suis cesserit et ideo propter publica aut propter privata debita substantia eius veneat, solvitur societas. sed hoc casu si adhuc consentiant in societatem, nova videtur incipere societas. Socius socio utrum eo nomine tantum 9 teneatur pro socio actione, si quid dolo commiserit, sicut is qui deponi apud se passus est, an etiam culpae, id est desidiae atque neglegentiae nomine, quaesitum est: praevaluit tamen etiam culpae nomine teneri eum. culpa autem non ad exactissimam diligentiam dirigenda est: sufficit enim talem diligentiam in communibus rebus adhibere socium, qualem

damnati pars tertia bonorum ex lege Iulia publicatur' Dig. 48. 7. I. pr.; when total (the only case in which it extinguished societas) it did so only by producing one of the two higher kinds of capitis deminutio, and so is not a distinct mode of termination: 'damnatione bona publicantur cum aut vita adimitur aut civitas, aut servilis condicio irrogatur' Dig. 48. 20. 1. The 'alius' who succeeds 'universally' is the fiscus, Dig. 46. 1. 71. pr.

§ 8. For cessio bonorum see p. 377 supr. Societas could be dissolved, besides the modes mentioned in the text, (1) by lapse of the time for which it was originally formed, Dig. 17. 2. 1. pr.; ib. 65. 6. Where persons had become partners for a definite term neither could withdraw during it except on a reasonable ground, Dig. ib. 14-16, in the absence of which it was open to the other to treat the partnership as still subsisting, ib. 65. 6; (2) By division, either voluntary and extrajudicial, or enforced through action by one of the socii: for the form of this see

next note.

§ 9. The rights and duties of partners inter se are mainly as follow. Each must contribute the stipulated quota of capital or labour; inability arising from no fault of his own, while exempting him from this duty, at the same time disabled him from enforcing it against the rest, Dig. 17. 2. 58. pr. and 1. In determining what faults were imputable, the standard of diligentia, as is said in the text, was merely that qualem in suis rebus, Exc. VI inf.; the reason assigned for this by Justinian being the same as that which is given in the case of depositum in Tit. 14. 3 supr. Between co-heirs, on the other hand, a higher case was required, 'quoniam cum coherede non contrahimus, sed incidimus in eum' Dig. 10. 2. 25. 16. If, however, after undertaking the conduct of any particular piece of partnership business, he left it to a subordinate, he was unconditionally answerable for the latter's shortcomings, Dig. 17. 2. 23; and of such transactions he must keep accounts and submit them to the others, ib. 58. pr. and 1. Whatever he acquires for the societas, or by its means, he is bound 'communicare,' i.e. to throw into the common fund, or to give

F f

suis rebus adhibere solet. nam qui parum diligentem socium sibi adsumit, de se queri debet.

his socii their fair share, ib. 67. pr.; conversely he can claim to be indemnified for all personal losses and expenses incurred in partnership affairs, ib. 38. I; 52. 4, and in societas omnium bonorum to have all his debts, except those incurred ex delicto (see p. 429) discharged from the common property. Losses arising from the insolvency of one partner must be divided among all according to the principles stated in §§ 1-3 supr. and notes; Dig. 17. 2. 63. 5; ib. 67. pr.

The remedy by which partners enforced these duties against one another was the actio pro socio, condemnation in which entailed infamia, Bk. iv. 16. 22 inf.; but the defendant could claim beneficium competentiae against the rest, i. e. they were not entitled to take all his property in satisfaction of their claims, but must leave him enough to supply the bare necessities of life, Book iv. 6. 38 inf., though Dig. 42. I. 16 (perhaps incorrectly) limits the beneficium to societas omnium bonorum. Division of the joint property could be compelled by the actio communi dividundo, Bk. iv. 6. 20; ib. 28; iv. 17. 5 inf.

The question of the rights of partners against, and their duties towards, third persons, is a different one. If all the partners together enter into a contract with some one else, they are entitled and bound in relation to him in the ratio of their shares in the lucrum and damnum: 'si tamen plures per se navem exerceant, pro portionibus exercitionis conveniuntur, neque invicem sui magistri videntur' Dig. 14. 1. 4. pr., ‘quamvis actio ex empto cum singulis sit per portione, qua socii fuerunt' Dig. 21. 1. 44. I. By special agreement such contract may produce an active or passive correal obligation in favour of or binding the partners, and where they are bankers such an obligation results ipso iure from all strictly banking transactions entered into by any of them: 'si plures sint qui eandem actionem habent, unius loco habentur: utputa plures sunt rei stipulandi vel plures argentarii, quorum nomina simul facta sunt; unius loco numerabuntur, quia unum debitum est' Dig. 2. 14. 9. pr.; ib. 25. pr.; ib. 27. But if the contract is made by one or some only of the partners, the question arises how far they confer rights and impose obligations on the rest. If the transaction is clearly a partnership transaction, the latter can sue upon it only as assignees, even though it was entered into by their own express instructions, though they are entitled to a cessio of the right of action, which, if necessary, they can compel by judicial process.

As regards their liabilities, it should be carefully observed that the partnership is never conceived as a fictitious person, capable in itself of having rights and owing duties, as distinct from the partners; the latter cannot claim that business creditors, in the event of the firm becoming insolvent, shall limit their demands to the partnership assets, though they can insist on the latter being proceeded against and exhausted first, Dig. 17. 2. 65. 14. Three cases, in which the contract is not made by all the partners collectively, need to be distinguished:

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

(a) If the partner who actually makes the contract was instructed to do so by the rest—i.e. is their agent-they are each liable in solidum : 'sed si plures exerceant, unum autem de numero suo magistrum fecerint, huius nomine in solidum poterunt conveniri;' nor could they claim the beneficium divisionis, 'ne in plures adversarios distringatur qui cum uno contraxerit ;' one who paid of course had regressus, Dig. 14. 3. 13. 2; ib. 14.

(b) If he is not their express agent for the purpose, the actually contracting partner alone incurs liability, even though the transaction is entered into on behalf of the firm, unless (1) the rest subsequently ratify it, whereby they become as liable as if it had been authorized by them from the first, and (2) except and so far as the firm has been benefited by the contract: 'iure societatis per socium aere alieno socius non obligatur, nisi in communem arcam pecuniae versae sunt' Dig. 17. 2. 82. Thus in Roman law socii have no implied authority to bind one another even upon transactions which form their ordinary business.

(c) If he makes the contract in his own name, the rest incur no liabilities even though it results in a benefit to them.

Tit. XXVI. The contract of mandatum produces effects of two different kinds; first, an obligation between the principal (mandator, dominus) and the agent (mandatarius, procurator; the first term is not classical), which is discussed fully in this Title; and second, the relation of representation; this subject, which regards the rights and duties that arise immediately for the principal from the contracts made by his agent on his behalf, is discussed in Excursus IX at the end of this Book.

The scope of the agent's commission might be general as well as special, and so might extend to the management of a person's entire affairs; but it might not be altogether indefinite, Dig. 17. I. 48. 2, unlawful, or immoral, § 7 inf., and it must relate only to future acts: si post creditam pecuniam mandavero creditori credendam, nullum esse mandatum rectissime Papinianus ait' Dig. 17. I. 12. 14.

Justinian's five species of mandatum are taken from the res quotidianae of Gaius (Dig. 17. 1. 2. 1-6), where, as here, the possible case is omitted of a commission being given by A to B to lend money to C, in order to enable the latter to pay a debt owing to himself, which is in the interest of all three (sua, tua, et aliena). Supervacuum is here used to mean 'void :' cf. inutilis in Tit. 19 supr.

1 ex eo obligatio nec mandati inter vos actio nascitur.

Man

dantis tantum gratia intervenit mandatum, veluti si quis tibi mandet, ut negotia eius gereres, vel ut fundum ei emeres, vel 2 ut pro eo sponderes. 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 fideiussoria causa mandet tibi, ut cum reo agas periculo mandantis, vel ut ipsius periculo stipuleris ab eo, quem tibi deleget in id quod 3 tibi debuerat. Aliena autem causa intervenit mandatum,

§ 1. The use of 'sponderes' is mere pedantry; in Dig. 17. 1. 2. 1 ; ib. 6. 2; ib. 8. 8, and other passages relating to this subject, we read only of fideiussio. The second of the three instances given here may be illustrated thus. A becomes surety (fideiussor) to you for B, who owes you 50. on your proposing to sue him on this contract of suretyship, he commissions you (mandat) to sue B, the principal debtor, in lieu of him at his (A's) risk. This is to A's interest, because he is protected from your action at any rate for a time, an advantage which he could not have otherwise secured, as Nov. 4 had not yet introduced the beneficium ordinis (p. 413 supr.); and he is altogether so protected if B proves solvent. It is to your interest, because the mandate may and probably will contain more favourable conditions than the fideiussio, e. g. the security of a hypotheca (ὑπόθου γὰρ ὅτι ἡ ἐγγύη γέγονε δίχα ὑποθήκης, τὸ δὲ μάνδατον μετὰ лоηηs Theoph.), and before Justinian's legislation it would have been most advantageous to you if you had been in doubt which was solvent, A or B, for in virtue of it you could first sue B without risk, and then, if he proved to have insufficient assets, you could sue A by actio mandati, which you could not have done by action on the guaranty, because he was released as fideiussor by litis contestatio with B. This was remedied by Justinian in Cod. 8. 42. 28 'generaliter sancimus, quemadmodum in mandatoribus statutum est, ut, contestatione contra unum ex his facta, alter non liberetur, ita et in fideiussoribus observari.'

To explain the third instance we will suppose that A owes 50l. to B, who owes the same sum to C. B gives a commission to C to stipulate from A at his (B's) risk that he (A) will pay him (C) the 50l. which he owes B; 'delegare est vice sua alium reum dare creditori vel cui iusserit' Dig. 46. 2. 11. As Mr. Poste points out, the result of this transaction, compounded of mandate and stipulation, is two novations, extinguishing the original debts of A to B, and B to C, and creating two new liabilities, a debt of 50%. owed by A to C, and a mandate between B and C under which B is guarantor of A; it is to B's interest, because he is released from the action on the debt to C, which might have been stricti iuris, and to which he was immediately liable, and can only be sued, if at all, by actio mandati, which is bonae fidei; it is favourable to C, because he thereby gets two debtors (a principal and a surety) instead of one.

§ 3. If A commissioned B to do something for C, he had no rights