• Specific Year
    Any

The Nature of Partnership in Roman Law - [2005] AJLH 5; 9(1) Australian Journal of Legal History 119


The Nature of Partnership in Roman Law[∗]

SALVO RANDAZZO[∗∗]

In Europe, as in Australia, a company is a legal body in which individual participants are not liable with their own assets for the obligations assumed by the company and vice versa. This conceptual pattern is regulated in the Codes as società per azioni or società anonima (joint-stock company – similar to a public company), and società a responsabilità limitata (limited company). However in European Civil Law there are also types of società di persone (partnership) in which there is not a juridical ‘shield’ protecting the assets of the business against a single partner’s creditors’ attacks. In these partnerships it is also the case that a partner’s private assets are exposed to the company’s creditors’ executions.

Enterprise concentration in large groups, in many cases listed on the Stock Exchange and sometimes of transnational importance, occurs as a result of a preponderance of joint-stock companies. This often renders the Codes inadequate and results in continual legislative adaptation. In order to respond to this need to adapt the EU countries are helped by the unitary normative policy imposed by the European Community.

What then is the position of the present European Law towards Roman tradition? We live in a period of rapid transformation to which Continental jurists are exposed, and we are witness to the so-called ‘decline of codification’. The adequacy of current European company law to the changeable economic events of the western society is at a crisis point.

Can we learn from the past? Can Roman Law help as a ‘compass’ to orient the interpretation of commercial institutions in the trend towards a progressive legal standardization of the European Law? The regulation of commercial institutions is confirmation of the proposition that history is not a geometrical figure. Leaving aside positive jurists’ conscious or unconscious ‘esprit de geometrie’, I propose a short visit to a ‘Romanist’s workshop’. By taking a small observation angle ‘pointed’ at Roman private law[1] and particularly at the relationships existing within models in the Roman legal system I will let the sources speak, in order to see what insights might be gleaned of relevance to current developments.

Roman partnership was a contract based on the agreement of two or more parties who cooperated to reach a common aim. Partners contributed all their goods, money or labour to the company. They brought to the partnership single goods or specific activities and they sought a profit, in proportions which could vary from one partner to another. According to Gaius:

3.148: Societatem coire solemus aut totorum bonorum aut unius negotii, veluti mancipiorum emendorum aut vendendorum. Partnership usually covers either all the partners’ wordly wealth or else a single business, for instance, buying and selling slaves.

The share of profits and losses among partners is ‘inside’ the contract and it arises from the obligations among the partners themselves, regulated by the actio pro socio, a civil action based on bona fides. However the partnership was ‘personale’, that is among people. The personal nature of the partnership obligations are evidenced by the fact that a partner could not convey – either by a contract inter vivos (among living people) nor mortis causa (by hereditary succession) – his membership to other people without all the partners’ consent. In that case a ‘new’ partnership would arise, both substantially and legally. Further, neither the partnership as a whole nor any other partners are liable for the obligations assumed by a single partner:

D. 17.2.82 (Papinianus 9 quaestionum) Iure societatis per socium aere alieno socius non obligatur, nisi in communem arcam pecuniae versae sunt. By the law of partnership, a partner is not liable to incur debt through a co-partner unless the money was paid into the common fund.

The above is exemplified in a principle which appears reflected in a well-known Ulpian’s passage:

D. 17.2.20 (Ulpianus 31 ad edictum) Nam socii mei socius meus socius non est. For my partner’s partner is not my partner.

This passage says in only eight words what entire treatises tried to say, that a partner is never liable for obligations deriving from the relations between another partner and a third party. Such a pattern differed from English partnership law in that Roman partnership was not necessarily based on profit, and still more to the fact that while in Common Law partners are, within limits, agents for each other, and bind each other in dealings with third parties, this relationship between the partners did not arise in Roman Law in ordinary cases, since one person could not in general contract act so as to affect another. Thus the law dealt almost entirely with the relations of the socii, inter se.

The doctrine which fashioned the structure of Roman partnership is not unequivocal, but oscillates between traditional theories and trends resorting to an actualised reconstruction of institutes. There is very often an attempt to identify Roman commercial law as independent from the general Civil Law,[2] with an analysis extending from partnership to enterprise and ‘entrepreneurs’. This type of analysis seeks to coordinate these different approaches but most of the time only superimposes and confounds their nature and their legal foundations. Thus this type of analysis seems rigid. These kinds of methodological approaches serve to offer reconstructions which may be ‘academically correct’ but often run the risk of offering a low rate of scientific rigour and therefore of ‘truth’. To appropriately analyse Roman partnership we need a prudent approach which moves away from a paleoromanistica di ritorno[3] (a return to an ancient way of studying Roman Law) as Riccardo Orestano defines it, with the help of the other social sciences including the history of economics as first, in this delicate matter. But this approach must consider the matter with the traditional methodological instruments, and must be free from every dangerous and limited ‘actualising’ tendency.

Roman Law, as said before, does not know joint stock companies and the development of a doctrine that attributes such entities to Roman law has been reasoned in different ways based to a certain extent on undeveloped hypotheses of liability limits. In the ‘scientific psychology’ of these attempts we can perhaps see modern Roman Law scholars’ trend of searching in Roman Law legal ‘patterns’ to establish an historical premises of modern institutes. In this context the research often worked, taking into consideration the tightly interdependent concepts (and institutes) that were linked respectively to partnership and enterprise so that it was possible to assume a ‘limited liability enterprise’ whereas in fact we cannot identify a ‘limited liability partnership’. The structure was non-existent as such in Roman Law.[4]

If in modern codifications and in the analysis of the modern trade-law doctrine itself companies and enterprises appear at least to be studied in tight connection,[5] this is due to the great number of problems that the preponderance of joint stock companies, both national and transnational, present. These problems are essentially about the relationship between the organizational structure of companies, the legal configuration of enterprise properties (reflected in shares whose value is determined by economic variables and complex policies, which are reflected in the movements of the Stock Exchange markets) and management.

The interrelationships referred to in the preceding paragraph have lead to a focus albeit erroneously on ‘enterprise’ phenomena as an essential factor in understanding the structure and the history of the ancient Roman societas. These partnership-like societas were created in the Roman system by the intervention of the praetor who saw fit to regulate certain situations and in doing so gave them a juridical character. For example this happened when A, subjected to the paternal authority, conducted negotiations, while B, the pater familias was charged with the juridical effects, especially for A’s liability – whether A is a filius familias or more often a slave − so that B could suffer (third party) creditors’ executions. Scheme 1 illustrates the case.

500.png

As can be seen, an obligation is established between A (the slave or the filius familias subjected to paternal authority) and T, the third party. But B, the pater familias, is not involved in this relationship at all. He entrusted A with the business and economically benefits from it. According to the Roman ius civile in this situation the pater familias cannot be liable, because he does not have direct relations with the third party. But as the result of Roman magistrates’ decisions and the elaboration of particular actions over time, such as the so-called ‘actiones adiecticiae qualitatis’, the third person was allowed to proceed against the pater familias. In this way he obtained – pursuant to the particular trial process of escamotage a judgment against the pater familias himself, though it concerns a relation which was, iure civili, not connected to him. So not only the benefits of the business fall on him but also its debts.

Now even if in this hypothesis we could see a sort of split between A’s management and the pater’s liability, apparent in the law, and strictly connected with Roman magistrates’ creative actions, it is still unrelated to the structure and profile of the arrangement. In cases like these misunderstanding of the effect of the Roman law occurs, and not only in the Continental doctrine. Even an eminent English Romanist like Buckland included the adiecticiae qualitatis actions, in particular the actio institoria and the actio exercitoria, respectively related to slaves’ appointment in a trade activity and to the management of a merchant ship, inside societas.[6]

The existence of managerial concepts in the praxis of Roman business relations does not necessarily affect the essence of the partnership. In fact the enterprise phenomena seems cultivated by doctrine, which hypothesized an alternative structure to societas for the situations in which someone made use of servi communes.[7] If we want to analyse Roman partnership with a historical balance, we must keep absolutely separate the problems of the juridical-economical configuration of the partnership agreement from those concerning the management. In other words, to identify the first one we must concentrate our attention not on the individuals but on the ‘assets’, and then to understand the nature of societas we must move from these common assets, from their historical origin, their juridical features, to the relation between them and the partners.

But let’s take a step backward, to the Archaic age and to the most ancient hypothesis of partnership, the consortium ercto non cito, ‘legitima simul et naturalis societas’ as Gaius attests.[8] Roman partnership comes from the most ancient civil institution of the consortium ercto non cito and this seems generally accepted in doctrine. This was an inseparable partnership[9] which was created among brothers when they inherited mortis causa a certain patrimony which they could not ‘divide’, originally and until the decemviral period (until the fifth century BC). They could but ‘share’ it, because they were consortes, (etymologically deriving from cum sors) that is bound, united, ‘cum’, with the same ‘sors’, destiny[10] of owners of a property which they had to maintain as a whole.

The consortes have a non-characterizing role in the institute, but the goods, are the property in a comunione dinamica,[11] (dynamical community) which has its own specifically ‘real’ normative characterization, given by its intangibility pro parte from the single co-owners. This is the reality of consortium because after all this is the reality of Roman Law. Ulpian − the great Roman jurist well-known to English scholars of Roman Law thanks to Tony Honoré’s[12] excellent monograph on him − said that ‘a complete jus (right) is either of acquiring or of keeping or of reducing; for the question is either how something may come to be somebody’s or how a person may keep a thing or keep his jus or how he may alienate or lose it’.[13] This explains, as we will see later, the ideological misalignment so to say, of Roman law – in its strong inclination towards the concept of ‘belonging’ − to discipline, resulting in the synthesizing of the partnership agreement to capitalist entrepreneurs’ advantage[14] and the surreptitious utilization of differently configured enterprise mechanisms in the commercial praxis.

Now when societas joins the ancient juridical stock of consortium, this juridical (and cultural) structure is in one sense transmitted to the new institute. Accordingly it gives rise to the relationship between the affectio societatis[15] and the intuitus personae with the consequent non-transferability of the partner’s interest without other partners’ agreement from the ancient fraternitas.[16] And in fact though the patrimony is a fruit not of a succession but of free contributions when it forms the basis of the real partnership assets, it assumes the condition of comunione di diritti reali,[17] (community of real rights) and is held together only by those persons, socii, who build it up, but it can be attacked by third party creditors.

The partnership relationship can be explained in a similar fashion. In it the existence of ‘correctives’ for the absence of legal status does not affect the ‘personal’ characterization of contract. A typical example of a ‘corrective’ is the situation in which a partner received a mandate in relation to a specific sector of the partnership business from the other partners and the third persons who stipulated contracts with him could act to satisfy their credits against the other partners, but only because of the mandate and because of the institution. This is the case of the exercitores’ liability who appointed among them a magister navis. This liability originates from the charge or mandate and not from the partnership.

Picture 2 shows graphically the structure of the consortium ercto non cito:

501.png

fig. 2

As we can see it is an impermeable structure in which the connection between assets and outside activities is highlighted by active joint and several liability. So in case of purchases from a single co-owner the effects increase the common assets and for this reason, pro rata, the individual partners entitlement in the case of dissolution and distribution of them.

In figure 3 we can see the scheme of the first hypothesis of partnership deriving from the consortium and with it probably coexisting,[18] at least in the Republic period: the societas omnium bonorum. It is a partnership having assets formed by socii’s properties:

502.png

fig. 3

The assets appear as independent in relation to the socii’s activities with a strong ‘real’ connotation tightly linked to the community of goods.[19] It is a consensual partnership preceded by the admissibility of a consortium not only among brothers but also among strangers in terms of a societas re contracta.[20] Gaius himself points out terminological and conceptual links between the ancient consortium among brothers and the situation of those who ‘... ad exemplum fratrum suorum societatem coierint’.[21] Moreover the name of societas omnium bonorum itself points out the identifying role of the contributed goods, compared with the importance of profits which is evident in the characteristics of societas alicuius negotiationis.

As we can see from the figure 3, the ‘internal’ contractual relations among the socii of the new partnership consortium are not important externally. Only if a partner received a precise mandate from the other partners to enter into a relationship with third parties, whether to carry out a specific agreement, or as permanently in charge of a financial activity, was there a juridical connection between the third party and the other partners, the mandators, which made possible the third party’s attack on single partners’ assets. This was alien to the contractual pattern of partnership, but the insertion of a mandate made the personal assets ‘permeable’ and we can presume that third parties would be more eager to allow credit to such institutions because they felt more secure. The consequence of these forms of mandate meant that the partnership effected only the internal contractual relations among partners and their obligatory ties, but it did not have any independent legal status.

An ‘anomalous’ hypothesis of partnership from the point of view of legal capacity would seem the so-called ‘societas publicanorum’, that is a partnership in taxfarming, a tax collectors corporation.[22] Some scholars attempt to assimilate this form of business to a partnership. The societates publicanorum existed within the public law system. The evidence of the sources (only literary sources) which refer to them present serious interpretative problems however, as they involve questions concerning associations in general, though there are some similarities with partnerships in Civil law. However, apart from whether such associations possess a real ‘legal status’ which is a problem we cannot deal with here, their specific outlines render it rather risky to extend their characteristics to partnership in general.[23]

The hypotheses mentioned constitute at the same time a justification and a limit to some recent approaches to the reasoning which lead to the connection between partnership and enterprise structures. According to the approach that supports a connection, partnership evolves insofar as in it there is an enterprise structure. This leads to an attempt to identify enterprise structures within the ancient commercial experience of partnership phenomenon.[24] This perspective falls within the widespread trend of proposing a general, but hypothetical, ‘Roman Commercial law’.[25]

However, to understand this occurrence in terms which adhere to the sources, we need to start from a clear vision: Roman partnership is not based on management but on contributed goods. Only starting from the goods relationship we will be able to understand the actual nature of Roman societas and above all its complex evolution in the juridical and normative configuration. Straying from this path has lead to jurists’ extreme difficulty in formulating the legal status of the partnership.

This difficulty experienced by jurists, persisted through the middle ages and into the early modern period. An example would be the jurisconsult Baldo degli Ubaldi, certainly the great Bartolo da Sassoferrato’s[26] most genial disciple, who needed to refer to mandate to make out administrators’ powers and immunity from prosecution, though they were simple partners who carried out a business or a function communi nomine.[27] In his distinction between societates collegiatae or collegiales and societates singulorum[28] there is surely the intent of depicting the first as provided with legal status and of trying to consider the second as independent bodies acting under the insignia (signum) of partnership. There is also the progression of partnership as predominantly a relationship between natural persons to the inclusion of a focus on capital, to that ‘pecunia statuta’ which is ‘ad usus societatis’.[29]

But Baldo’s attention concerns mainly the partnership activity carried out by a single partner which can be considered no more as performed ‘suo nomine’ but ‘communi nomine’. Such activities can be considered as performed ‘societatis nomine’. After Baldo the scientific analysis on these themes becomes more and more modest and flat.[30] We need to wait until Pothier’s[31] formulation who at the end of seventeenth century systematically developed the partnership concept and consigned to the Code Napoléon an already mature discipline for this institute.

Let us now return to the question with which we began, about the role of the knowledge of Roman legal experience to jurists; indeed, not only to Continental jurists or jurists of Common Law, but to jurists ‘tout court’.

The analysis presented here on Roman partnership shows that the idea of the Roman contract of societas is embedded in Civil Law and in the discipline of civil obligations. But it is not a ‘commercial’ Law and this fact explains the difficulty of modern scholars to consider institutes such as the enterprise and the entrepreneur in terms of the discipline of the partnership agreement. Roman jurists’ linearity of construction prevented medieval annotators from giving shape to an independent commercial Law but ‘forced’ the nature of Roman juridical relation. This historical forcing explains also how at the end of the nineteenth century in Europe the attempts at creating independent trade Codes compared with Civil Codes failed and all commercial matters were incorporated inside the Civil Codes themselves.[32]

I spoke before about Roman Law as a sort of compass for modern jurists. I think that the evidence from Roman legal history clearly shows how we cannot succeed in understanding the history and the reality of commercial institutions without the knowledge of Roman legal experience. Without this understanding we could be exposed to a threefold failure: as historians of Roman Law, because we would interpret Roman Law according to an non-existent Roman commercial law; as historians of medieval law, because we would not understand entirely the difficulties of medieval jurists in giving shape to the company as a ‘person’ and also as historians of modern law, because we would look for the reasons for the failure of the commercial Codes in external facts of current legislative policy alone.

Overall it is civil and familial obligations, consortium, rather than commercial objectives, that drove the development and diversification of Roman partnership law. The nature and effect of contractual obligations gave rise to the element of enterprise[33] in legal relations and as such laid the foundations for the development of corporate structures. However the essence of partnership in Roman law was more pragmatic, a means to order personal relations. That Roman partnerships evolved a need for management does not necessarily alter this fact.


[∗] I wish to thank the Australia and New Zealand Law and History Society. I was particularly honoured by the invitation to open its 21st Annual Conference (12th July 2002, Katoomba, NSW). Here I am publishing the paper developed on that occasion, deliberately keeping its conversational style and adding just some guideline notes. Some small changes in the text are due to my colleague and friend Andrew Buck’s suggestions, and to some critical comments made by Richard Bauman and by the other colleagues of the University of New South Wales, who I met to discuss these stimulating topics on 23rd July 2002. [Mr Michael Quilter, Department of Business Law, Macquarie University also provided valuable editorial assistance – Editor’s note.] My lecture was preceded by the following words: ‘My daughter Giuliana, who shared the weariness of a long flight with me, asked what I would “teach” here in Australia and I tried to explain her that I did not have to teach, but only to “learn”’.

[∗∗] Law, Università di Catania, Italy.

[1] On this perspective see Randazzo, Roman Legal tradition and American Law. The Riccobono Seminar of Roman Law in Washington, in Roman Legal Tradition 1 (2002) 123 ff.

[2] Efforts (and failures) of such research, both among Roman law scholars at least starting from Goldschmidt, (Handbuch des Handelsrechts. Universalgeschichte des Handelsrechts 1 [1891]) and among modern Commercial law scholars are outlined by Filippo Gallo, Negotiatio e mutamenti giuridici nel mondo romano, in Imprenditorialità e diritto nell’esperienza storica. Atti del Convegno di Erice, 1988 (1992) 133 ff. − Opuscula selecta (1999) 823 ff. The transitory autonomy itself of the Italian commercial Codes of 1865 and 1882 towards the Civil Code of 1865, which resulted in the code unification of 1942 is a faithful mirror of this fact. Finally Cerami e Petrucci, Lezioni di diritto commerciale romano (2002) 5 ff supported the conservative opinion of Commercial law speciality; see: the cit. doctrine ib, note 13.

[3] Orestano, Idea di progresso, esperienza giuridica romana e ‘paleoromanistica’ in Alle origini della sociologia del diritto (1983) 15 ff. Amplius see Randazzo, Le radici di un’incomprensione: Emile Durkheim e gli storici del diritto romano, in Index 28 (2000) 53 ff. and note 11.

[4] Serrao, Impresa e responsabilità a Roma nell’età commerciale. II. L’impresa in Roma antica. Problemi e riflessioni (1989) 27.

[5] Though ‘impresa’ and ‘società’ appear as distinctly considered by doctrine and, after all, by the Italian Civil Code itself which regulates them separately.

[6] Buckland, A Text-Book of Roman Law from Augustus to Justinian (1950) 510.

[7] Di Porto, Impresa collettiva e schiavo ‘manager’ in Roma antica (II sec. a.C. – II sec. d.C.), (1984), on which see Talamanca, Società, in Enciclopedia del Diritto 42 (1990) 814, note 8.

[8] Gai 3.154a: Est autem aliud genus societatis proprium civium romanorum. Olim enim mortuo patre familias inter suos heredes quaedam erat legitima simul et naturalis societas quae appellabatur ercto non cito, id est dominio non diviso: erctum enim dominium est, unde erus dominus dicitur: ciere autem dividere est: unde caedere et secare [et dividere] dicimus. There is, however, another kind of partnership peculiar to Roman citizens. For in former times on the death of the head of a family there arose among his immediate heirs a kind of partnership which was at the same time statutory and natural; it was called <ercto non cito>, that is <ownership undivided>; for <erctum> means ownership and hence <erus> is a word for <owner>; and <ciere> means <to divide> so that <caedere>, to strike, and <secare> to cut, are related words for division.

[9] On this point see: Albanese, La successione ereditaria in diritto romano antico. Saggi, in Annali del Seminario giuridico del’ Università di Palermo 20 (1949) 127 ff. and, finally, Aricò Anselmo, ‘Societas inseparabilis’ o dell’indissolubilità dell’antico consorzio fraterno, in Iuris Vincula. Studi in onore di M. Talamanca 1 (2001) 149 ff. and ib. spec. bibl. in note 2.

[10] Actually a consors is ‘cui eadem contigit sors’: Forcellini, Lexicon totius latinitatis (Patavii 1940) 811. This etymological interpretation is normally accepted by all the common dictionaries: see one for all, Georges-Calonghi, Dizionario della lingua latina (1942) 580 f.

[11] Because, apart from the inherited property, it is open to include, with real effects, also the purchases afterwards carried out by consortes: so Guarino, Societas consensu contracta (1972) 12 and Talamanca, Società cit 815f.

[12] Ulpian (1982).

[13] D. 1.3.41 (Ulpianus 2 institutionum).

[14] Galgano, Storia del diritto commerciale (1976) 40 f.

[15] D. 17.2.63 pr. (Ulpianus 31 ad edictum): Verum est quod Sabino videtur, etiamsi non universorum bonorum socii sunt, sed unius rei, attamen in id quod facere possunt quodve dolo malo fecerint quo minus possint, condemnari oportere. hoc enim summam rationem habet, cum societas ius quodammodo fraternitatis in se habeat. What Sabinus says is correct, that even where a partnership is not in all goods but in one item of property, the partners nonetheless may be condemned for the amount that they can pay or can by fraudulent means avoid paying. This is perfectly reasonable, since partnership implies, in a sense, a law of brotherhood.

[16] Buckland, A Text-Book cit., 507 ff. D. 17.2.63 pr. insists on it.

[17] Riccobono, jr., Capacità manageriale e partecipazione agli utili nella ‘societas’ romana (Gai 3,148-149), in Atti del Seminario sulla problematica contrattuale in diritto romano I (1988) 230 note 12.

[18] On the evolution of consortium towards societas, see Bretone, ‘Consortiume ‘communio’, in Labeo 6 (1960) 163 ff, Talamanca’s synthesis in Società cit. 81 f. and Santucci, Il socio d’opera in diritto romano. Conferimenti e responsabilità (1997) 1 ff.

[19] As provided by the so-called transitus legalis: D. 17.2.1.1; eod. 2 and 3 pr. For a synthesis of the related problems see Talamanca, Società cit. 824 f.

[20] In relation to the societas consensu contracta see Drosdowsky, Der Verhältnis von actio pro socio und actio communi dividundo im klassische römischen Recht (1998) 20 ff. and ib. bibl.

[21] Gai 3.154b, on which see Bianchini, Studi sulla societas (1967) 9 ff.

[22] Another difficult question as regard its solution is the configuration of venaliciaria societates, whose problems are analogous to those of argentarii partnerships, while the problem concerning the so-called shipping company assumes its specificity. Ulpian D. 14.1.4 pr. refers to it. Sanfilippo’s sharp exegesis (Sulla irrilevanza del rapporto sociale nei confronti dei terzi, in IURA 2 [1951] 159 ff.) which – starting from a small breach of Arangio-Ruiz (La società in diritto romano [1950] 90 notes 3 and 91) at the beginning also strongly supported by Arangio-Ruiz himself, as regards the lack of effects on partners’ relationship towards the third persons who enter into a contract with the single partners − denies Ulpian’s reference to a real societas among exercitores navis, both in the passage at issue and in D. 14.1.1.25, was harshly contested by Serrao (Sulla rilevanza esterna del rapporto di società in diritto romano, in Impresa e responsabilità, cit 79 ff). He considers it only functional to eliminare l’ostacolo (remove the obstacle) which the text would represent for the assertion of a certa rilevanza esterna del rapporto sociale (certain outer relevance of partner relationship) (ib 79), but in this case exercitores’ jointly and severally liability ‘dipende dalla praepositio, non dal rapporto sociale’: so Talamanca, Società cit 829.

[23] On societates publicanorum see Cimma, Ricerche sulle società di publicani (1981), on which Talamanca, Società cit 831 ff is rather critical and Bona, Le ‘societates publicanorum’ e le società questuarie nella tarda repubblica, in Imprenditorialità e diritto cit 13 ff.

[24] Di Porto, Impresa collettiva e ‘schiavo manager’ in Roma antica (II sec. a.C. − II sec. d.C.), (1984).

[25] In this sense, an articulate attempt is recently offered by Pietro Cerami and Aldo Petrucci, Lezioni cit. passim. See also Cerami, ‘Exercitio negotiationum’. Tipologia storico-giuridica della disciplina dei rapporti commerciali, in Iuris Vincula cit. II, 147 ff: the contribution, moreover, is published in the first chapter of Lezioni cit.

[26] Stein, Bartuls, the conflict of Laws and the Roman law, in Multum non Multa. Festschrift für Kurt Lipstein (1980) 254 ff offers an outline of Bartul’s contribution to a ‘ius commune’ which could face the imperial law.

[27] Consilia (1575) CXX, n 3, f. 36 verso: societas autem habet instar mandati: invicem enim sibi mandati videntur quod ea, quae fiunt negotiative, communi nomine fiant ; see also In tres priores libros Codicis Commentaria (1599) passim.

[28] In secundam Codicis partem Commentaria (1599), ad proemium C. pro socio (C. 4.37), f. 104 verso.

[29] In secundam Codicis cit., ad C. Elius l. de non numer. Pecunia (C. 4.31.9, n 5) f. 86 verso: ... compensatio non procedit quia corpus societatis agit, non ille tamquam singularis persona, et ideo quod debetur societati, non compensatur cum uno ex sociis. Item quia illa pecunia statuta est ad usus sociales.

[30] On this point Diurni, Società. Diritto intermedio, in Novissimo Digesto Italiano XVII (1976) 531.

[31] Traité du contrat de société IV (1890).

[32] In 1881 as first Switzerland will incorporate both civil and commercial rules in an only Code.

[33] Regarding the changing concept of enterprise see Ricciardi, La natura contrattuale dell’impresa, in Atti del Seminario sulla problematica contrattuale cit. 333 ff. The expression ‘natura contrattuale’ ‘contractual nature’ is due to N S W Cheung, The Contractual Nature of the Firm, in The Journal of Law and Economics 26 (1983) 1 ff. See also L R Cohen, ‘The Firm: a Revised Definition’ (1979) 46 Southern Economic Journal 580 ff.

Download

No downloadable files available