Notes on Roman Law

If no term was fixed by agreement for the duration of a partnership, its continuance depended upon the continuing consent of the part- ners. In such case even an agreement that a partner could not withdraw was void. Any partner could work a dissolution of the partnership by notice of withdrawal to his copartners, provided, however, the withdrawal was in good faith and not for the purpose of defrauding the partners, or would not result in inconvenience or loss to the partnership. If the partnership was for a fixed term, a partner who withdrew before the expiration of the term divested himself of all rights in respect of the partnership, but remained liable for all its obligations socium a se, non se a socio liberat (Dig. 17, 2, 65, 6). The death of a partner dissolved the partnership, even where there were several surviving partners, unless it was agreed otherwise. And when the partnership was formed for a particular purpose, it was terminated when that purpose was accomp...

A partnership had in Romafi law no existence as to third persons. It could not act, hold property, nor render itself liable. Third persons knew the partners only as individuals. There was, therefore, no Roman law of the relationship of partners and third persons, a subject which figures so largely in the English law of partnership. The reason for this striking difference between the Roman and the English law doubtless lay in the fact that the doctrine of agency was practically unknown in Roman law, and hence one partner could not act so as to bind his copartner or the partnership. All his dealings with third persons were his acts as an individual.

The contract of partnership being a bona fidei negotium , each partner was bound to do not only what he had agreed to do, such as to contribute to the common stock the property agreed, or to divide profits, but whatever else good faith required. He was entitled to reimbursement for all proper expenditures, and to be indemnified in respect of obligations incurred by him in the partnership business. He was liable to his copartner for fraud or wilful default, but he was not bound to show more diligence in the partnership business than he did in his private affairs, the reason for this being that if a man chooses as his partner a careless person he has no one to blame but himself. Every partner had the actio pro socio against his copartners to enforce his rights in personam and the actio communi dividundo for a division of the partnership property. There was, however, a special benefit in favor of the defendant partner, that he could not be made to pay more than he could ...

All the partners might contribute both capital and services, or one might contribute all the capital and the other merely' services. And there might be a partnership of services only, as where two persons entered into a partnership to teach grammar and share the profits (Dig. 17, 2, 71). There could be no partnership, however, where one party contributed nothing, neither property nor services.

There were several different types of partnership, the most important being (1) Trade Partnerships, such as partnerships of bankers and money lenders. Neither partner was liable to account for any of his gains except in connection with the partnership business, nor to bear any but the business losses. (2) Partnership for a Single Transaction, as where Cornelius owning three horses and Licinius owning one horse agreed to sell them as a single team and divide the proceeds. If before the sale the one horse died, the question whether Cornelius should bear three-fourths of the loss depended upon the terms of the agreement. If the partnership was only for the sale of the team, then until the sale there was no. interchange of ownership, and the loss fell wholly on Licinius. But if the agreement was to make a team of four, Cornelius having a three-fourths interest and Licinius having a onefourth interest, the loss had to be divided in proportion to their shares, unless otherwis...

A partnership in Roman law was an association of two or more persons under a contract by which they combine their property, or their labor, or their property and labor, with a view of sharing their common gains. The term does not seem tohave been defined by the Roman writers. The Roman partnership, like the English, involved the sharing of profits and losses. In the absence of special agreement on the subject, an equal sharing of both profits and losses was understood. It might be agreed, however, that the shares should be unequal, as that one of two partners might receive two-thirds, and the other only one-third, of profits and bear losses in the same proportion, or that one partner might take two-thirds of the profits and bear only one-third of the losses, though this last point was decided only after some difference of opinion. And one partner might take a share of the profits without bearing any of the losses. Profit sharing in some proportion seems to have been essen...