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 p1049  Societas

Article by George Long, M.A., Fellow of Trinity College
on pp10490‑1050 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

SOCI′ETAS. Societas is classed by Gaius (III.135) and in the Institutions of Justinian among those obligationes which arise Consensu. When several persons unite for a common purpose, such a union is Societas, and the persons are Socii (Dig. 17 tit. 2 s. 57). The contract of Societas might either be made in words or by the acts of the parties, or by the consent of the parties signified through third persons: it required no particular form of agreement. A Societas might be formed either for the sake of gain to arise from the dealings and labour of the Socii (quaestus), or not. Societas for the purpose of quaestus corresponds to the English Partnership. A Societas might be formed which should comprise all the property of the Socii (societas omnium bonorum); in which case as soon as the Societas was formed, all the property of all the Socii immediately became common (res quae coeuntium sunt continuo communicantur). But the Societas might be limited to a part of the property of the Socii or to a single thing, as the buying and selling of slaves, or to carrying on trade in a particular thing in a particular place (Cic. pro P. Quintio, c. 3). The communion of property in a Societas might also be limited to the use of the things. A Societas might be formed either in perpetuum, that is, so long as the parties lived, or ad tempus or in tempore or sub conditione (Dig. 17, tit. 2 s. 1).

Each Socius was bound to contribute towards the objects of the Societas according to the terms of the contract. But it was not necessary that all the Socii should contribute money: one might supply money and another might supply labour (opera), and the profit might be divisible between them, for the labour of one might be as valuable as the money of the other. In the case of Roscius the actor, Fannius had a slave Panurgus, who by agreement between Roscius and Fannius was made their joint property (communis). Roscius paid nothing for his one half of the man, but he undertook to instruct him in his art. Apparently they became partners in the man in equal shares, for Cicero complains of the terms of the Societas on the part of Roscius whose instruction was worth much more than the price of the slave before he was taught his art (Cic. pro Q. Roscio Com. 10). The agreement between the Socii might also be, that one Socius should sustain no loss and should have a share of the gain, provided his labour was so valuable as to render it equitable for him to become a partner on such terms. If the share of the Socii were not fixed by agreement they were considered to be equal (Dig. 17 tit. 2 s. 29). One partner might have two or more shares, and another might have only one, if their contributions to the Societas in money or in labour were in these proportions. If the agreement was merely as to the division of profit, it followed that the Socii must bear the losses in the same proportion. Each Socius was answerable to the others for his conduct in the management of the business: he was bound to use Diligentia and was answerable for any loss through Culpa. The action which one socius had against another in respect of the contract of partner­ship, was an actio directa and called Pro Socio (cur non arbitrum pro socio adegeris Qu. Roscium, &c.; Cic. pro Q. Roscio Com. 9). The action might be brought for any breach of the agreement of partner­ship, for an account and for a dissolution. A partner might transfer his interest to another person, but this transfer did not make that other person a partner, for consent of all parties was essential to a Societas: in fact such a transfer was a dissolution of the partner­ship, and the person to whom the transfer was made might have his action De Communi dividundo. But there might be the pro socio actio against the heres of a socius, for though the heres is not a socius, yet he succeeds to the interest of his testator or intestate in the partner­ship (emolumento successor est; Dig. 17, tit. 2 s. 63, § 3).

Each socius had a right of action in proportion to his interest against any person with whom any of the socii had contracted, if the socii had commissioned him to make the contract or had approved of the contract; or if it was an action arising from a delict. Thus in the case of Roscius and Fannius, they had severally sued a third person in respect of their several claims as partners, and yet Fannius still claimed the half of what Roscius had recovered in respect of his share in the partner­ship (Pro Q. Rosc. Com. 11, 1718). In all other cases the person who made the contract could alone sue. All the socii could be sued if they had all joined in the contract with a third person, and each in proportion to his share. If one socius contracted on behalf of all, being commissioned to do so, all were liable to the full amount (in solidum). If a socius borrowed money, the other socii were in no case bound by his contract, unless the money had been brought into the common stock. In fact the dealings of one partner did not bind the other partners, except in such cases as they would be bound independent of the existence of the Societas. Condemnatio in an Actio Pro Socio was sometimes attended with Infamia.

Societas, unless it was for a limited period, could be ended at the pleasure of any one of the socii: any member of the body could give notice of dissolution when he pleased (renuntiare societati), and therefore the Societas was dissolved (solvitur). But in the case of a societas omnium bonorum, if one socius had been appointed heres, he could not by giving notice of dissolution defraud his co‑partners of their share of the hereditas. The death of a partner dissolved the Societas; and a Capitis diminutio was said to have the same effect. If the property of any one of the socii was sold either publice (bonorum publicatio) or privatim, the Societas was dissolved. It was also dissolved when the purpose for which it was formed was accomplished; or the things in which there was a Societas had ceased to exist; or by the lapse of the time for which it was formed.

If on the dissolution of a partner­ship there was no profit, but a loss to sustain, the loss was borne, as already stated, by the socii in proportion to their shares. If one man contributed money and another labour, and there was a loss, how was the loss borne? If the money and the labour were considered  p1050 equivalent, it would seem to follow that until the partner­ship property were exhausted by the payment of the debts, there should be no pecuniary contribution by the person who supplied the labour. This principle is a consequence of what Gaius states that the capital of one and the labour of another might be considered equal, and the gain might be divided, and if there was a loss the loss must be divided in the same proportion.

Societates were formed for the purposes of farming the public revenues. [Publicani]

(Gaius, III.148‑154; Dig. 17 tit. 2; Inst. 3 tit. 26; Cod. 4 tit. 37. Mühlenbruch, Doctrina Pandectarum; Mackeldey, Lehrbuch, &c.; Hasse, Die Culpa des Röm. Rechts s. 46, 49.)

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