Humanitext Reader

Justinian I · The Digest of Justinian §17.2.23.pr-17.2.23.1

Admitted Partner's Fault and Denial of Set-Off with Profit

Passage 2525 of 9271 · Latin

Summary

Addresses the scope of liability for a partner who single-handedly admitted a new member, and rejects the view that profits from the new member's activities can offset the damages caused by their negligence.

[ULPIANUS libro trigesimo ad Sabinum. ] §17.2.23.prDe illo Pomponius dubitat, utrum actionem eum mandare sociis sufficit, ut, si facere ille non possit, nihil ultra sociis praestet, an uero indemnes eos praestare debeat.
[ULPIAN in his thirtieth book on Sabinus] On this point, Pomponius doubts whether it is sufficient for him to delegate the action to the partners so that, if that person is unable to pay, he makes good nothing further to the partners, or whether indeed he ought to keep them harmless.
et puto omnimodo eum teneri eius nomine, quem ipse solus admisit, quia difficile est negare culpa ipsius admissum.
And I think that he is bound in every way on account of the person whom he himself alone admitted, because it is difficult to deny that the person was admitted through his own fault.
§17.2.23.1Idem quaerit, an commodum, quod propter admissum socium accessit, compensari cum damno, quod culpa praebuit, debeat, et ait compensandum.
The same person asks whether the benefit which accrued on account of the admitted partner ought to be set off against the damage which his fault caused, and says that it should be set off.
quod non est uerum, nam et Marcellus libro sexto digestorum scribit, si seruus unius ex sociis societati a domino praepositus neglegenter uersatus sit, dominum societati qui praeposuerit praestaturum nec compensandum commodum, quod per seruum societati accessit, cum damno: et ita diuum Marcum pronuntiasse, nec posse dici socio: 'abstine commodo, quod per seruum accessit, si damnum petis. '
This is not correct, for Marcellus also writes in the sixth book of his Digests that, if a slave of one of the partners, having been placed in charge of the partnership by his master, has behaved negligently, the master who placed him in charge must make it good to the partnership, and the benefit which accrued to the partnership through the slave must not be set off against the damage; and that the deified Marcus so decided, and that it cannot be said to the partner: "Abstain from the benefit which accrued through the slave, if you seek damages."

Notes

  1. §17.2.23.practionem eum mandare sociis sufficit — The accusative-with-infinitive clause `actionem eum mandare sociis` serves as the subject of the impersonal verb `sufficit`. `eum` (referring to the admitting partner) is the subject accusative of the infinitive `mandare`.
  2. §17.2.23.prculpa ipsius admissum — An accusative-with-infinitive clause serving as the object of `negare`, where `esse` is omitted from `admissum [esse]`. The subject accusative (the person admitted) is also omitted as it is clear from the context: "that [the person] was admitted through his own fault."
  3. §17.2.23.1propter admissum socium — A construction of the 'ab urbe condita' type, where the noun combined with a perfect participle expresses an event: not literally 'on account of the admitted partner', but 'on account of the partner having been admitted' or 'due to the admission of the partner'.
  4. §17.2.23.1abstine commodo — The second-person singular active imperative `abstine` of the verb `abstinere`, which governs the ablative case `commodo` (ablative of separation), meaning 'abstain from the benefit' or 'give up the advantage'.

Cite this passage

Justinian I, The Digest of Justinian §17.2.23.pr-17.2.23.1. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:17.2.23.pr-17.2.23.1

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