[IDEM libro trigensimo primo ad edictum. ] §17.2.52.prCum duobus uicinis fundus coniunctus uenalis esset, alter ex his petit ab altero, ut eum fundum emeret, ita ut ea pars, quae suo fundo iuncta esset, sibi cederetur: mox ipse eum fundum ignorante uicino emit: quaeritur, an aliquam actionem cum eo uicinus habeat.
[THE SAME, in his thirty-first book on the Edict.] When a neighboring estate was for sale next to two neighbors, one of them asked the other to buy that estate, on the condition that the part which was joined to his own estate should be ceded to him. Soon afterwards, he himself bought that estate without the neighbor's knowledge. It is asked whether the neighbor has any action against him.
Iulianus scripsit implicitam esse facti quaestionem: nam si hoc solum actum est, ut fundum Lucii Titii uicinus emeret et mecum communicaret, aduersus me qui emi nullam actionem uicino competere: si uero id actum est, ut quasi commune negotium gereretur, societatis iudicio tenebor, ut tibi deducta parte quam mandaueram reliquas partes praestem.
Julian wrote that it is a complex question of fact: for if it was only agreed that the neighbor should buy the estate of Lucius Titius and share it with me, no action lies for the neighbor against me who bought it; but if it was agreed that the business should be conducted as if it were a common affair, I shall be held liable under the action of partnership, so that, after deducting the share which I had commissioned, I may deliver the remaining parts to you.
§17.2.52.1Uenit autem in hoc iudicium pro socio bona fides.
Now, good faith is considered in this action of partnership.
§17.2.52.2Utrum ergo tantum dolum an etiam culpam praestare socium oporteat, quaeritur.
Therefore, it is asked whether a partner ought to be liable for malicious intent alone or also for negligence.
et Celsus libro septimo digestorum ita scripsit: socios inter se dolum et culpam praestare oportet.
And Celsus wrote as follows in the seventh book of his Digests: partners ought to guarantee to each other both malicious intent and negligence.
si in coeunda societate, inquit, artem operamue pollicitus est alter, ueluti cum pecus in commune pascendum aut agrum politori damus in commune quaerendis fructibus, nimirum ibi etiam culpa praestanda est: pretium enim operae artis est uelamentum.
"If," he says, "in entering a partnership, one of them promised his skill or labor, as when we give cattle to be pastured in common or land to a cultivator to seek fruits in common, undoubtedly negligence must also be guaranteed there; for the reward of labor and skill is a cloak.
quod si rei communi socius nocuit, magis admittit culpam quoque uenire. §17.2.52.3Damna quae imprudentibus accidunt, hoc est damna fatalia, socii non cogentur praestare: ideoque si pecus aestimatum datum sit et id latrocinio aut incendio perierit, commune damnum est, si nihil dolo aut culpa acciderit eius, qui aestimatum pecus acceperit: quod si a furibus subreptum sit, proprium eius detrimentum est, quia custodiam praestare debuit, qui aestimatum accepit.
But if a partner has harmed a common thing, it is more acceptable that negligence also comes into account." Losses which happen to those who are not negligent, that is, fatal losses, partners shall not be compelled to guarantee; and therefore, if cattle are given at an estimated value and perish by robbery or fire, it is a common loss, if nothing happened through the malice or negligence of him who received the estimated cattle; but if they were stolen by thieves, it is his own loss, because he who received them at an estimated value ought to have guaranteed safe-keeping.
haec uera sunt, et pro socio erit actio, si modo societatis contrahendae causa pascenda data sunt quamuis aestimata.
These points are true, and there will be an action of partnership, provided they were given for pasturing for the sake of contracting a partnership, although they were valued.
§17.2.52.4Quidam sagariam negotiationem coierunt: alter ex his ad merces comparandas profectus in latrones incidit suamque pecuniam perdidit, serui eius uulnerati sunt resque proprias perdidit.
Certain persons entered into a partnership in the cloak trade; one of them, having set out to purchase goods, fell among robbers and lost his money, his slaves were wounded, and he lost his personal property.
dicit Iulianus damnum esse commune ideoque actione pro socio damni partem dimidiam adgnoscere debere tam pecuniae quam rerum ceterarum, quas secum non tulisset socius nisi ad merces communi nomine comparandas proficisceretur.
Julian says that the loss is common, and therefore under the action of partnership he ought to acknowledge half of the loss of both the money and the other things, which the partner would not have carried with him unless he had set out to purchase goods on the common account.
sed et si quid in medicos impensum est, pro parte socium agnoscere debere rectissime Iulianus probat.
But also if anything was spent on physicians, Julian most rightly approves that the partner ought to acknowledge his share.
proinde et si naufragio quid periit, cum non alias merces quam naui solerent aduehi, damnum ambo sentient: nam sicuti lucrum, ita damnum quoque commune esse oportet, quod non culpa socii contingit.
Likewise, if anything perished in a shipwreck, since goods were not usually brought by any other means than by ship, both shall feel the loss; for just as profit, so also loss ought to be common, which does not happen by the fault of a partner.
§17.2.52.5Cum duo erant argentarii socii, alter eorum aliquid separatim quaesierat et lucri senserat: quaerebatur, an commune esse lucrum oporteret.
When two moneychangers were partners, one of them had acquired something separately and had felt profit; it was asked whether the profit ought to be common.
et imperator Seuerus Flauio Felici in haec uerba rescripsit: 'etiamsi maxime argentariae societas inita est, quod quisque tamen socius non ex argentaria causa quaesiit, id ad communionem non pertinere explorati iuris est'. §17.2.52.6Papinianus quoque libro tertio responsorum ait: si fratres parentium indiuisas hereditates ideo retinuerunt, ut emolumentum ac damnum in his commune sentirent, quod aliunde quaesierint in commune non redigetur.
And the Emperor Severus wrote back to Flavius Felix in these words: "Even if a partnership of moneychanging is entered into in the highest degree, yet what each partner has acquired not from the cause of moneychanging does not belong to the common pool, as is well-established law." Papinian also says in the third book of his Opinions: if brothers retained the undivided inheritances of their parents in order to feel profit and loss in them in common, what they acquired from elsewhere shall not be brought into the common pool.
§17.2.52.7Item ex facto consultum respondisse se ait libro tertio responsorum: inter Flauium Uictorem et Bellicum Asianum placuerat, ut locis emptis pecunia Uictoris monumenta fierent opera et peritia Asiani, quibus distractis pecuniam Uictor cum certa quantitate reciperet, superfluum Asianus acciperet, qui operam in societatem contulit: erit pro socio actio.
Likewise, he says in his third book of Opinions that he gave an opinion in consultation based on a fact: it had been agreed between Flavius Victor and Bellicus Asianus that, on land purchased with Victor's money, monuments should be built by the labor and skill of Asianus, and upon their sale Victor should recover his money with a certain quantity, and Asianus, who contributed his labor to the partnership, should receive the surplus; there will be an action of partnership.