[IDEM libro trigensimo primo ad edictum. ] §17.2.58.prSi id quod quis in societatem contulit exstinctum sit, uidendum, an pro socio agere possit.
[THE SAME in the thirty-first book on the Edict.] If that which someone contributed to a partnership has been destroyed, it must be considered whether an action on partnership can be brought.
tractatum ita est apud Celsum libro septimo digestorum ad epistulam Cornelii Felicis: cum tres equos haberes et ego unum, societatem coimus, ut accepto equo meo quadrigam uenderes et ex pretio quartam mihi redderes.
This is discussed by Celsus in the seventh book of his Digests, in a letter to Cornelius Felix: "When you had three horses and I had one, we formed a partnership, so that you, having received my horse, might sell them as a four-horse team and return a fourth part of the price to me.
si igitur ante uenditionem equus meus mortuus sit, non putare se Celsus ait societatem manere nec ex pretio equorum tuorum partem deberi: non enim habendae quadrigae, sed uendendae coitam societatem.
If, therefore, before the sale my horse should die, Celsus says he does not think the partnership continues, nor that any part of the price of your horses is owed; for the partnership was formed not for holding a four-horse team, but for selling it.
ceterum si id actum dicatur, ut quadriga fieret eaque communicaretur tuque in ea tres partes haberes, ego quartam, non dubie adhuc socii sumus. §17.2.58.1Item Celsus tractat, si pecuniam contulissemus ad mercem emendam et mea pecunia perisset, cui perierit ea.
But if it is said to have been agreed that a four-horse team should be formed and made common property, and that you should have three shares in it and I one-fourth, we are undoubtedly still partners." Celsus also discusses, if we had contributed money to buy merchandise and my money had perished, for whom it perished.
et ait, si post collationem euenit, ut pecunia periret, quod non fieret, nisi societas coita esset, utrique perire, ut puta si pecunia, cum peregre portaretur ad mercem emendam, periit: si uero ante collationem, posteaquam eam destinasses, tunc perierit, nihil eo nomine consequeris, inquit, quia non societati periit. §17.2.58.2Si filius familias societatem coierit, deinde emancipatus a patre fuerit, apud Iulianum quaeritur, an eadem societas duret an uero alia sit, si forte post emancipationem in societatem duratum est.
And he says that, if after the contribution it happened that the money perished in a way that would not have occurred unless the partnership had been formed, it perishes for both; as, for example, if the money, while being carried abroad to buy merchandise, was lost. But if indeed before the contribution, after you had destined it for that purpose, it should then perish, "you will recover nothing on that account," he says, "because it did not perish for the partnership." If a son-in-power should enter into a partnership and then be emancipated by his father, it is questioned in Julian's work whether the same partnership continues or whether indeed it is another, if by chance the partnership was continued after the emancipation.
Iulianus scribsit libro quarto decimo digestorum eandem societatem durare, initium enim in his contractibus inspiciendum: duabus autem actionibus agendum esse, una aduersus patrem, altera aduersus filium: cum patre de eo, cuius dies ante emancipationem cessit, nam eius temporis, quo post emancipationem societas durauit, nihil praestare patrem oportet: cum filio autem de utroque tempore, id est de tota societate, nam et si quid, inquit, socius filii post emancipationem filii dolo fecerit, eius non patri, sed filio actio danda est.
Julian wrote in the fourteenth book of his Digests that the same partnership continues, for in these contracts the beginning must be looked at; but that actions must be brought by means of two suits, one against the father, the other against the son: with the father concerning that whose due date arrived before emancipation, for the father ought to guarantee nothing for that time during which the partnership continued after emancipation; with the son, however, concerning both periods, that is, the entire partnership, for, he says, even if the partner of the son did anything by fraud after the emancipation of the son, the action for it must be given not to the father, but to the son.
§17.2.58.3Si seruus meus societatem cum Titio coierit et alienatus in eadem permanserit, potest dici alienatione serui et priorem societatem finitam et ex integro alteram inchoatam, atque ideo et mihi et emptori actionem pro socio competere, item tam aduersus me quam aduersus emptorem ex his causis quae ante alienationem inciderunt dandam actionem, ex reliquis aduersus emptorem solum.
If my slave should enter into a partnership with Titius and, having been alienated, should remain in the same, it can be said that by the alienation of the slave both the former partnership was terminated and another was begun afresh, and therefore that the action on partnership is competent both to me and to the buyer, likewise that the action must be given both against me and against the buyer for those causes which occurred before the alienation, and for the remaining causes against the buyer alone.