[ULPIANUS libro trigensimo primo ad edictum. ] §17.2.63.prUerum est quod Sabino uidetur, etiamsi non uniuersorum bonorum socii sunt, sed unius rei, attamen in id quod facere possunt quodue dolo malo fecerint quo minus possint, condemnari oportere.
What Sabinus thinks is true, that even if they are partners not of their entire property but of a single thing, they ought nevertheless to be condemned to the extent of what they are able to pay, or of what they have by malice aforethought made themselves unable to pay.
hoc enim summam rationem habet, cum societas ius quodammodo fraternitatis in se habeat.
For this is highly reasonable, since partnership carries in itself a kind of right of brotherhood.
§17.2.63.1Uidendum est, an et fideiussori socii id praestari debeat an uero personale beneficium sit, quod magis uerum est.
It must be considered whether this ought to be granted also to the surety of a partner, or whether it is indeed a personal privilege, which is more correct.
sed si hic fideiussor quasi defensor socii iudicium susceperit, proderit sibi: namque Iulianus libro quarto decimo digestorum scribsit defensorem socii in id quod socius facere potest condemnari oportere.
But if this surety has undertaken the defense of the case as the defender of the partner, it will benefit him; for Julian wrote in the fourteenth book of the Digests that a defender of a partner ought to be condemned only to the extent of what the partner is able to pay.
idemque et in patroni defensore accipere debere ait: et utique idem erit in uniuersis, qui in id quod facere possunt conueniuntur.
And he says that the same should be accepted in the case of a defender of a patron; and indeed the same will apply to all who are sued to the extent of what they are able to pay.
§17.2.63.2Patri autem uel domino socii, si iussu eorum societas contracta sit, non esse hanc exceptionem dandam, quia nec heredi socii ceterisque successoribus hoc praestabitur: quia nec ceterorum heredibus successoribusque, quos in id quod facere possunt conuenimus, idem praestatur.
But to the father or master of a partner, if the partnership was contracted by their order, this exception is not to be given, because neither will this be granted to the heir of the partner and his other successors; for neither is the same granted to the heirs and successors of others whom we sue to the extent of what they are able to pay.
§17.2.63.3Id quod facere socius potest quemadmodum aestimandum sit? et placuit non debere deduci aes alienum quod debetur a socio: ita et Marcellus libro septimo digestorum scribsit, nisi forte, inquit, ex ipsa societate debeatur.
How is what a partner is able to pay to be estimated? And it has been decided that the debts owed by the partner should not be deducted; and so Marcellus also wrote in the seventh book of the Digests, unless, he says, it is owed from the partnership itself.
§17.2.63.4Item uidendum, an cautio ueniat in hoc iudicium eius quod facere socius non possit, scilicet nuda promissio: quod magis dicendum arbitror.
Likewise, it must be considered whether security for what the partner is unable to pay, namely a bare promise, is included in this action; which I think is rather to be asserted.
§17.2.63.5Si, cum tres socii essent, egerit cum uno ex sociis socius et partem suam integram sit consecutus, deinde alius socius cum eodem agat et partem consequi integram non poterit, quia facere solidum non potest, an hic qui minus consecutus est cum eo agere possit qui solidum accepit ad communicandas partes inter eos, id est exaequandas, quasi iniquum sit ex eadem societate alium plus, alium minus consequi? sed magis est, ut pro socio actione consequi possit, ut utriusque portio exaequetur: quae sententia habet aequitatem.
If, when there were three partners, one partner has sued one of the partners and has recovered his share in full, and then another partner sues the same partner and is unable to recover his share in full because the defendant cannot pay the whole amount, can the one who recovered less sue the one who received the whole in order to share, that is, to equalize, the portions between them, on the ground that it is unfair for one to recover more and another less from the same partnership? But it is better to hold that he can recover by the action of partnership so that the share of each is made equal; and this opinion possesses equity.
§17.2.63.6Tempus autem spectamus quantum facere socius possit rei iudicandae.
Moreover, as to how much the partner is able to pay, we look to the time of the judgment.
§17.2.63.7Hoc quoque facere quis posse uidetur quod dolo fecit quo minus possit: nec enim aequum est dolum suum quemquam releuare.
A person is also deemed to be able to pay what he has by malice made himself unable to pay; for it is not fair that anyone should be relieved of liability by his own malice.
quod et in ceteris, qui in id quod facere possunt conueniuntur, accipiendum est.
This must also be accepted in the case of others who are sued to the extent of what they are able to pay.
si tamen non dolo, sed culpa sua facere posse desiit, dicendum est condemnari eum non debere.
If, however, he ceased to be able to pay not by malice but by his own fault, it must be said that he ought not to be condemned.
§17.2.63.8In heredem quoque socii pro socio actio competit, quamuis heres socius non sit: licet enim socius non sit, attamen emolumenti successor est.
The action of partnership also lies against the heir of a partner, although the heir is not a partner; for though he is not a partner, he is nevertheless the successor to the benefit.
et circa societates uectigalium ceterorumque idem obseruamus, ut heres socius non sit nisi fuerit adscitus, uerumtamen omne emolumentum societatis ad eum pertineat, simili modo.
And we observe the same in respect of partnerships for tax-farming and others, namely that the heir is not a partner unless he has been admitted, but nevertheless all the benefit of the partnership belongs to him in like manner.
et damnum adgnoscat quod contingit, siue adhuc uiuo socio uectigalis siue postea: quod non similiter in uoluntaria societate obseruatur.
And he must acknowledge the loss that occurs, whether during the lifetime of the tax-farming partner or afterwards; which is not observed in the same way in a voluntary partnership.
§17.2.63.9Si seruo communi legatum sine libertate unus ex dominis reliquit, hoc ad solum socium pertinet: an tamen pro socio iudicio communicari debeat cum herede socii, quaeritur.
If one of the masters has left a legacy without freedom to a common slave, this belongs to the other partner alone; but it is asked whether this ought to be shared with the heir of the partner by the action of partnership.
et ait Iulianus Sextum Pomponium referre Sabinum respondentem non communicari, et posse hanc sententiam defendi Iulianus ait: non enim propter communionem hoc adquisitum est, sed ob suam partem, nec oportet id communicari, quod quis non propter societatem, sed propter suam partem adquisierit.
And Julian says that Sextus Pomponius reports Sabinus as replying that it is not to be shared, and Julian says that this opinion can be defended; for this was acquired not on account of the common ownership, but on account of his own share, and that which anyone has acquired not on account of the partnership, but on account of his own share, ought not to be shared.
§17.2.63.10Societas soluitur ex personis, ex rebus, ex uoluntate, ex actione.
Partnership is dissolved by reason of persons, of things, of will, and of action.
ideoque siue homines siue res siue uoluntas siue actio interierit, distrahi uidetur societas.
Therefore, if either the persons, the things, the will, or the action should cease to exist, the partnership is deemed to be dissolved.
intereunt autem homines quidem maxima aut media capitis deminutione aut morte: res uero, cum aut nullae relinquantur aut condicionem mutauerint, neque enim eius rei quae iam nulla sit quisquam socius est neque eius quae consecrata publicataue sit.
Persons cease to exist by the greatest or intermediate loss of status, or by death; things, when either none remain or they have changed their legal condition, for no one is a partner in a thing which is now non-existent, nor in one which has been consecrated or confiscated.
uoluntate distrahitur societas renuntiatione.
By will, partnership is dissolved by renunciation.