[PAULUS libro trigensimo secundo ad edictum. ] §17.2.67.prSi unus ex sociis rem communem uendiderit consensu sociorum, pretium diuidi debet ita, ut ei caueatur indemnem eum futurum.
[PAULUS in the thirty-second book on the edict.] If one of the partners has sold a common thing with the consent of the partners, the price ought to be divided in such a way that security is given to him that he will be kept indemnified.
quod si iam damnum passus est, hoc ei praestabitur.
But if he has already suffered a loss, this shall be made good to him.
sed si pretium communicatum sit sine cautione et aliquid praestiterit is qui uendidit, an, si non omnes socii soluendo sint, quod a quibusdam seruari non potest a ceteris debeat ferre? sed Proculus putat hoc ad ceterorum onus pertinere quod ab aliquibus seruari non potest, rationeque defendi posse, quoniam, societas cum contrahitur, tam lucri quam damni communio initur.
However, if the price has been shared without security, and the one who sold has made some payment, should he, if not all partners are solvent, recover from the remaining partners what cannot be recovered from some? But Proculus thinks that what cannot be recovered from some pertains to the burden of the remaining partners, and that this can be defended by reason, since, when a partnership is contracted, a community of both profit and loss is entered into.
§17.2.67.1Si unus ex sociis, qui non totorum bonorum socii erant, communem pecuniam faenerauerit usurasque perceperit, ita demum usuras partiri debet, si societatis nomine faenerauerit: nam si suo nomine, quoniam sortis periculum ad eum pertinuerit, usuras ipsum retinere oportet.
If one of the partners, who were not partners of all goods, has lent common money at interest and received interest, he ought to share the interest only if he lent it in the name of the partnership; for if he lent it in his own name, since the risk of the principal belonged to him, it is proper that he himself retain the interest.
§17.2.67.2Si quid unus ex sociis necessario de suo impendit in communi negotio: iudicio societatis seruabit et usuras, si forte mutuatus sub usuris dedit: sed et si suam pecuniam dedit, non sine causa dicetur, quod usuras quoque percipere debeat, quas possit habere, si alii mutuum dedisset.
If one of the partners has necessarily expended anything from his own property on common business, he will recover it through the action of partnership, and also interest, if by chance he borrowed at interest and paid; but even if he paid his own money, it will not be said without reason that he ought also to receive interest, which he could have had if he had lent it to another.
§17.2.67.3Non alias socius in id quod facere potest condemnatur, quam si confitetur se socium fuisse.
A partner is not condemned to the extent of what he can perform, unless he admits that he was a partner.