[ULPIANUS libro trigesimo ad Sabinum. ] §19.5.13.prSi tibi rem uendendam certo pretio dedissem, ut, quo pluris uendidisses, tibi haberes, placet neque mandati neque pro socio esse actionem, sed in factum quasi alio negotio gesto, quia et mandata gratuita esse debent, et societas non uidetur contracta in eo, qui te non admisit socium distractionis, sed sibi certum pretium excepit. §19.5.13.1Iulianus libro undecimo digestorum scribit, si tibi areae meae dominium dedero, ut insula aedificata partem mihi reddas, neque emptionem esse, quia pretii loco partem rei meae recipio, neque mandatum, quia non est gratuitum, neque societatem, quia nemo societatem contrahendo rei suae dominus esse desinit.
[ULPIAN in the thirtieth book on Sabinus.] I had given you a thing to be sold at a certain price, on the condition that you should keep for yourself whatever more you sold it for, it is held that there is neither an action on mandate nor on partnership, but an action on the case as if another transaction had been carried out, because mandates must be gratuitous, and a partnership does not seem to be contracted with one who did not admit you as a partner in the sale, but reserved a certain price for himself. writes in the eleventh book of the Digests that, if I give you the ownership of my building site so that, after a block of flats has been built, you return a part to me, there is no sale, because I receive a part of my own property instead of a price; nor is there a mandate, because it is not gratuitous; nor a partnership, because no one, by contracting a partnership, ceases to be the owner of his own property.
sed si puerum docendum uel pecus pascendum tibi dedero uel puerum nutriendum ita, ut, si post certos annos uenisset, pretium inter nos communicaretur, abhorrere haec ab area eo, quod hic dominus esse non desinit qui prius fuit: competit igitur pro socio actio.
But if I give you a slave to be taught, or cattle to be pastured, or a child to be reared, on the condition that if they are sold after a certain number of years, the price should be shared between us, this differs from the case of the building site in that he who was previously the owner does not cease to be the owner here; therefore, an action on partnership lies.
sed si forte puerum dominii tui fecero, idem se quod in area dictum, quia dominium desinit ad primum dominum pertinere.
But if by chance I make the slave your property, he thinks that the same as was said of the building site applies, because the ownership ceases to belong to the original owner.
quid ergo est? in factum putat actionem Iulianus dandam, id est praescriptis uerbis.
What then is the case? Julianus thinks that an action on the case, that is, with prescribed words, should be granted.
ergo si quis areae dominium non transtulerit, sed passus sit te sic aedificare, ut communicaretur uel ipsa uel pretium, erit societas.
Therefore, if anyone has not transferred the ownership of the building site, but has allowed you to build in such a way that either the site itself or the price should be shared, there will be a partnership.
idemque et si partis areae dominium transtulerit, partis non, et eadem lege aedificare passus sit.
And the same applies if he has transferred the ownership of a part of the building site and not of another part, and has allowed you to build under the same terms.