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BOOK supply a town with water. Temporary, where the contract is at an end when the object for which it was entered into is effected; as where a mason and carpenter enter into a partnership to build a certain house, as soon as the house is finished the partnership ceases1. No partner is bound to account to his co-partners for that which he gained from other sources, such as legata, mortis causa donationes, Division of &c. If no agreement existed to the contrary, the profits. partners shared the profit and loss equally; but this was open to arrangement according to the share of capital advanced, either as money or labour; but no agreement would be valid that one should take all the profit and the other bear all the loss, which was called the societas leonina3.
Liability of partners.
Actio pro socio.
A partner is bound to the same care and diligence as he exercises in his own private affairs, and if guilty of negligence he is answerable to his copartners; nor can he plead extra diligence in one case as a set-off against negligence in another. He is not liable for casus; and is entitled to be reimbursed all charges and expenses he has been at on the partnership accounts. The acts of one partner do not bind the rest if he act without authority, or beyond the scope of the partnership; otherwise his acts bind the partnership for profit or loss. If one partner introduce a stranger into the societas he does not thereby become a partner; for socii mei
socius non est meus socius.
The actio pro socio, which is an action bonæ fidei, lies for one partner against another to compel the due division of profits, and the payment of any damage occasioned by culpa levis. This only was the case durante societate; for if any question arose at the dissolution of the partnership it was settled by the judicium communi dividundo: and if a stranger had a claim upon the parties, in that case
he would sue in an action ex contractu, by which CHAP. he could recover from the contracting party in solidum, or from the members of the dissolved societas rateably according as the contract was that of the individual or of the societas1.
A societas was dissolved seven different ways:- How dis 1. By mutual consent2.
2. By one of the partners retiring, providing this was not done fraudulently, or in a way to damage the others3.
3. By the natural death of one of the partners.
By the bankruptcy of the societas.
By destruction of the property".
7. By the expiration of the time for which the contract was made.
The fifth and last consensual contract is man- Mandadatum, a commission, by which a lawful business tum. is committed to the management of another, and by him undertaken to be performed without pay or reward: Est contractus consensualis quo negotium Definition. honestum ab alio ex fiducia commissum, gratis administrandum gerendumque suscipitur. The term is supposed to be derived a manus datione, the token of agreement between the parties, the one to give, and the other to execute the commission.
We must be careful not to confound this with the contract of negotiorum gestio, which is a quasi contract, and where no commission is given; nor with hiring, because it is gratuitous; nor with mere advice, because in such case no obligation ensues unless it involve a fraud against a third party, and then the obligatio ex delicto would arise; nor with jussus, whereby we command servants, and those under our control, to perform certain acts.
1 D. XVII. 17. 2. 82.
3 Id. LXV. 3.
6 D. XVII. 2.
2 D. XVII. 2. 63. 10.
4 Id. LXV. 9.
7 Id. LXIII. 10.
9 See post Chap. 9.
10 D. L. 17. 47.
5 1. IV. I.
No fixed form is necessary to constitute a mandatum', which may be done verbally, or by letter; and it may even arise by mere presumption, where one permits another to transact his business for him. A mandatum might be general, or special; the former embracing the general management of the mandans, or only some particular commission confided to the mandatarius; and might arise five five ways. Ways: sive mea tantum gratia tibi mandem; sive aliena tantum; sive mea et aliena; sive mea et tua; sive tua et aliena3.
Might be cancelled or revoked.
A mandatum is contracted by consent only. The subject of the contract must not involve any illegal or immoral act; for rei turpis nullum mandatum est. There can be no payment (merces) involved, but a honorarium will not destroy the character of the contract. If the mandatarius exceeded the powers conferred on him by the mandans, the latter was not bound by his acts.
Since the mandatarius was selected on account of the trust reposed in him, if he delegated his commission to a third party he did so at the risk of breaking the contract, but if the instructions of the mandans were fully performed he would be liable.
A mandatum might be cancelled by the mutual consent of the parties, or revoked by the mandans, or renounced by the mandatarius, re integra", that is, when integrum jus mandatori reservetur vel per se, vel per alium, eandem rem commode explicandis. Lastly, by the death of either of the parties re integra; but it would appear that if the business were in that state at the time of death, that there could have been no revocation, the liabilities deLiability. volved upon the heir. The mandatarius having voluntarily undertaken that which he might have
1 D. XVII. I. I. 2.
4 D. XVII. 1. 6. 3.
6 D. XVII. I. 5.
8 D. XVII. I. 22. 11.
2 D. XVII. I. 6. 2.
5 D. XVII. 1. 6.
3 D. XVII. I. 2.
7 I. III. 27. 9. and 11.
9 D. XVII. I. 2. 6. Id. XXVII. 3.
declined, was liable for culpa levissima'; if guilty CHAP. of fraud, or culpa lata, he was notus infamia.
This contract gives rise to the actio mandati Actions. directa, and contraria. The former lies for the mandans against the mandatarius and his heredes, to compel the performance of the contract, and to recover such damages as may have been occasioned by his negligence; the latter, to indemnify the mandatarius for any loss he may have sustained. Dr Hallifax says that in the Laws of England the contract of mandatum is of no use. In this he is mistaken, because the Law of England distinctly recognizes the liability of unremunerated agents, who stand in the same position as the mandatarius of the Civil Law3. Story, in his Commentaries on Bailments, includes the contract of mandatum; but the Civil Law takes a much wider view of the contract. A mandatum may include a bailment, “a delivery of goods," &c. according to the definition of Sir William Jones; but the mandatum of the civilians is omne negotium honestum gratis susceptum, and does not necessarily involve the delivery of any thing.
1 C. IV. 35. 13. and 21.
2 D. III. 2. I.
3 See Coggs v. Bernard Smith's Leading Cases, Vol. I., and Story On Bailments.
Of Obligations quasi ex contractu, or from Implied
IMPLIED, or quasi contracts, are those in which the obligation is founded on the consent of the Implied parties not expressed, but presumed: Sunt facta contracts, honesta quibus et ignorantes obligantur, ex consensu, ob equitatem vel utilitatem, præsumto'; because every one is presumed to consent to that which is for his benefit; and no one can be presumed to desire to enrich himself at another's expense; for qui vult quod antecedit, non debet nolle quod consequitur.
Quasi contracts were principally six, though many others might arise which it would not be easy to specify. They are as follows: 1. Negotiorum gestio. 2. Tutela. 3. Rei communis administratio. 4. Hereditatis administratio. 5. Hereditatis aditio. 6. Indebiti solutio.
1. Negotiorum gestio is where one gratuitously transacts the business of another for his benefit upon his presumed consent; the consent of the principal being presumed because it is done to prevent an inevitable, or probable loss. The business done must therefore be gratuitously undertaken for the benefit of the dominus negotiorum, and without his consent. It must not be confounded with mandatum, in which the knowledge and request of the principal was the essential ingredient; nor with the duties of the procurator and defensor, who were only concerned in a negotium judiciale. A woman might be a negotiorum gestor3.
1 Hein. El. 966.
2 Colq. 1764.
3 D. III. 5. 3. 1.