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- The Institutes of Justinian - 30/41 -

in the absence of express agreement his obligations should be ascertained by reference to what is fair and equitable. Where a man has either given or promised for hire for the use of clothes, silver, or a beast of burden, he is required in his charge of it to show as much care as the most diligent father of a family shows in his own affairs; if he do this, and still accidentally lose it, he will be under no obligation to restore either it or its value. 6 If the hirer dies before the time fixed for the termination of the contract has elapsed, his heir succeeds to his rights and obligations in respect thereof.


A partnership either extends to all the goods of the partners, when the Greeks call it by the special name of Ďkoinopraxia,í or is confined to a single sort of business, such as the purchase and sale of slaves, oil, wine, or grain. 1 If no express agree- ment has been made as to the division of the profit and loss, an equal division of both is understood to be intended, but if it has, such agreement ought to be carried into effect; and there has never been any doubt as to the validity of a contract between two partners that one shall take two-thirds of the profit and bear two-thirds of the loss, and that the remaining third shall be taken and borne respectively by the other. 2 If Titius and Seius agreed that the former should take two- thirds of the profits, and bear only one-third of the loss, and that the latter should bear two-thirds of the loss, and take only one-third of the profits, it has been made a question whether such an agreement ought to be held valid. Quintus Mucius thought such an arrangement contrary to the very nature of partnership, and therefore not to be supported: but Servius Sulpicius, whose opinion has prevailed, was of a different view, because the services of a particular partner are often so valuable that it is only just to admit him to the business on more favourable terms than the rest. It is certain that a partnership may be formed on the terms that one partner shall contribute all the capital, and that the profits shall be divided equally, for a manís services are often equivalent to capital. Indeed, the opinion of Quintus Mucius is now so generally rejected, that it is admitted to be a valid contract that a partner shall take a share of the profits, and bear no share in the loss, which indeed Servius, consistently with his opinion, maintained himself. This of course must be taken to mean that if there is a profit on one transaction, and a loss on another, a balance should be struck, and only the net profit be considered as profits. 3 It is quite clear that if the shares are expressed in one event only, as for instance in the event of profit, but not in the event of loss, or vice versa, the same proportions must be observed, in the event of which no mention has been made, as in the other. 4 The continuance of partnership depends on the continuing consent of the members; it is dissolved by notice of withdrawal from any one of them. But of course if the object of a partner in with- drawing from the partnership is to fraudulently keep for himself some accruing gain -- for instance, if a partner in all goods succeeds to an inheritance, and withdraws from the partnership in order to have exclusive possession thereof -- he will be compelled to divide this gain with his partners; but what he gains undesignedly after withdrawing he keeps to himself, and his partner always has the exclusive benefit of whatever accrues to him after such withdrawal. 5 Again, a partnership is dissolved by the death of a partner, for when a man enters into a contract of partnership, he selects as his partner a definite person. Accordingly, a partnership based on the agreement of even several persons is dissolved by the death of one of them, even though several others sur- vive, unless when the contract was made it was otherwise agreed. 6 So too a partnership formed for the attainment of some particular object is terminated when that object is attained. 7 It is clear too that a partnership is dissolved by the forfeiture of the property of one of the partners, for such an one, as he is replaced by a successor, is reckoned civilly dead. 8 So again, if one of the partners is in such embarrassed circumstances as to surrender all his property to his creditors, and all that he possessed is sold to satisfy the public or private claims upon him, the partnership is dissolved, though if the members still agree to be partners, a new partnership would seem to have begun. 9 It has been doubted whether one partner is answerable to another on the action of partnership for any wrong less than fraud, like the bailee in a deposit, or whether he is not suable also for carelessness, that is to say, for inattention and negligence; but the latter opinion has now prevailed, with this limitation, that a partner cannot be required to satisfy the highest standard of carefulness, provided that in partnership business he shows as much diligence as he does in his own private affairs: the reason for this being that if a man chooses as his partner a careless person, he has no one to blame but himself.


Of the contract of agency there are five modes. A man gives you a commission either for his own exclusive benefit, or for his own and yours together, or for that of some third person, or for his own and the third personís, or for the third personís and yours. A commission given simply for the sake of the agent gives rise in reality to no relation of agency, and accord- ingly no obligation comes into existence, and therefore no action. 1 A commission is given solely for the benefit of the principal when, for instance, the latter instructs you to manage his business, to buy him a piece of land, or to enter into a stipulation as surety for him. 2 It is given for your benefit and for that of your principal together when he, for instance, commissions you to lend money at interest to a person who borrows it for your principalís benefit; or where, on your wishing to sue him as surety for some one else, he commis- sions you to sue his principal, himself undertaking all risk: or where, at his risk, you stipulate for payment from a person whom he substitutes for himself as your debtor. 3 It is given for the benefit of a third person when, for instance, some one commissions you to look after Titiusís affairs as general agent, or to buy Titius a piece of land, or to go surety for him. 4 It is for the benefit of the principal and a third person when, for instance, some one instructs you to look after affairs common to himself and Titius, or to buy an estate for himself and Titius, or to go surety for them jointly. 5 It is for the benefit of yourself and a third person when, for instance, some one instructs you to lend money at interest to Titius; if it were to lend money free of interest, it would be for the benefit of the third person only. 6 It is for your benefit alone if, for instance, some one commissions you to invest your money in the purchase of land rather than to lend it at interest, or vice versa. But such a commission is not really so much a commission in the eye of the law as a mere piece of advice, and consequently will not give rise to an obligation, for the law holds no one responsible as on agency for mere advice given, even if it turns out ill for the person advised, for every one can find out for himself whether what he is advised to do is likely to turn out well or ill. Consequently, if you have money lying idle in your cash-box, and on so and soís advice buy some- thing with it, or put it out at interest, you cannot sue that person by the action on agency although your purchase or loan turns out a bad speculation; and it has even been questioned, on this principle, whether a man is suable on agency who com- missions you to lend money to Titius; but the prevalent opinion is that of Sabinus, that so specific a recommendation is sufficient to support an action, because (without it) you would never have lent your money to Titius at all. 7 So too instructions to commit an unlawful or immoral act do not create a legal obligation -- as if Titius were to instigate you to steal, or to do an injury to the property or person of some one else; and even if you act on his instructions, and have to pay a penalty in consequence, you cannot recover its amount from Titius.

8 An agent ought not to exceed the terms of his commission. Thus, if some one commissions you to purchase an estate for him, but not to exceed the price of a hundred aurei, or to go surety for Titius up to that amount, you ought not in either transaction to exceed the sum specified: for otherwise you will not be able to sue him on the agency. Sabinus and Cassius even thought that in such a case you could not successfully sue him even for a hundred aurei, though the leaders of the opposite school differed from them, and the latter opinion is undoubtedly less harsh. If you buy the estate for less, you will have a right of action against him, for a direction to buy an estate for a hundred aurei is regarded as an implied direction to buy, if possible, for a smaller sum.

9 The authority given to an agent duly constituted can be annulled by revocation before he commences to act upon it. 10 Similarly, the death of either the principal or the agent before the latter commences to act extinguishes the agentís authority; but equity has so far modified this rule that if, after the death of a principal and without having notice of his decease, an agent executes his commission, he can sue on the agency: for otherwise the law would be penalizing a reasonable and unavoidable ignorance. Similar to this is the rule, that debtors who pay a manumitted steward, say, of Titius, without notice of his manumission, are discharged from liability, though by the strict letter of the law they are not discharged, because they have not paid the person whom they were bound to pay. 11 It is open to every one to decline a commission of agency, but acceptance must be followed by execution, or by a prompt resignation, in order to enable the principal to carry out his purpose either personally or by the appointment of another agent. Unless the resignation is made in such time that the principal can attain his object without suffering any prejudice, an action will lie at his suit, in default of proof by the agent that he could not resign before, or that his resignation, though inconvenient, was justifiable.

12 A commission of agency may be made to take effect from a specified future day, or may be subject to a condition. 13 Finally, it should be observed that unless the agentís services are gratuitous, the relation between him and the principal will not be agency proper, but some other kind of contract; for if a remuneration is fixed, the contract is one of hiring. And generally we may say that in all cases where, supposing a manís services are gratuitous, there would be a contract of agency or deposit, there is held to be a contract of hiring if remuneration is agreed upon; consequently, if you give clothes to a fuller to clean or to finish, or to a tailor to mend, without agreeing upon or promising any remuneration, you can be sued by the action on agency.


The Institutes of Justinian - 30/41

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