THE NATURE OF PARTNERSHIP IN ROMAN LAW ∗ SALVO RANDAZZO ∗∗
In Europe, as in Australia, a company is a legal body in which individual participants are not liable with their own assets for the obligations assumed by the company and vice versa. This conceptual pattern is regulated in the Codes as società per azioni or società anonima(joint-stock company – similar to a public company), and società a responsabilità limitata (limited company). However in European Civil Law there are also types of società di persone (partnership) in which there is not a juridical ‘shield’ protecting the assets of the business against a single partner’s creditors’ attacks. In these partnerships it is also the case that a partner’s private assets areexposed to the company’s creditors’ executions. Enterprise concentration in large groups, in many cases listed on the Stock Exchange and sometimes of transnational importance, occurs as a result of a preponderance of joint-stock companies. This often renders the Codes inadequate and results in continual legislative adaptation. In order to respond to this need to adapt the EU countries are helped bythe unitary normative policy imposed by the European Community. What then is the position of the present European Law towards Roman tradition? We live in a period of rapid transformation to which Continental jurists are exposed, and we are witness to the so-called ‘decline of codification’. The adequacy of current European company law to the changeable economic events of the western society is at acrisis point.
I wish to thank the Australia and New Zealand Law and History Society. I was particularly honoured by the invitation to open its 21st Annual Conference (12th July 2002, Katoomba, NSW). Here I am publishing the paper developed on that occasion, deliberately keeping its conversational style and adding just some guideline notes. Some small changes in the text are due to mycolleague and friend Andrew Buck’s suggestions, and to some critical comments made by Richard Bauman and by the other colleagues of the University of New South Wales, who I met to discuss these stimulating topics on 23rd July 2002. [Mr Michael Quilter, Department of Business Law, Macquarie University also provided valuable editorial assistance – Editor’s note.] My lecture was preceded by thefollowing words: ‘My daughter Giuliana, who shared the weariness of a long flight with me, asked what I would “teach” here in Australia and I tried to explain her that I did not have to teach, but only to “learn”’. Law, Università di Catania, Italy.
Australian Journal of Legal History
2005 Vol 9
Can we learn from the past? Can Roman Law help as a ‘compass’ to orient the interpretationof commercial institutions in the trend towards a progressive legal standardization of the European Law? The regulation of commercial institutions is confirmation of the proposition that history is not a geometrical figure. Leaving aside positive jurists’ conscious or unconscious ‘esprit de geometrie’, I propose a short visit to a ‘Romanist’s workshop’. By taking a small observation angle‘pointed’ at Roman private law 1 and particularly at the relationships existing within models in the Roman legal system I will let the sources speak, in order to see what insights might be gleaned of relevance to current developments. Roman partnership was a contract based on the agreement of two or more parties who cooperated to reach a common aim. Partners contributed all their goods, money or labour to thecompany. They brought to the partnership single goods or specific activities and they sought a profit, in proportions which could vary from one partner to another. According to Gaius:
3.148: Societatem coire solemus aut totorum bonorum aut unius negotii, veluti mancipiorum emendorum aut vendendorum. Partnership usually covers either all the partners’ wordly wealth or else a single...