Ad Dig. 12,1,15Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 26, Note 3; Bd. II, § 370, Noten 10, 11.The Same, On the Edict, Book XXXI. There are certain special rules which have been adopted with reference to money loaned; for if I order a debtor of mine to pay you money, you will become responsible to me, even though the money which you receive was not mine. Therefore, this rule being established with reference to two persons, it must also be observed where there is but one; so that, where you owe me money on account of a mandate, and it is agreed between us that you shall retain it as a loan, it is held that the money was paid to me and transferred from me to you.

The Same, On the Edict, Book XXXI. Where a creditor has instructed pledged slaves in various trades, a counter action will lie if they have already acquired knowledge in these matters, or if the instruction was given with the consent of the debtor. But if neither of these was the case, and the trades were necessary, the counter action will lie, but not to the extent that the debtor will be compelled to lose the slaves on account of the amount of the expense; for, just as the creditor is not suffered to neglect the property through malice and negligence, so also he is not permitted to place what is pledged in such a condition that its recovery would be onerous to the debtor; as, for instance, where a large tract of land is given in pledge by a man who can hardly redeem it, and not even cultivate it, and you, having received it in pledge, cultivate it in such a way as to render it of great value; as, in fact, it is not just that I should be compelled to look for other creditors, or to sell what I wished to recover, or to leave it in your hands through the force of poverty. These matters should be considered by the judge, who should take a middle course, so as not to listen to the trifling objections of the debtor, or to the oppressive claims of the creditor.

Ulpianus, On the Edict, Book XXXI. It is clear that, if he could buy the property back, and return it, and does not wish to do so, he is not free from negligence; just as if he was unwilling to return it if it had been bought back or had come into his possession in any other way, alleging as an excuse that he sold it once while ignorant of the facts.

Ulpianus, On the Edict, Book XXXI. If an honor is bestowed by way of remuneration, an action on mandate will lie. 1Where anyone has been directed to transact certain business, he can be sued by means of this action, and proceedings on the ground of voluntary agency cannot properly be instituted against him, for he is only bound to the extent that he transacted the business; but in this instance, because he accepted the mandate he will be liable, even if he did not transact the business. 2Ad Dig. 17,1,6,2ROHGE, Bd. 11 (1874), Nr. 2, S. 4: Mandat zur Bürgschaft, geschlossen aus der Zulassung der Mitunterzeichnung eines Wechsels.Where I permitted anyone to become my surety, or to intervene in any other way for my benefit, I am liable to an action on mandate. And, unless a party bound himself for another who was unwilling that he should do so, or with the intention of making him a present, or of transacting his business, an action on mandate will lie. 3There can be no mandate of a dishonorable transaction, and therefore proceedings cannot be instituted by this action. 4If I direct you to attend to something with which I have no concern, as, for instance, to become surety for Seius, or to make a loan to Titius, I will have a right of action on mandate, as Celsus states in the Seventh Book of the Digest, and I will be liable to you. 5Ad Dig. 17,1,6,5ROHGE, Bd. 10 (1874), S. 402: Haftung aus Rath und Empfehlung nur wegen Dolus nicht auch wegen culpa.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 412, Note 21.It is evident that if I direct you to do something in which you are interested the action on mandate will not lie, unless I, also, have an interest in the matter; or, if you would not have transacted the business unless I had directed you to do so, even if I had no interest in it, an action on mandate will, nevertheless, be available. 6The question is asked by Julianus in the Thirteenth Book of the Digest, whether, if a principal directs his agent to take a certain sum of money and lend it at interest at his risk, provided he pays the said principal certain interest, and the agent can lend it at a higher rate, he himself will be entitled to the profit; for, as Julianus says, he is held to have received the money as a loan. It is evident, however, that if he was charged with the administration of the entire business he would also be liable to an action on mandate, just as a debtor who transacts the business of his creditor, is ordinarily held liable to an action on mandate. 7A certain Marius Paulus became surety for a party named Daphnis, and it was agreed that he should be compensated for doing so. It was also provided that a certain sum of money should be paid to him, under another name, in case of a favorable termination of the suit. He was ordered by Claudius Saturninus, the Prætor, to pay a much greater amount than that above mentioned, and the same Saturninus forbade him to appear in court as an advocate. It seemed to me that he had given security for the payment of the judgment, and that he appeared as the purchaser of the suit, and Marius Paulus seemed to desire that an action on mandate should be brought against Daphnis for the amount for which judgment has been rendered against him. The Divine Brothers, however, most properly stated in a Rescript that, on account of his deceitful conduct, he was not entitled to an action, because he had agreed, for a pecuniary compensation, to assume the responsibility. On the other hand, Marcellus says with reference to the party who had made a promise in consideration of the money that if, in fact, the intention was to bind himself at his own risk, he could not bring an action, but if this was not the intention, a prætorian action could more properly be brought. This opinion seems to conform to the public welfare.

Ulpianus, On the Edict, Book XXXI. If I appoint an attorney, and he does not return to me the documents relating to the case, in what action will he be liable to me? Labeo thinks that he will be liable to an action on mandate, and that the opinion of those who think that on this ground an action on deposit can be brought, is not the correct one; for the origin of every contract and its cause should always be taken into consideration. 1But where the adversary of the attorney is released through collusion, the latter will be liable to an action on mandate; but if the attorney is not solvent, then he says that an action on the ground of fraud should be granted against the party who was released through collusion. 2It is established that where an attorney does not proceed with a case which he undertook to conduct, he is liable to an action on mandate. 3Ad Dig. 17,1,8,3ROHGE, Bd. 17 (1875), Nr. 21, S. 78: Legitimation des Verkäufers, der den Speditionsvertrag in eigenem Namen geschlossen, den dem Käufer aus der Nichterfüllung entstandenen Schaden als seinen eigenen einzuklagen.ROHGE, Bd. 18 (1876), Nr. 22, S. 97: Begründung des Anspruchs des Postfiskus auf Ersatz aus dem Verluste eines Geldbriefbeutels. Berufung auf die Verbindlichkeit, dem Absender Ersatz zu leisten.Where one person directs another to transact the business of him who himself had charged him to do so, he will be entitled to an action on mandate, because he himself is also liable; for, although it is commonly stated that one attorney cannot appoint another before issue is joined, still an action on mandate will lie, for he can only do this for the purpose of conducting the case. 4Where certain guardians directed their fellow-guardian to purchase a slave for their ward, and he does not do so, will an action on mandate be available? And will one on mandate only lie, or can one also be brought on guardianship? Julianus makes a distinction here, as he says that the kind of slave which the guardians directed one of their number to purchase should be taken into consideration, for if the slave was superfluous, or even burdensome, the guardian will be liable only to an action on mandate, and not to one on guardianship. Where, however, the slave was necessary, he will then be liable to an action on guardianship, and not only himself but the others as well; for if they did not direct him to make the purchase, they will be liable to an action on guardianship, for the reason that they did not purchase a slave who was necessary for their ward; they are therefore not released for having commissioned their fellow guardian, because they should have made the purchase themselves. It is evident that they will, nevertheless, be entitled to an action on mandate, because the mandate was not complied with. Julianus also says that, on the other hand, a guardian who makes a purchase, will be entitled to an action on mandate against his fellow-guardians. 5Where a man who is free and is serving as a slave in good faith, directs Titius to buy him, and gives him money from his peculium for that purpose, which peculium should follow him, and ought to be left in the hands of a bona fide purchaser; and Titius, after the price was paid, manumitted the freeman who subsequently was judicially declared to have been born free; Julianus says he will be entitled to an action on mandate against the party whom he directed to buy him; but that all he can gain in this action on mandate will be to compel the party to transfer to him the rights of action which he possesses against him from whom he purchased the slave. It is evident that, if he gave him money derived from the peculium belonging to a bona fide purchaser, he cannot transfer any rights of action to him (so Julianus says), because he has none, since the purchaser gave him his money; and he says further that he is bound on account of the sale, and this action is of no effect, for the reason that whatever he recovered he would have to make good in an action on sale. 6The action on mandate will then lie when the interest of the person who gave it begins to exist, but if he has no interest, the action will be inoperative, for it will lie only to the extent of his interest; as, for instance, where I directed you to purchase a tract of land for me, since, if I had an interest in making the purchase, you will be liable, but if I myself purchased the same land or another party did so for me, as I have no interest, the action on mandate will not be available. I ordered you to transact my business, but even though no one transacted it, if no loss resulted, an action will not lie, but if someone else transacted the business properly, the action on mandate will not be available. This same rule is applicable in similar cases. 7Where sureties, who were not aware that their debtor had made payment, or had been released by means of a receipt, or under an agreement, have again paid the claim due from the debtor, they will not be liable to an action on mandate. 8This also applies to the action to which the surety is entitled, which can be ascertained from a Rescript of the Divine Brothers, addressed to Catullus Julianus as follows: “If the parties who have become your sureties have judgment rendered against them for a larger amount than the debt claimed; and if they, being intelligent and informed of the facts, neglected to take an appeal, you can protect your-self by having recourse to the equity of the court, if they bring an action on mandate.” Therefore, if they were ignorant of the facts, their ignorance is excusable, but if they were aware of them, it was incumbent upon them to take an appeal, and they were guilty of bad faith in not doing so. But what if they were prevented by poverty? Their indigence should then be their excuse, but if they had made an agreement with the principal debtor, in the presence of witnesses, that he should take an appeal if he thought it was advisable, I am of the opinion that they have acted properly. 9He is held to have acted in bad faith who does not return what he has the power to restore. 10Ad Dig. 17,1,8,10ROHGE, Bd. 15 (1875), Nr. 73, S. 263: Verpflichtung des neg. gestor zur Herausgabe dessen, was er in Ausführung des Geschäfts erworben, an den dom. negot. Beweislast, wenn er es aus einem andern Grunde in Besitz genommen.Hence, if I directed you to purchase a slave, and you did so, you will be liable for his delivery. But if you fraudulently neglected to purchase him, (or, perhaps, having received money for that purpose, you gave it to another that he might make the purchase) or if you were guilty of gross neglect (for instance, if induced by favor, you should permit another to purchase him) you will be liable. If, however, the slave whom you purchased should run away, you will be responsible, if this occurred through your bad faith. But if neither bad faith or negligence existed, you will not be liable except to the extent that you must furnish security to deliver up the slave if he should come into your power. But if you should deliver him up, you must give me possession of him; and if security is furnished against his recovery by eviction, or you have a right to ask that security should be furnished to you, I think that it will be sufficient if you assign this right of action to me, so that you may appoint me your agent to act in my own affairs, and you will not be obliged to make good any more than you actually will obtain.

Ulpianus, On the Edict, Book XXXI. The same rule also applies to real-property, where the agent purchases a tract of land; for the party who appointed him is not responsible for anything more than good faith. 1Where, however, security is given to the agent with reference to the health of a slave, or such security can be given, or where it is done with reference to other defects, the same rule will apply; or the party will have judgment rendered against him, if, through negligence, he does not provide for security. 2Where crops are gathered from land which my agent has purchased for me, it is the duty of the judge to compel these also to be made good. 3Where my agent has money belonging to me in his hands, he will owe me interest from the date of his default in paying it. Where, however, he has lent money on interest, and has collected the interest, we hold, in consequence, that he is obliged to make good any profit which he has obtained from it; whether I directed him to lend said money or not, because it is required by good faith that he should not profit by the property of another. If, however, he did not make use of the money, but appropriated it for his own use, he can be sued for the interest at the legal rate customary in that district. Finally, Papinianus says that, even if the agent should collect interest and appropriate it for his own use, he must make it good. 4If anyone should direct Titius to borrow money from those who employ him, an action on mandate cannot be brought against him, (as Papinianus states in the Third Book of Opinions) because he is liable on account of the loan, and therefore he cannot be sued for interest as it were on the ground of mandate, if this was not expressly set forth in the stipulation. 5Papinianus also says in the same Book that, where a surety who assumed responsibility because his principal directed him as his agent to borrow the money, has judgment rendered against him; an equitable action in the nature of an institorian proceeding should be granted, because he may be held, as it were, to have appointed him for the purpose of making the loan. 6Where I direct anyone to stipulate for a sum from Titius, I can bring an action on mandate against the party whom I directed to do this, in order to compel him to release him, if I desire to do so; or, if I prefer, I can bring an action to compel him to make a substitution to me, or to anyone else that I may wish. Papinianus states in the same Book that, if a mother gives a dowry in behalf of her daughter, and then, under the direction of her daughter, makes a stipulation at that time, or even afterwards; she will be liable to an action on mandate, although she herself is the one who gave the dowry. 7Where anyone asserts that the business which he has directed his agent and his slave to transact will only be ratified if Sempronius is present when this is done, and a bad debt should be contracted, Sempronius, who was not guilty of fraud, will not be liable; and it is true that he who attends to the affairs of another without the intention of acting as an agent, but solely through motives of affection and friendship, for the purpose of advising agents and stewards and directing them by his counsel, is not liable to an action on mandate; but if he should be guilty of bad faith, he will be liable, not to an action of mandate, but to one on the ground of fraud. 8If I direct my agent to lend my money to Titius without interest, and he does not lend it to him without interest, let us examine whether he should refund the interest to me? Labeo states that he should refund it, even though I directed him to lend the money without interest; although if he lent the money at his own risk, Labeo says that an action to recover the interest will not lie. 9Labeo also says, and it is correct, that this action also permits reimbursement, and as a party who acts as agent is required to deliver the crops, he can also deduct any expense which he may have incurred in gathering them; but if he expended anything for transportation while he was going over the land, I think that such expense should also be made good to him, unless he was employed on a salary, and it was agreed that he shall pay his own expenses on journeys of this kind, that is to say, he should pay them out of his salary. 10He also says that if an agent incurs any expense for the sake of pleasure, outside his mandate, his principal should permit him to remove the object for which it was incurred, if this can be done without injury to him, unless the principal wishes him to be accountable for said expense. 11Sureties and mandataries are entitled to an action on mandate, even though they have made payment without the institution of judicial proceedings. 12Julianus says that, generally speaking, if a surety has neglected to interpose an exception which was a personal one, and of which the principal debtor could not avail himself, he will still be entitled to an action on mandate; if, indeed, the exception could not have been honorably employed. If he did this knowingly in a case in which the principal debtor could have made use of the proceeding, he will not be entitled to an action on mandate, provided that he had the power of settling the matter, and of asking the party whether he preferred to undertake the defence of the case in his own behalf, or by means of an attorney. 13Where a receipt is given by a creditor to a surety by way of gift, I think that if the creditor desired to remunerate the surety, the latter would be entitled to an action on mandate; and much more would this be the case if the creditor gave him the receipt on account of death, or bequeathed him a release.

Ulpianus, On the Edict, Book XXXI. If, however, not for the sake of remuneration, but mainly as a gift, a creditor dismisses the suit against a surety, the latter will not be entitled to an action against the debtor. 1Marcellus, however, holds that where anyone, with the intention of making a gift to a surety, pays a creditor in his behalf, the surety will be entitled to an action on mandate. 2It is evident, he says, that where a son under paternal control or a slave is the surety, and I make payment for him, I give him a present; and neither the father nor the master can bring an action on mandate. This is the case because the party who made the payment did not intend to make a donation to the father. 3It is clear that if a servant, who is a surety, should pay the creditor, his master will be entitled to an action on mandate. 4Marcellus also says, in the same place, that where a son under paternal control became security without the authority of his father, an action on mandate will not lie, if there is nothing in the peculium; but if he became security by the order of his father, or payment was made out of the peculium, there is still more reason that his father should be entitled to an action on mandate. 5If I directed a son under paternal control to make payment for me, Neratius says that his father would be entitled to an action on mandate, whether he himself made payment, or his son did so out of the peculium, and this is reasonable, for it makes no difference to me who pays my debts. 6If I direct a son under paternal control to make payment for me, and he does so after being emancipated, it is true that an action in factum should be granted to the son, but the father will be entitled to an action on the ground of voluntary agency, if he pays after the emancipation of his son. 7They proceed by the counter action who have accepted the mandate; as, for instance, those who have undertaken the agency of matters in general, or of a single transaction. 8Hence Papinianus asks whether a patron who has bought a tract of land and paid two thirds of the purchase-money, and ordered the said land to be delivered to his freedman, so that he may pay the remainder, and, after this has been done, and the freedman has consented that the land shall be sold by the patron, can the freedman recover the third of the purchase-money? He says if the freedman accepted the mandate in the beginning, he did not receive a gift, and he can recover the third of the purchase-money by means of the counter action after having deducted the profits which he had collected in the meantime; but if the patron bestowed this as a gift upon his freedman, the latter will be held to have afterwards donated it to his patron. 9If you have directed me to purchase something for you, and I purchase it with my own money, I will be entitled to an action against you to recover the price of the same; but if I pay for it with your money, and there is still some bona fide balance due for the purchase of the article, or if you refuse to receive it after it has been bought, the contrary action on mandate will lie. The case will be similar if you direct me to do anything else, and I incur expense for that purpose; for I can not only recover the amount which I have disbursed but also interest on the same. The interest, moreover, should not only begin to run from the time of the default, but the judge should also make an estimate of the expense, if a party demands payment from his debtor and the latter pays, where he obtains a very high rate of interest (for it is perfectly just that reason should be considered in matters of this kind), or where the debtor himself has borrowed money at a high rate of interest and pays it. If, however, the agent did not release the principal debtor from the payment of interest, but the interest itself is lost; or if he released him from a low rate of interest, and, in order to execute his trust, received a higher rate; I have no doubt that he can recover the interest by an action on mandate, and, (as has already been determined) a judge should decide all this in accordance with the principles of equity and good faith. 10I gave you money in order that you might pay my creditor, you did not do so, and you will owe me interest; in this instance, my creditor can recover the money due from me with interest, as was stated by the Emperor Severus in a Rescript directed to Hadrianus Demonstratus. 11Ad Dig. 17,1,12,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 420, Note 7.If a dissolute young man directs you to become security for a harlot, and you, having knowledge of her character, undertake to carry out the mandate, you will not be entitled to an action on mandate; because the case is similar to the one where you lend money to a party being well aware that he will lose it. But if he still further directly charges you to lend money to a harlot, you will not be bound by the mandate, as it was given contrary to good faith. 12Where a certain man wrote a letter to his friend as follows: “I ask you to consider Sextilius Crescens, my friend, as recommended to you,” he will not be liable to the action of mandate, because the letter was written rather for the purpose of recommending the man than on account of the mandate. 13Ad Dig. 17,1,12,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 373, Note 15.Where one party directs another to lend money to a son under paternal control, the latter should not be considered as borrowing it in violation of the Decree of the Senate; but, for the reason that the father will be liable either to an action on the peculium, or for money expended for his own benefit, or on the ground of an act performed by his order, the mandate will be valid. I further say, that if I should be in doubt as to whether he was accepting the loan in opposition to the Decree of the Senate, or not, and I refuse to lend him the money in violation of the Decree of the Senate, and someone should then appear who alleges that this is not the case, and he also says to the creditor, “Make the loan at my risk, you will make a good loan.” I think that there is ground for a mandate, and that the party will be liable to the action. 14Ad Dig. 17,1,12,14Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 412, Note 18.If I direct the creditor to make a loan after the money has already been lent; Papinianus says, very properly, that there is no mandate. It is evident that if I direct you to grant a delay to the debtor, in order that you may wait and not urge him to payment, and I state that the money will be at my risk; I think it is true that the entire risk of the claim should attach to the party giving the mandate. 15He also says that if a guardian directs that an obligation which he has incurred shall be accepted or approved, he will be liable to an action of mandate, that is, to one who has been his ward, or to his curator. 16Ad Dig. 17,1,12,16ROHGE, Bd. 7 (1873), S. 388: Rechtsverhältniß des Mandatars zu dem Dritten, an den er im vermeintlichen Auftrage des Mandanten eine Zahlung geleistet hat, im Falle des Widerrufs des Auftrages.If I direct money to be collected, and then change my mind, can an action on mandate be brought against me or against my heir? Marcellus says that the action on mandate will not lie, because the mandate is extinguished by the change of mind. If, however, you direct the money to be collected, and then forbid this to be done, and it is, nevertheless, collected; the debtor will be released. 17Ad Dig. 17,1,12,17Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 411, Note 5; Bd. III, § 567, Note 7.Marcellus also says that if anyone directs a monument to be erected to himself after his death, his heir can proceed in an action on mandate. But if the party who received the mandate erected the monument with his own money, I think that he can bring an action on mandate, even if he was not charged to erect the monument with his own money; for the action will also lie in his favor against him who directed him to employ his own money in constructing the monument, and especially is this the case if he had already made preparations for that purpose.

Ulpianus, On the Edict, Book XXXI. There is no doubt that the heir of a surety is entitled to an action on mandate, if he has made payment. If, however, he has sold the estate, and the purchaser has made payment, the question arises, will he be entitled to an action on mandate? Julianus says, in the Thirteenth Book, that the heir can bring such an action, because he is liable to be sued on the ground of purchase, to compel him to assign his rights of action, and therefore an action on purchase will lie, since he has the power to do so. 1Where a surety leaves two heirs, and one of them purchases the estate from his co-heir, and then pays to the stipulator all that the deceased became surety for, he can hold his co-heir liable either on the stipulation, or on the purchase. He will therefore be entitled to an action of mandate.

Ulpianus, On the Edict, Book XXXI. If anyone should direct me to incur some expense on my own property, and I do so, the question arises whether an action on mandate will lie. Celsus says, in the Seventh Book of the Digest, that he gave the following opinion, when Aurelius Quietus is said to have directed a physician with whom he lodged, to build, at his own expense, a tennis-court, a hot bath, and other buildings for his health in the gardens which he had at Ravenna, to which he was accustomed to repair every year. Celsus therefore held, that, after having deducted whatever had a tendency to render his buildings more valuable, an action on mandate could be brought against him to recover the balance.

Ulpianus, On the Edict, Book XXXI. Ad Dig. 17,2,5 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 405, Note 5.Partnerships are formed either generally, where all the property is held in common, or specially, for some particular kind of business, for the collection of taxes, or even for a single transaction. 1Moreover, a valid partnership can be formed by parties who have not the same means; since frequently one who is less wealthy, makes up by his labor what he lacks in property. A partnership cannot legally be contracted for the purpose of making a donation.

The Same, On the Edict, Book XXXI. For the partner of my partner is not mine.

The Same, On the Edict, Book XXXI. It is evident that if two partners place the slave of one of them in charge of the business of the partnership, the master of said slave will not be responsible except to the extent of the peculium; for both of them should be liable to the same risk, as they both appointed him.

Ulpianus, On the Edict, Book XXXI. And, therefore, if a partner transacts business relating to the partnership in a negligent manner, but in many respects benefits the partnership pecuniarily, the profit will not be set off against the negligence; as Marcellus stated in the Sixth Book of the Digest.

The Same, On the Edict, Book XXXI. As in the case of farmers of the revenue, as well as where there are several purchasers; for where they are unwilling to contend with one another, they are accustomed to purchase the property in common by means of messengers, and this is very different from a partnership. Therefore, where a ward enters into a partnership without the authority of the guardian, he will still be liable to an action on the ground of business transacted in common.

Ad Dig. 17,2,44ROHGE, Bd. 13 (1874), Nr. 102, S. 311: Wesen der Societät. Geschäftsunternehmung auf gemeinschaftlichen Gewinn und Verlust. Beiderseitiges Leisten.The Same, On the Edict, Book XXXI. If I should give you pearls to be sold, with the understanding that if you dispose of them for ten aurei you must pay me ten, but if you sell them for more, you can have the surplus; it seems to me that if this was done with the intention of forming a partnership, an action on partnership will lie, otherwise, one on a verbal contract can be brought.

Ulpianus, On the Edict, Book XXXI. If he has injured the partnership by his act; as, for example, if he has wounded or killed a slave belonging to it and who transacted its business.

The Same, On the Edict, Book XXXI. Ad Dig. 17,2,52 pr.ROHGE, Bd. 13 (1874), Nr. 102, S. 311: Wesen der Societät. Geschäftsunternehmung auf gemeinschaftlichen Gewinn und Verlust. Beiderseitiges Leisten.Where a tract of land adjoining two others is to be sold, and one of the parties asks another to purchase it so that he can transfer to him that part which joins his own premises, and soon after he himself purchases the tract, his said neighbor not being aware of the transaction; the question arises whether the neighbor has any right of action against him. Julianus stated that this involved a perplexing question of fact, for if the intention was that the neighbor should buy the land of Lucius Titius, and convey it to me, the neighbor would have no right of action against me who made the purchase; but if the intention had really been that a purchase of common property was to be made, I would be liable to an action on partnership to compel me to transfer to you the remainder of the land after having deducted that portion which I directed you to buy. 1Good faith is an important element in this action on partnership. 2The question arises whether a partner is only liable for fraud, or whether he is also liable for negligence? Celsus states in the Seventh Book of the Digest, that partners are responsible to one another for negligence as well as fraud. And he says that, if, in forming a partnership, one of them promised to furnish his skill and labor, as, for instance, where a flock held in common is to be pastured; or we give a field to a party to be improved, and from which the crops are to be gathered in common; in this case he will surely be liable for negligence, for the consideration is the value of his labor and skill. Where a partner damages the common property, it is held that he is also liable for negligence. 3Partners are not responsible for unforseen accidents, that is to say, for those that are unavoidable. Therefore, if a flock, after having been appraised, is delivered to a partner and it is lost through an attack by robbers, or by fire, the loss must be borne in common, if no fraud or negligence attaches to the party who received the said flock after it had been appraised. Where, however, it was stolen by thieves, the loss must be sustained by the party to whom it was entrusted, because he who received the flock after its valuation was obliged to take care of it. These opinions are correct, and an action on partnership will lie, provided that the flock, even though it had been appraised, was delivered to be pastured with the intention of forming a partnership. 4Two parties formed a partnership in the business of manufacturing soldiers’ cloaks. One of them, having undertaken a journey for the purpose of purchasing materials, fell among thieves, and his money was taken, his slaves were wounded, and he lost his private property. Julianus says that the loss must be borne in common, and that, therefore, the partner will be entitled to an action on partnership for half of the loss not only of the money, but also of the other property which the partner did not take with him, unless he made the journey for the purpose of purchasing merchandise on account of the partnership. Julianus very properly holds that if any expense was incurred for physicians the other partner is liable for his share. Hence, if property is lost by shipwreck, and merchandise was involved which it is not customary to transport by vessel, both parties must sustain the loss; for it, as well as the profits must be divided in common when it does not occur through the negligence of a partner. 5Where two bankers are partners, and one of them profits by a transaction separately, and appropriates the gain therefrom, the question arises whether the gain should be divided? The Emperor Severus gave the following reply in a Rescript to Flavius Felix: “Where a partnership to carry on a banking business has been expressly formed for that purpose, any profit which a partner obtains in any way not connected with said banking business, has been determined by law not to belong to the partnership.” 6Papinianus also says in the Third Book of Opinions: “Where brothers retain undivided the estates of their parents, in order to share among themselves the profits and losses of the same, any acquisitions which they obtain from any other source do not belong to the common fund.” 7He likewise states in the Third Book of Opinions that, having been consulted with reference to certain facts, he gave the following opinion: “An agreement was made between Flavius Victor and Vellicus Asianus that land having been purchased with the money of Victor, certain buildings should be erected by the labor and skill of Asianus, and, after the said buildings were sold, Victor should receive the money which he had invested and a certain sum besides, and Asianus, who had contributed his labor to the partnership, should be entitled to the remainder.” In this instance an action on partnership will lie. 8Papinianus also states in the same Book that where a voluntary partnership was formed between two brothers, the salaries and other compensations should be brought into the common fund of the partnership; although a son who is emancipated would not be compelled to give what he obtained in this way to his brother who remained under the control of his father, because, he says, even if he should remain under paternal control, these things would still be his private property. 9He also gave it as his opinion that a partnership could not last beyond the death of the partners; and therefore that anyone could not be deprived of the power of testamentary disposition, or of transferring his estate to a more distant cognate than others who were more nearly related. 10Papinianus also gave it as his opinion that, where a partner repaired certain parts of a building belonging to the partnership which was falling into ruin, or had become dilapidated, that he could, as a privileged creditor, either recover the principal expended together with the interest within four months after the work had been completed, or he could acquire said building as his own after that time, and that he had a right, nevertheless, to bring an action on partnership for the recovery of his interest; for example, if he preferred to obtain what belonged to him rather than the ownership of the property. An Address of the Divine Marcus fixed the term of four months for the interest to cease, because, after that time, the partner would acquire the ownership. 11Where persons form a partnership in order to purchase something, and afterwards the property is not purchased on account of the fraud or negligence of one of them, it is established that an action on partnership will lie. It is clear that if this condition is added, namely, “If the property is sold within a certain time,” and the period elapses without the partner being guilty of negligence, the action on partnership can not be brought. 12Cassius stated that the action on partnership is also available for the recovery of expenses incurred by one of the partners in repairing a water-course owned in common. 13Ad Dig. 17,2,52,13ROHGE, Bd. 12 (1874), Nr. 90, S. 274: Actio pro socio eines Gesellschafters wegen einer von ihm bewirkten Bezahlung eines Gesellschaftsschuld nach Auflösung der Gesellschaft.Mela also says that where two neighbors each contributed half a foot of land for the purpose of constructing a party-wall together, which was intended to support buildings belonging to each of them, and after said wall was built, one of them would not permit the other to use its support, an action on partnership would lie. The same authority held that, where two parties purchased a vacant lot to avoid their light being shut off, and it was delivered to one of them who would not allow the other to have what was agreed upon, an action on partnership can be brought. 14Where several partnerships are formed by the same persons, it is established that one judgment will be sufficient to decide all controversies which may arise with reference to them. 15Where one partner makes a journey connected with the business of the partnership, as for instance, for the purchase of merchandise, he will only be reimbursed for the expenses incurred by him on account of the partnership. He can, therefore, properly charge reasonable travelling expenses he incurred for hotel accommodations, for beasts of burden and the hire of vehicles, as well as for the transport of himself and his bales of goods, including the price of the same. 16Neratius says that where anyone is a general partner, he should place all his property in the partnership fund; and therefore he gives it as his opinion that the partnership will be responsible, under the Aquilian law, for any injury inflicted upon himself, or where any personal wrong has been inflicted upon him or his son. 17He also says that a partner, who has entered into a general partnership, is not required to bring into the common fund anything which he has acquired by unlawful means. 18On the other hand, it is also discussed by the ancient authorities whether a general partner who had had judgment rendered against him in an action for injury committed, could, by means of legal proceedings, compel the partnership to make good the judgment? Atilicinus, Sabinus, and Cassius answered that if he had been unjustly condemned, he would be entitled to recourse of this kind; but if the said injury resulted from some illegal act of his own, he himself alone must sustain the loss; which agrees with what Aufidius states was the opinion of Servius, that is, where there were two general partners, and one of them had judgment rendered against him for not appearing in court, he could not recover the amount of the judgment out of the partnership property; but if he, while present, suffered an unjust decision, he must be reimbursed from the partnership fund.

The Same, On the Edict, Book XXXI. Ad Dig. 17,2,58 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 406, Note 4.It should be considered whether an action on partnership can be brought where the property which one of the partners brought into the common fund has been lost. This point was discussed by Celsus in the Seventh Book of the Digest, with reference to a letter of Cornelius Felix as follows: “You have three horses, and I have one; we form a partnership with the understanding that you will take my horse, sell the four horse team and pay me one-fourth of the proceeds.” Therefore, if my horse dies before the sale is concluded, Celsus says that he does not think that the partnership will continue to exist, and that no portion of the value of your horses is due, for the partnership was not entered into to form a team of four horses, but to sell one. But if the intention of the parties was stated to be the formation of a four horse team, and the holding of the same in common, and that you should be entitled to a three fourths interest, and I to a one fourth interest in the same, there is no doubt that we are partners to that extent. 1Ad Dig. 17,2,58,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 406, Note 4.Celsus also discusses the point, where we have contributed money for the purchase of merchandise, and my money has been lost, at whose risk would this be? He says that if the money was lost after it had been placed in the partnership fund, which would not have taken place unless the partnership had been formed, both parties must bear the loss; just as in the case where money is lost which was being taken to some distant place for the purchase of goods. If, however, the money was lost before it had been placed in the common fund, but after you had destined it for that purpose, he says that you can recover nothing on that ground, because it did not belong to the partnership when it was lost. 2Where a son under paternal control enters into a partnership, and is afterwards emancipated by his father, the question is asked by Julianus whether the same partnership continues to exist? Julianus states in the Fourteenth Book of the Digest, that the partnership does continue to exist, for the reason that in contracts of this kind the beginning of the transaction must be considered. There is ground, however, for two actions, one against the father, and the other against the son. The one against the father should be brought for what he ceased to be liable for on the day before the emancipation, for he is not liable for the time the partnership existed after the emancipation; the one against the son, however, includes both periods, that is to say, the entire time embraced by the partnership; for he says that if the partner of the son was guilty of any fraudulent act after the emancipation of the latter, an action on that ground should be granted to the son and not to the father. 3If my slave form a partnership with Titius, and it continues after the alienation of the slave, it can be said that the first partnership was terminated by the alienation of the slave and that an entirely new one began, and, therefore, that an action on partnership will lie both in my favor and in that of the purchaser of the slave. An action should also be granted against me as well as against the said purchaser, for any causes which arose before the alienation of said slave; but with reference to anything which took place afterwards, an action should be granted against the purchaser alone.

Ulpianus, On the Edict, Book XXXI. According to Julianus, however, he can recover what he paid out for himself for medical services in a case of this kind; and this is true.

Ulpianus, On the Edict, Book XXXI. Ad Dig. 17,2,63 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 267, Note 8.The opinion of Sabinus is correct, namely, that if the parties are not general partners, but only associated for a particular purpose, or where they have acted in bad faith to avoid responsibility, they can still have judgment rendered against them to the extent of their resources. This is perfectly reasonable, as a partnership in some respects resembles a fraternity. 1It should be considered whether only the surety of a partner should be indemnified, or is this, indeed, a personal advantage to all? I think the latter to be the better opinion; if, however, the surety should undertake to defend the action of the partner, he can profit by it; for Julianus says, in the Fourteenth Book of the Digest, that the defender of the partner can only have judgment rendered against him to the extent of the resources of said partner. And he adds that the same rule applies to one who acts as a defender of a patron. This rule is also generally applicable to all those who are sued to the amount of the means which they possess. 2This exception, however, should not be granted to the father or master of a partner, if the partnership was contracted by the direction of either; because it will not be granted to the heir and other successors of the partner, for the reason that we do not accord the same privilege to heirs or successors not to have judgment rendered against them beyond the extent of their resources. 3But how can an estimate of the financial resources of a partner be made? It has been established that the indebtedness of the partner should not be deducted; and this Marcellus stated in the Seventh Book of the Digest; unless, as he says, the debts had been contracted with reference to the partnership itself. 4It must also be considered whether the partner should, in a case of this kind, furnish security for what he cannot pay, that is to say, make a bare promise to do so. I think that this is the better opinion. 5If, where there are three partners, one of them should bring an action against one of the others, and recover his entire share, and then another should bring an action against the remaining partner, but is unable to recover his entire share because the said partner is not solvent; the question arises whether he who failed to obtain all that he was entitled to, can bring an action against the one who received the entire amount of his share, for the purpose of making a division, that is to say, of placing all the shares upon the same footing, since it is unjust that one should obtain more and the others less from the same partnership? This opinion is founded upon equity. 6In order to determine whether a partner is able to pay the amount which he owes, we must take into account the time when the judgment was rendered. 7Anyone is held to be able to make payment who has committed a fraudulent act in order to avoid doing so, for it is not just for anyone to profit by his own fraud. This should be understood to apply to all those against whom suit is brought to the extent of their resources. If, however, a party is unable to make payment, not on account of fraud, but because of his own negligence, it must be held that judgment should not be rendered against him. 8An action on partnership can also be brought against the heir of the partner, even though he may not be a partner, for even if he is not one, he is, nevertheless, the successor to the profits of the partnership. We observe the same rule with reference to partnerships for the collection of taxes and others of the same kind, namely that the heir is not a partner unless he has been admitted to the partnership; still, all the profits of the partnership belong to him, to the same extent that he is responsible for the losses which may occur either during the lifetime of the partnership in the collection of taxes, or afterwards. This rule is not applicable in the case of voluntary partnerships. 9If one of two masters bequeaths a legacy, without his freedom, to a slave held in common, this legacy belongs entirely to the surviving partner. Nevertheless, the question arises whether he can bring an action on partnership, for the division of the legacy, against the heir of the deceased partner? Julianus says that Sextus Pomponius states that the opinion of Sabinus is that the legacy cannot be divided. Julianus says, that there are good grounds for this opinion, for what has been acquired has not been done by reason of the partnership, but on account of the share of the partnership in the slave. It is not necessary for a division to be made of what a partner does not acquire through the partnership, but by means of his own property. 10A partnership is terminated by the non-existence of those who compose it; by loss of its property; by the will of the partners; and by legal proceedings. A partnership, therefore, is held to be dissolved when either the persons composing it, the property belonging to it, the agreement of the partners, or judicial proceedings relating to it, come to an end. The partners cease to exist, through the alteration of civil rights either in its greatest, intermediate, or least degree, or by death. The property is held to be lost where none remains, or its condition is changed; for no one can be a partner in property which is no longer in existence, nor in such as has been consecrated for religious purposes, or forfeited to the State. A partnership is terminated by the will of the parties, by withdrawal.

The Same, On the Edict, Book XXXI. You asked me to loan you money, and as I did not have it, I gave you certain property to be sold that you might make use of the proceeds. If you did not sell said property, or you did sell it and did not take the price received as a loan, it is safer to proceed, as Labeo says, by an action for the interpretation of the contract, as if there had been a certain agreement entered into between us. 1If I should mortgage a tract of land for your benefit, and it should afterwards be agreed upon between us that you will furnish me a surety, and you do not do so; I say that the better plan will be to bring an action for the interpretation of the contract, unless some compensation is involved, for if it is, an action on lease will lie.

The Same, On the Edict, Book XXXI. Where a son under paternal control has administered a guardianship, and, after having been liberated, is guilty of fraudulent conduct; the question arises whether an action on guardianship on this ground will lie against the father. It is just that the father should only be liable for the fraud of his son where the latter committed it before being emancipated.

The Same, On the Edict, Book XXXI. If the services of a broker are employed for the purpose of making a note, as many persons are accustomed to do, let us see whether he will be liable as a mandator. I do not think that he will be liable, for although he may have praised the person for whom he acts, still, by doing so, he has reference rather to the debt to be contracted than to an act in the capacity of mandator. I hold that the same rule will be applicable, even if he has received something by way of compensation, and that an action on hiring and leasing will not lie. It is clear that if he deceives the creditor by means of fraud and cunning, he will be liable to an action on the ground of fraud.