Ulpianus, On Sabinus, Book XXX. Although it is true that a genuine agent can bring anything before a court, still, where a party who is not an agent joins issue, and his principal afterwards confirms what he has done; it is held that by retroactive effect, the matter has been properly presented to the court.

Ulpianus, On Sabinus, Book XXX. One person can petition for the appointment of an arbiter in an action for the partition of an estate; for it is clear that a single heir can appeal to a judge, and therefore one heir can petition for an arbiter, even though the others are present and do not give their consent.

Ulpianus, On Sabinus, Book XXX. In an action for the partition of common property nothing is to be considered except the division of the property itself which is held in common; and where any damage is caused to, or committed against any of said property, or where loss is sustained by any of the joint-owners, or where anything derived from the common property came into his possession. 1Where the parties themselves have entered into an agreement with one another without fraud, the judge must cause it to be upheld in the first place in an action for the partition of an estate or in one for the division of common property.

Ulpianus, On Sabinus, Book XXX. It is greatly advantageous to all parties for a judge, in dividing tracts of land, to follow whatever is most beneficial, or what the litigants may prefer.

Ad Dig. 16,2,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 288, Note 12.Ulpianus, On Sabinus, Book XXX. Whatever is due in consequence of a natural obligation can also become the subject of set-off.

Ulpianus, On Sabinus, Book XXX. It is lawful to contract a simple partnership, and then, if no other provision is made, it is held to be one including everything acquired by gain, that is to say, where any profit is obtained from purchase, sale, leasing, and hiring.

Ulpianus, On Sabinus, Book XXX. Sabinus does not add that such a partnership should include an inheritance, a legacy, a donation mortis causa, or non mortis causa, and this is perhaps for the reason that these things do not come without a cause, but are granted on account of merit.

Ulpianus, On Sabinus, Book XXX. Quintus Mucius renders the same opinion with reference to inheritances, legacies, and donations.

Ad Dig. 17,2,14ROHGE, Bd. 11 (1874), Nr. 87, S. 264: Auflösung der Societät durch Erklärung des Austritts eines Socius aus genügendem Grunde.Ulpianus, On Sabinus, Book XXX. If it is agreed by the partners that the property in common shall not be divided until a certain period has elapsed, they are not held to have agreed not to withdraw from the partnership before that time has passed. What would be the effect, however, if an agreement was made not to withdraw? Would it be valid? Pomponius very properly states that such an agreement would be void, for if it were not made, and one of the partners should withdraw at an inopportune time, an action on partnership will lie against him; and even if an agreement is made not to withdraw from the partnership within a certain period, and a partner should withdraw before it had elapsed, his withdrawal would be valid; nor would he be liable in an action on partnership who withdrew on the ground that the condition was not fulfilled under which the partnership was formed, or that his partner had caused him so much injury and loss that it was not advantageous for him to endure it;

Ulpianus, On Sabinus, Book XXX. The same rule applies where a partner withdraws from the partnership because he, even against his will, is obliged to be absent for a considerable time in the public service; although sometimes he can be opposed, since he may be able to conduct the transactions of the partnership through another person, or charge his partner with it; still, this cannot be done unless his partner is especially qualified for the business, or another can be easily obtained for the management of the partnership, by the partner who is obliged to be absent. 1Therefore, where it is agreed that the partnership property is not to be divided, unless some good reason arises, it cannot be sold, or disposed of in any other way so that a division may be made. And, in fact, it may be said that a sale is not absolutely forbidden, but an exception can be filed against the purchaser if he divides the property before the vendor had a right to do so.

Ulpianus, On Sabinus, Book XXX. Where anyone is admitted into a partnership he alone is his partner who admitted him. This is perfectly proper, for, since a partnership is formed by consent, he cannot be my partner whom I am unwilling should be such. What would be the case, however, if my partner should admit him? He would be his partner alone;

The Same, On Sabinus, Book XX. And whatever such a partner may obtain from our partnership he will share with the one who admitted him; for we will not hold our share in common with him, and he who admitted him will be responsible for him to the partnership; that is to say, the said partner will have a right of action against him, and will pay to the partnership whatever he recovers.

Ulpianus, On Sabinus, Book XXX. Pomponius is in doubt as to whether it will be sufficient for the said partner to assign to his associates the right of action which he has against the newcomer, in case of loss, if the latter should not prove to be solvent, or whether he should fully indemnify them. I think that he who admitted the new partner will be liable to indemnify them entirely, because it would be difficult to deny that he was to blame for doing so. 1Ad Dig. 17,2,23,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 258, Note 4.He also asks whether any profits which may have accrued on account of the admission of the said partner can be set off against a loss which was caused by his negligence? He answered that they should be set off, which is not correct; for Marcellus states, in the Sixth Book of the Digest, that, if the slave of one of several partners having been placed in charge of the affairs of the partnership by his master, conducts them in a negligent manner, he who placed him in charge must make good the loss to the partnership; nor can any profits which may have accrued to the partnership through the slave be set off against the loss. He also says that the Divine Marcus decided that one partner could not say to another: “Relinquish the profits which have accrued through your slave, if you desire to be indemnified for the loss.”

Ulpianus, On the Edict, Book XXX. Ad Dig. 17,2,29 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 405, Note 16; Bd. II, § 406, Note 13.Where the apportionment of shares is not mentioned in the formation of the partnership, it is held that they are equal. If, however, it should be agreed upon that one should have two shares, or three, and another, one, will this be valid? It is established that it will be, provided that the parties have furnished more money or labor to the partnership, or where any other good reason whatsoever exists. 1Cassius holds that a partnership can be formed in such a way that, while one of the partners will not be liable for any loss, the profit will be common to all. This, however, will only be valid (as Sabinus says) where the value of the services of the partner will be equal to the loss; for it frequently happens that the industry of one partner is of greater advantage to the partnership than the capital invested. The same rule applies if one partner alone makes a voyage by sea or land, as only he is exposed to danger. 2Aristo states that Cassius was of the opinion that a partnership could not be formed in such a way that one partner would take the profit and the other assume the loss, and a partnership of this description is usually called a “leonine” one. We, also, think that a partnership of this kind is void, where one of the partners takes the profit, and the other does not receive any gain at all, but sustains the loss; a partnership is extremely unjust where one partner suffers the loss, and receives no benefit whatever from it.

Ad Dig. 17,2,31ROHGE, Bd. 13 (1874), Nr. 102, S. 311: Wesen der Societät. Geschäftsunternehmung auf gemeinschaftlichen Gewinn und Verlust. Beiderseitiges Leisten.Ulpianus, On Sabinus, Book XXX. In order for an action on partnership to be brought, the partnership must intervene in the proceedings, for it is not sufficient for the property to be in common, unless the partnership appears as a party to the suit, for an action can be brought in common even outside the partnership; as, for instance, where we happen to own property together without the intention of forming a partnership, which occurs where property is bequeathed to two parties, and also where an article is bought by two persons at the same time; or where an estate or donation passes, or is given to us in common, or where we purchase separately the shares of two joint-owners, without the intention of becoming partners:

Ulpianus, On Sabinus, Book XXX. No one can enter into a partnership in such a way that his heir may become a partner therein. An action, however, can be brought against the heir of a partner to compel him to fulfill the obligation of the deceased;

The Same, On Sabinus, Book XXX. An action for theft on account of common property can be brought against a partner where, either through fraud or malicious intent, he has removed said property or disposed of it for the purpose of concealment, but he will also be liable to the action on partnership, for one action does not destroy the other. The same rule is applicable to all bona fide actions.

Ulpianus, On Sabinus, Book XXX. If I bring suit for the recovery of stolen property, the right of action on partnership is extinguished, unless I have still further interest in the matter. 1Where a partner has caused damage to property held in common, Celsus, Julianus, and Pomponius say that he will be liable under the Lex Aquilia;

Ulpianus, On Sabinus, Book III. It is also very properly added: “That an action for theft will only lie if the partner removed the property fraudulently, and with malicious intent,” because if he did so without malicious intent he would not be liable to an action for theft. And, indeed, it is generally held that a party who owns a share of the property would prefer to lawfully enjoy the same, rather than to form an intention to steal it. 1Therefore, let us see whether he will be liable under the Lex Fabia; and, although reason suggests that he should not be held responsible, still, if he has kidnapped the slave, or concealed him, he will be liable under the Lex Fabia.

The Same, On Sabinus, Book XXX. It is clear that the proceeds of a theft or of any other breach of the law should not be placed in the partnership property, because a partnership in crime is base and dishonorable. Still, it is evident that if property obtained in this way becomes a part of the common fund, the gain must be divided:

Ulpianus, On Sabinus, Book XXX. Therefore, if a party who committed an illegal act is sued, he can either surrender only what he misappropriated, or he can do this with a penalty. He can give up the property, which was taken, alone, in case the other partner was ignorant that he had placed it with that of the partnership. If, however, he was aware of the fact, he, also, will be liable to the penalty, for it is but just that he who participated in the profit should also share the loss.

Ulpianus, On Sabinus, Book XXX. Pomponius says the fact must not be lost sight of that these rules only apply where a partnership has been formed for an honorable and lawful purpose; for if it has been formed in order to break the law, it will be void, as it is generally held that there can be no partnership in matters which are dishonorable.

Ulpianus, On Sabinus, Book XXX. For it arises from the nature of things, that there are more business transactions than terms to designate them.

Ulpianus, On Sabinus, Book XXX. Ad Dig. 19,5,13 pr.ROHGE, Bd. 13 (1874), Nr. 102, S. 311: Wesen der Societät. Geschäftsunternehmung auf gemeinschaftlichen Gewinn und Verlust. Beiderseitiges Leisten.If I give you property to be sold for a certain price, with the understanding that if you sell it for more you can keep the surplus, it is held that neither an action on mandate, nor one on partnership will lie, but that one in factum should be brought, as in the case of voluntary agency; for the reason that a mandate should be gratuitous, and a partnership is not held to be formed with reference to a person who does not admit you as a partner in the sale, but reserves a certain portion of the proceeds for himself. 1Julianus states in the Eleventh Book of the Digest: “If I give to you the ownership of an unoccupied tract of land belonging to me, on condition that after having built a house thereon, you will convey to me a share in the same; this transaction is not a sale, because I receive a part of my own property instead of the price; nor is it a mandate, because it is not gratuitous, nor a partnership, for the reason that no one, in entering into a partnership, ceases to be the owner of his own property.” But if I give you said land for the purpose of instructing a boy, or to pasture a flock, or for the support of a boy with the understanding that if it should be sold after the lapse of a certain number of years, the purchase-money shall be divided between us; this is a very different transaction from that relative to the unoccupied land, because in this case he who formerly owned the property does not cease to be the proprietor of the same, and therefore an action on partnership will lie. If, however, I should transfer to you the ownership of a young slave, the same rule will apply, as in the case of the land, because the ownership ceases to vest in the former proprietor. What, then, is the rule? Julianus thinks that an action in factum should be granted, that is to say, one for the interpretation of the contract. Hence, if the party does not transfer the ownership of the land, but permits you to build upon it with the understanding that either the land, or the price of the same, if sold, shall be divided, this will be a partnership. The same principle applies where the proprietor transfers the ownership of a portion of the land, reserving that of the remainder, and permits a house to be built under the same condition.

Ulpianus, On Sabinus, Book XXX. With reference to the division of the dowry during the year in which the divorce took place, the question arises whether the time shall be computed from the day of marriage or from that on which the property was delivered to the husband. Therefore, where the profits are to be retained by the husband, neither the day when the dowry was constituted nor the day of the marriage should be taken into consideration, but that on which the land given by way of dowry was first delivered, that is to say when possession was given.

Ulpianus, On Sabinus, Book XXX. It has been decided that a ward can lose possession without the authority of his guardian, but he does not cease to possess the property by intention, as he does by the performance of a corporeal act, for he can lose what depends upon an act. The case is different where he desires to lose possession by intention, for he cannot do so.

Ulpianus, On Sabinus, Book XXX. Payment can legally be made to a genuine agent. We should consider a genuine agent to be one who has been specially authorized, or to whom the management of all the property of the principal has been entrusted. 1Sometimes, however, payment is legally made to a person who is not an agent; as, for instance, to one whose name is inserted in the stipulation, where someone stipulates for payment for himself or for Titius. 2Ad Dig. 46,3,12,2ROHGE, Bd. 4 (1872), S. 303: Zahlung an einen zur Geldempfangnahme beauftragten Gehilfen nach Widerruf der Vollmacht.ROHGE, Bd. 10 (1874), S. 381: Wirkung des theilweisen Widerrufs bez. der Beschränkung einer bisher unbeschränkten Vollmacht auf den Verkehr mit dritten Contrahenten.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 307, Note 3.If, however, anyone should direct me to pay Titius, and afterwards forbid him to receive the money, and I, not knowing that he had been forbidden to receive it, pay him, I will be released; but if I am aware of it, I will not be released. 3The case is different, if you suppose that someone has stipulated for himself, or for Titius. For even if he forbids me to pay Titius, I will, nevertheless, be released if I pay him; because the stipulation has a certain condition which the stipulator cannot alter. 4But even if I pay someone who is not a genuine agent, but the principal ratifies the payment, a release will take place; for ratification is equivalent to a mandate.

Ulpianus, On Sabinus, Book XXX. If anyone should make payment under the condition that he can recover the money by a personal suit, if the principal does not ratify the act of the agent, and he does not ratify it, an action will lie in favor of him who made payment. 1Ad Dig. 46,3,14,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 443, Note 5.There are some guardians who are called honorary; there are others who are designated for the purpose of giving information; others still, are appointed to transact business; or the father prescribes this, so that, for instance, one of them shall administer the guardianship, or the transaction of business is entrusted to a single guardian, with the consent of the others; or the Prætor issues a decree with reference to this effect. Therefore, I say that no matter to what kind of a guardian payment may be made, even to an honorary guardian (for responsibility attaches to him), it is properly done; unless the administration of the guardianship has been forbidden him by the Prætor, for if this is the case, payment cannot legally be made to him. I hold that the same rule applies where anyone knowingly pays guardians accused of being suspicious, for the administration of the guardianship is, in the meantime, considered to be forbidden them. 2If payment is made to a guardian who has been removed, the debtor pays one who has ceased to be a guardian, and for this reason he will not be released. 3But what if he has paid someone in whose place a curator should be appointed; for example, a man who has been perpetually, or temporarily banished? I say that if he pays him before the curator has been substituted for him, he should be released from liability. 4Even if he has paid a guardian who is about to be absent on public business, the payment will be legal. And, indeed, he can pay him during his absence, provided another has not been appointed in his place. 5Payment may properly be made to a single guardian, whether the guardians are legal or testamentary, or have been appointed as the result of a judicial inquiry. 6Let us see whether payment can legally be made to a guardian appointed for the purpose of giving information, because he was appointed to advise his fellow-guardian. But, as he is a guardian, and payment to him has not been prohibited, I think that if it is made, a release will take place. 7Payment may properly be made to the curator of an insane person, as well as to the curator of one who cannot take care of himself, either on account of his age, or for any other good reason. It is, however, settled that payment can legally be made to the curator of a ward. 8It is clear that a ward cannot pay without the authority of his guardian. If he should pay money, it does not become the property of him who received it, and can be recovered by an action. It is evident that if it has been expended the ward will be released from liability.

Ulpianus, On Sabinus, Book XXX. Anyone who has the right to alienate property against the consent of a person who is present has a much better right to do so when he is ignorant of the fact, and absent.