ix. societas Flashcards
SOCIETAS
= contract by which tow or more persons unite to pursue a common economic goal.
→ not a legal entity speared from partners!
→ consensual
→ synallagmatic: partners reciprocally make performance
→ has to specify common goal and the contributions of each partner
claims arising from SOCIETAS
ACTIO PRO SOCIO (BONAE FIDEI IUDICIUM)
contribution of partners in SOCIETAS
- freely determined by parties
- in case of doubt, they hold equal shares: both profits and losses
- if only one holds losses and only one the profits = breach of AEQUITAS → SOCIETAS LEONINA, contract is invalid
liability of partners in SOCIETAS
- liable for DOLUS, CULPA, in special cases, also CUSTODIA
- measured against diligence which the partner usually exhibits in his own affairs (DILIGENTIA QUAM IN SUIS REBUS) = subjective standard (CULPA IN CONCRETO)
- loss caused by negligence may not be balanced out with his profit in another area of the partnership
privilege of partners in SOCIEATS
BENEFICIUM COMPETENTIAE = SOCIUS is only condemned to pay as much as he can afford (ID QUOD FACERE POTEST)
COMPENSATIO LUCRI CUM DAMNO
= reducing damage payments by subtracting profits (modern tort law: set-off of benefits) this is NOT the case for the SOCIETAS.
assumption of risk
- loss should be borne jointly if not caused by fault of a partner and associated with business purpose
- partner affected by loss can bring an ACTIO PRO SOCIO for half of the loss
grounds for resolution of a partnership
a. death or insolvency one of the partners
b. aim achieved
c. impossible to achieve purpose
d. expiry of time limit if there was one
e. termination by one party
termination (RENUNTATIO) of a partnership
- must not be breach of BONA FIDES, eg. untimely termination → compensation for loss incurred to due to termination
- if formed for limited time, termination can only be due to important reasons (essential condition is not satisfied, one partner causes too much damage)
two types of termination
- termination upon proper notice: typical legal remedy for ending contractual obligations
- termination upon extraordinary notice: for important reasons premature termination even if contract was for fixed term and rules it out
types of contribution arrangements
QUOAD USUM: partner retains ownership alone in asset, other is granted right of use
QUOAD SORTEM: partner retains ownership in relation to third parties, but asset may be regarded as partnership asset
QUOAD DOMINIUM (CONDOMINIUM): transfer joint ownership to all partners, each owning defined share
→ ACTIO COMMUNI DIVIDUNDO!
