Front Page Titles (by Subject) 56.: WILLIAM MITCHELL, EARLY FORMS OF PARTNERSHIP 1 - Select Essays in Anglo-American Legal History, vol. 3
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56.: WILLIAM MITCHELL, EARLY FORMS OF PARTNERSHIP 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 3 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1909). Vol. 3.
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EARLY FORMS OF PARTNERSHIP1
DURING the Middle Ages contracts of partnership were common, and at their close companies with freely alienable shares had come into existence. In the early centuries the most common form of partnership was the “commenda.” This was a partnership in which one of the parties supplied the capital either in the shape of money or goods, without personally taking an active part in the operations of the society, while the other party supplied none or only a smaller fraction of the capital and conducted the actual trade of the association. This form of partnership was especially used in maritime trade and was often confined to single ventures. Its popularity was due to the fact that it enabled the capitalist to turn his money to good account without violating the canonical laws against usury, and the small merchant or shipper to secure credit and to transfer the risk of the venture to the capitalist. The nature of the contract will best be shown by quoting one or two examples of the vast number of these contracts that have been preserved.
The following is a Marseilles contract of the year 1210:
“Notum sit cunctis quod ego Bonetus Pellicerius confiteor et recognosco me habuisse et recepisse in comanda, a te Stephano de Mandoil et a te Bernardo Baldo, xxv l. regalium coronatorum . . . quas ego portabo ad laborandum in hoc itinere Bogie, is nave de Estella, vel ubicumque navis ierit causa negotiandi, ad vestrum proficuum et meum, ad fortunam dei et ad usum maris, et totum lucrum et capitale convenio et promitto reducere in potestatem vestri et vestrorum fideliter, et veritatem inde vobis dicam, et ita hoc me observaturum in mea bona fide per stipulationem promitto, et in omni lucro quod Deus ibi dederit, debeo habere et accipere quartum denarium.”1
Such contracts were not rare in Italy in the 12th century and the contracts are to the same intent as those of Marseilles in the 13th century. “March 1155. Ego Petrus de Tolosi profiteor me accepisse a te Ottone Bono libras centum viginti septem quas debeo portare laboratum Salernum vel ex hinc apud Siceliam, et de proficuo quod ibi deus dederit debeo habere quartam et reditum debeo mittere in tua potestate.”2
Often when both parties to the contract contributed to the capital of the association the partnership was termed “collegantia,” or “societas,” to distinguish it from the more common form of commenda in which the commendator alone supplied the funds.
“Bonus Johannes Malfuastus et Bonus Senior Rubeus contraxerunt societatem, in quam Bonus Johannes libras 34 et Bonus Senior libras 16 contulit. Hanc societatem portare debet Alexandriam laboratum nominatus Bonus Senior et inde Januam venire debet. Capitali extracto proficuum et persone (?) per medium. Ultra confessus est nominatus Bonus Senior quod portat de rebus nominati Boni Johannis libr. 20 sol. 13 de quibus debet habere quartam proficui—. Juravit insuper ipse Bonus Senior quod supradictam societatem et commendacionem diligenter salvabit et promovebit societatem ad proficuum sui et Boni johannis et commendacionem ad proficuum ipsius Boni johannis et quod societatem omnem et ipsam commendacionem et proficuum in potestatem reducet ipsius Boni Johannis.”3
But whether the commendator alone or both parties contributed to the capital, the association remained essentially of the same character. The commendator in both cases was a kind of sleeping partner, and it was left to the “tractor” to carry out all the necessary operations. Though the partnership was generally formed for the purpose of a definite speculation, it was also formed for an indefinite series of commercial transactions, or for as indefinite or sometimes a definite time, which was occasionally as long as 10 years.1
As a rule the commendator who supplied the capital took the risk of the transaction; if the goods were lost he could not recover the amount he had advanced, provided that the contract contained the usual clause “ad risicum et fortunam Dei, maris et gentium,” or its equivalent. The usual share in the profits of a tractator who brought no capital into the partnership was a quarter, while in the case where he contributed to the general fund, his share of the profits amounted to a half. It is hard to tell whether the “tractator” in early times always traded in his own name, though there is no doubt that in later times he did.2 Pertile holds the view that originally the tractator was regarded as a mere factor of the commendator who was responsible for the acts of the tractator, but that gradually in the course of time the principle was established that he was only responsible to the amount of the capital which he had advanced.3 In Florence this principle was definitely established by statute in 1408. In the medieval commenda was represented both the dormant partner and the principle of limited liability of modern times. The commenda was not confined to England:4 it existed during the Middle Ages in Germany and Scandinavia.5 In cases where there were several commendators who entrusted their capital to one or more tractators, the latter began to assume a more independent position towards commendators. Contracting in their own name the managers were responsible for the debts of the association, while the commendators were freed, in Florence as early as 1408, from all liability beyond the amount of their quota. This type of commenda was a natural development of the simple original type in which there were but two persons involved,—a single commendator who advanced the capital to a single tractator; but it was an important development, and in the 16th century it was regulated in Italy by several city statutes and in the following century in France by regulation.1 Thus regulated the society contained both members with limited liability and members with unlimited liability, and it was the latter that controlled the administration of the society. The older and simpler form of commenda, however, existed side by side with the newer and more complex type. Of the newer type the modern “Société en commandite” is the historical descendant and it is characterised by the same essential features, the existence of two classes of members, the one with a responsibility limited to the amount of the capital they have contributed, and the other with an unlimited liability for the debts of the society, the administration of which lies solely in their hands.2 On the other hand the commendator of the older and simple type of commenda has his counterpart in the dormant partner of modern commercial law.
But side by side with the commenda there existed throughout the Middle Ages a closer kind of partnership in which the partners were normally coordinate members of the association with the same privileges and responsibilities. The usual expression for this type of society was “compagnia” or “societas,” and the firm was generally designated by the name of one of its members with the addition of the phrase “et socii,” or the like. It became an essential feature of this form of partnership that the partners were all of them responsible individually for the debts of the firm.3 At no time in Italy was the power of partners to bind by contract their fellow partners in practice denied.1 The principle of direct representation was thus admitted, and Baldo writing in the 14th century declared “ex consuetudine mercatorum unus socius scribit nomen alterius.”2 Baldo however adds that this was “abusio.” This was an important advance upon the principles of both Roman and old Germanic law, neither of which recognised sufficiently the principle of direct representation. “All this view of the law,” says Kohler writing of the principle of representation, “appears altogether artificial and cannot well appeal to primitive man: he cannot understand a transaction (based) upon the will of another; even a developed law like Roman law has only developed ‘representation’ very imperfectly and German law long resisted it.”3 Medieval merchants and mercantile usage recognised the principle of representation; they recognised it not only in the right of one partner to make contracts binding upon the other partners of a firm, they also recognised it in the medieval bills of exchange with their clauses to order or bearer.
As the names of all partners did not appear4 in the name of the firm, but were simply referred to generally in the phrase “et socii” or some equivalent expression, it became important to determine who were to be legally regarded as members of the firm. In early Italian statutes actual common trading of the persons concerned, or general notoriety, sufficed to prove the partnership: “et intellegantur socii qui in eadem statione vel negotiatione morantur vel mercantur ad invicem.”1 In doubtful cases the books of the firm were consulted.2 But general notoriety and the books of the firm were not found sufficient either to protect the general public against partners who denied the partnership altogether or who asserted that the partnership had been dissolved, or to protect merchants from a general liability for all the debts of a trader with whom they occasionally combined for the purpose of a common speculation. Dissolution of partnerships was to be valid only if effected “per instrumentum publicum.” “If any one practising in the Calimala craft,” says a Florentine gild statute of 1301, “or having a share in any ‘societas’ of that craft has renounced or shall renounce it in the future, such renunciation shall not be valid nor be admitted by the consuls, unless he shall show that he withdrew from that firm by means of a public document, and the consuls shall have that document published throughout the whole craft.” Registration of partners became usual; from the 14th century onwards such registers were kept not merely by the gilds but by the city authorities; and the registration required, as a rule, “the direct intervention either personally or by special procuration of all the members of the firm.”3
It has been stated that one partner could represent the rest and make contracts binding upon the whole firm, and that this was an advance upon the principles of Roman and Germanic law, which only recognised representation to a limited degree. But though a single partner could thus represent the firm, originally it was as a rule only in virtue of special procuration that he was privileged so to do. In the medieval contracts of partnership the partners often gave one another by procuration the right to represent and bind the firm. In the absence of such clauses in the contract creditors of the firm for a debt contracted by an individual partner could in some places only make good their claim against the firm as a whole, if the debt had been recognised as a debt of the firm, as by entry in the firm’s book, or employment of the money or goods for the common purposes of the firm. Simply in his capacity as partner a merchant had not everywhere in the early centuries of the Middle Ages a right to bind his copartners. “Whoever in the city or district of Florence,” declares a Florence gild regulation of the year 1236, “has sold cloth or other things pertaining to trade to any one of this gild cannot seek nor sue for the money or price of the sale from any of the partners of the buyer, or from any one of his firm, unless the money shall be found written in the books of the buyer’s firm as payable for the price of that sale.”1 Similarly the gild statute of Verona for the year 1318 required the tacit consent of the other partners or an express promise on their part to pay—“nec praejudicet etiam stando in statione et essendo socius palam; dummodo non esset praesens cum socio ad accipiendam mercandiam et non promitteret de solvendo eam.”
As late as the 15th century the jurist Alexander Tartagnus denies the responsibility of the other partners, unless the contract had been made with full powers “nomine societatis.”2 Slowly however the principle gained ground that a partner had as partner the right to make contracts binding upon his firm. In all probability this change was due to the frequency with which the individual partner was entrusted with this power by special procuration. Thus in one of the Marseilles documents of the 13th century which have been already referred to, two partners concede full powers to the third. “Nos Dietavivo Alberto et Guidaloto Guidi, Senenses facimus, constituimus, ordinamus, Bellinchonum Charrenconi, consocium nostrum, absentem, nostrum certum et generalem procuratorem in omnibus nostris negotiis peragendis, . . . promittentes nos ratum perpetuo habitaturos quicquid cum eo vel per eum actum fuerit in praemissis, sub obligacione omnium bonorum meorum praesentium et futurorum.”1 Such procurations were exceedingly common,2 and the great Calimala Gild of Florence went so far as to instruct (1301) all its members when they sent any one abroad to transact business to provide them with a special or general procuration. The result was that in actual practice the partner did have power to bind the firm, and that gradually this power was regarded as a matter of course. During the 14th and 15th centuries numerous Italian statutes recognised the responsibility of the other partners for the debts and contracts made by an individual member of the firm. But both the doctrine of the great civil jurists and the decisions of isolated commercial courts were long opposed to this new view of the position of the partner. Thus the decisions of the “Rota of Genoa” only go so far as to say that whatever is written by one of them having the “facultas” of using the name of the firm is said to be written by the firm itself, while another decision declares most plainly that such “facultas” is not to be taken as a matter of course. By the 17th century however the power of an individual partner, though without special procuration, to act in the name of his firm was admitted by the civil jurists.3 The unlimited liability of the partner for the debts of the firm was, like the right of the partner as partner to represent the firm, of gradual growth, and was not in the early centuries of the Middle Ages universally enforced by the law.4 In medieval contracts unlimited liability was indeed often stipulated and was in some places a maxim of the law: in the fairs of Champagne, for example, the unlimited responsibility of partners was under certain conditions expressly recognised; the “usage of the fairs” declared that a partner “oblige tous leurs biens (i. e. the partners) pour cause de l’administration qu’il a et qu’il semble avoir, et plus, se aulcun des compaignons se boute en franchise ou destourne ses biens ou les biens de sa compagnye, il est oblige et tout li autre compaignon qui paravant cette fuite ou tel destournement des biens n’estoient obligez en corps et en biens par la coustume, stille et usaige des foires notoires.”1 It was not however till towards the close of the 16th century that the solidarity of partners was in Italy generally recognised. “Only gradually and without the support of positive law the liability of every partner ‘in solidum’ came through mercantile usage to be enforced in statutes and judicial decisions. This liability was repeatedly recognised in the decisions of Genoa. Since that time it was never a matter of doubt,”2 and in the 17th century the jurist Ansaldus who, as auditor of the Roman Rota, must have had a thorough acquaintance with judicial decisions in commercial cases, recognised this unlimited liability and declared that in the first place the creditor had recourse to the capital of the firm, and only in the second place could he avail himself of the unlimited liability of the individual partner.3
The commenda and the societas had an independent origin and an independent development. Originally the commenda was a purely speculative enterprise, confined mainly at first to maritime trade in which one partner found all or most of the capital and the other traded in his own name. The societas on the other hand had its root in the more permanent association of the family or of persons who had full confidence in each other for the purpose of carrying on, in common, industrial and commercial enterprises in city or town. Both extended the scope of their application, commendas were formed for inland trade and partnerships of the collective type for maritime commerce. Each however developed on its own lines. In the commenda, where from the first the capitalist must have as a rule remained unknown to the merchants who traded with the active partner, the limited liability of the capitalist and the unlimited liability of the active partner were before long firmly established, while in the open “societas” the right of the individual partner to represent and bind the firm on the one hand, and on the other his unlimited liability for its debts, were finally recognised. Both types, modified in points of detail, have passed into modern commercial life. If the commenda has developed into the “Société en commandite,” the “societas” has its historical counterpart in the modern “Société en nom collectif” and the Offene Gesellschaft.
A third type of partnership, that of joint-stock companies with the capital in the shape of freely alienable shares, with a liability limited to the amount of capital represented by the share, and with an administrative governing body composed of shareholders in which the majority decided, was in process of formation during the Middle Ages.
To the origin of this type of partnership many causes contributed, but the decisive cause was the growth of colonial enterprises in Italy in the 15th century, and in Holland, France and England in the 16th and 17th centuries. A recent German writer1 has attributed a great influence upon the birth and development of these companies to a peculiar form of partnership with limited liability that in shipping enterprises was common both in Northern and Southern Europe during the earlier part of the Middle Ages. At Amalfi, for example, in the 11th century the owners, the captain, and even the common sailors all had a share in the profits of the voyage and formed an association whose liability was strictly limited.2 But it can hardly be said that the adoption of this peculiar form of partnership had a great influence upon the formation of joint-stock enterprises. No doubt it offered an example of a partnership with limited liability, but so did the far more common commenda; and the essence of a joint-stock company does not consist in the principle of limited responsibility, but rather in the prolongation of the corporate existence and organisation of the company beyond the life of its members and in the free negotiability of the shares.
Of greater influence were the public loans1 raised by Italian cities during the 13th and following centuries. The loans were divided into shares (luoghi) and the names of the owners were registered in special books. The shares not only passed to the heirs in case of the owner’s death, but could be freely bought and sold; and as negotiable shares, even though they cannot in any sense be regarded as shares in a commercial speculation, they showed the keen commercial mind of the Italian an expedient that might be adopted for raising capital for commercial as well as for military purposes. It was in Genoa that the first joint-stock companies arose. To cover the cost of the conquest of Chios and Phocaea (1346) a loan was raised by the Genoan state and as usual was divided into shares of 100 lires, and the shareholders were given the “dominium utile” of the conquered lands. This Colonial company, incorporated with the bank of St. George in 1513, continued to exploit the resources of the two islands until their conquest by the Turks in the 16th century. Far more important however was the founding of the great bank of St. George in 1407 when the various state loans were consolidated into a single state debt. As security for the interest the city granted important privileges to the holders of the new consolidated stock, which was divided into shares of 100 lires. The stockholders were granted the right (1408) to carry on banking business, and especially after 1453 the administration and exploitation of important Genoan colonies passed into their hands. The creditors of the Genoan state had become the shareholders of a great colonial company which ultimately governed and administered Corsica, Kaffa and the greater part of the foreign dominions of Genoa.2
Colonial expansion in England, France and Holland led, though much later, to the creation of companies similar to that of Genoa. The Compagnie des Iles d’Amérique, which seems to be the earliest example in France, was created in 1626 and was rapidly followed by others of the same type.1 The Dutch East India Company (1602) was but little earlier. In England the East India Company2 received a royal charter in the opening year of the 17th century. At first the company could hardly be considered as a joint-stock company; for in the early years of its history the voyages were separate and not necessarily permanent ventures of the subscribers, who contributed varying amounts to the capital required for the expedition and received a proportionate share of the proceeds when the expedition returned. A shareholder in one of the early expeditions might or might not be a shareholder in the next. In 1613 the first so-called joint-stock was subscribed; but the term is misleading; it was not a subscription of permanent capital. As late as the middle of the 17th century subscribers wished to carry on separate trade in ships of their own, but the company protested and in 1654 a decision of the council of state was given “in favour of joint-stock management and exclusive trading.”
It would seem that joint-stock companies took their rise owing to colonial expansion in Italy at the close of the Middle Ages, and had spread to Holland, France and England by the 17th century. The history of the development3 and of the gradual extension of this form of partnership from projects of colonisation to commercial undertakings of every kind and variety lies outside the scope of this essay. But it is interesting to note that that system of partnership that now controls most of the great commercial and industrial enterprises of modern life, that has popularised and democratised capital and enabled the savings of the people as a whole to be applied to commercial speculations, great and small, of every kind, and that has changed the whole nature of commercial finance, was in its origin the outcome of state necessities and of colonial expansion.
[1 ]This Essay was first published in “An Essay on the Early History of the Law Merchant,” Yorke Prize Essay (Cambridge) for 1903 (Cambridge: University Press, 1904), pp. 124-140, being part of c. V.
[2 ]B. A. Cambridge University, 1903, M. A., 1907.
[1 ]Documents Inédits sur le Commerce de Marseilles au Moyen Age, by Blancard, Document 4, vol. i. p. 7. There are scores of similar contracts of Commenda in these two volumes, and there are numerous 12th century examples in the volume of Chartae in the Monumenta Historiae Patriae.
[2 ]Monumenta Historiae Patriae, Chartae, column 287.
[3 ]Goldschmidt, Handelsrecht, p. 260 and note 88 b.
[1 ]Goldschmidt, p. 264.
[2 ]Goldschmidt, p. 265 and note 104. Lattes, Il diritto commerciale, p. 157.
[3 ]Pertile, Storia del diritto italiano, IV, 685, note 24. Cf. Viollet, Histoire du droit civil français, p. 762. “Dans la société le bailleur de fonds ou commendataire n’est passible des pertes que jusqu’à concurrence des fonds qu’il a mis ou dû mettre dans la société.”
[4 ][An example of a commenda in early English trade is found in Gross’ Select Cases in the Law Merchant, I, 77, dated 1300 (Selden Soc. Pub., vol. XXIII, 1908)—Eds.]
[5 ]Norrnheim, Geldersen’s Handlungsbuch, Introduction, 43-5.
[1 ]Goldschmidt, 269. Lattes, p. 162 and notes.
[2 ]V. Thaller, Traité Élémentaire de Droit Commercial, §§ 258-262, pp. 160-162.
[3 ]Lattes, p. 161 and notes.
[1 ]Cf. however pp. 188-189 below.
[2 ]Goldschmidt, p. 276, note 139.
[3 ]Kohler, “Zivilrecht” in Holtzendorff’s Encyklopädie der Rechtswissenschaft, ed. 1904, I, p. 598. Kohler quotes from and refers to many Italian authorities of the 12-14th century on representation. Among them St. Como (ad 1232). “Tantum valeat et prosit illi, ad cujus partem vel cujus nomine facta est vel recepta, ac si illam cartam vel contractum vel obligationem recepisset.”
[4 ]Bartolus. “Secundum consuetudinem et fere totius Italiae—litteris mercatorum unus nominatur nomine proprio et omnes alii nomine appellativo, hoc modo: Titius et socius talis societatis,” quoted by Goldschmidt, p. 276, note 137.
[1 ]St. Mutinae, 1327, quoted among others by Goldschmidt, 276, notes 140 and 141.
[2 ]St. of Calimala of Florence, Lb. ii. rubric 43. “Si quis . . . librum corporis sue societatis celavit vel celaverit ita quod haberi et videri non possit quod sit sotii (sic) dicte societatis.” Cf. Lattes, p. 174, note 59 and p. 283.
[3 ]Lattes, p. 162 and note 68.
[1 ]St. of Calimala, 1301, Lb. ii. rubric 19. The date 1236 is given in the rubric.
[2 ]Goldschmidt, 281, note 154. Goldschmidt gives many quotations from and references to city and gild statutes, inter alia St. of Calimala Gild (1341). “E niuno mercantante di questa arte possa obligare in Firenze o nel distretto la sua compagnia o alcuno compagno della sua compagnia—se non in debiti o cose che fossono scritte nel libro o libri della sua compagnia, o se almeno due o più de’ compagni non fossono insieme a tale obligazione fare, o se non avese in ciò speciale o generale procurazione e mandato da’ suoi compagni.”
[1 ]Blancard, op. cit., no. 115.
[2 ]See numerous quotations and references in Goldschmidt, p. 282, note 155.
[3 ]De Luca, De Camb., disc. 29, nos. 3, 4, quoted Goldschmidt, p. 283.
[4 ]Goldschmidt, pp. 284 and 288 and note 159.
[1 ]Goldschmidt, 285, note 160.
[2 ]Endemann, Studien in der romanisch-kanonistischen Wirtschaftsund Rechtslehre, vol. i. p. 395.
[3 ]Endemann, op. cit., pp. 395-6 and 55, 56.
[1 ]Lehmann, Geschichtliche Entwickelung des Aktienrechts (1895). Das Recht der Aktiengesellschaften (1898).
[2 ]Wagner, Seerecht, pp. 8, 9. Thaller, Société par Action, p. 15.
[1 ]Pertile, II, i. pp. 508-510. Goldschmidt, 292.
[2 ]Pertile, II, i. p. 509.
[1 ]Viollet, op. cit., p. 767. Thaller, Société par Actions, p. 5, says “on ne doit pas remonter plus haut que le règne de Henri IV.”: but he gives no example for this earlier date.
[2 ]Article on East India Company in Palgrave’s Dictionary of Political Economy.
[3 ]Especially interesting seems the combination of the commenda with the new form as seen in the Commandite par actions.