Part 16 (2/2)
5 If a man buys a piece of land which is sacred, religious, or public, such as a forum or basilica, knowing it to be such, the purchase is void. But if the vendor has fraudulently induced him to believe that what he was buying was not sacred, or was private property, as he cannot legally have what he contracted for, he can bring the action on purchase to recover damages for what he has lost by the fraud; and the same rule applies to the purchase of a free man represented by the vendor to be a slave.
t.i.tLE XXIV. OF LETTING AND HIRING
The contract of hire resembles very closely the contract of sale, and the same rules of law apply to both. Thus, as the contract of sale is concluded as soon as the price is agreed upon, so the contract of hire is held to be concluded as soon as the sum to be paid for the hiring is settled, and from that moment the letter has an action on the letting, and the hirer on the hiring.
1 What we have said above as to a sale in which the price is left to be fixed by a third person must be understood to apply also to a contract of hire in which the amount to be paid for hire is left to be fixed in the same way. Consequently, if a man gives clothes to a fuller to clean or finish, or to a tailor to mend, and the amount of hire is not fixed at the time, but left to subsequent agreement between the parties, a contract of hire cannot properly be said to have been concluded, but an action is given on the circ.u.mstances, as amounting to an innominate contract.
2 Again, a question often arose in connexion with the contract of hire similar to that which was so common, namely, whether an exchange was a sale. For instance, what is the nature of the transaction if a man gives you the use or enjoyment of a thing, and receives in return the use or enjoyment of another thing from you? It is now settled that this is not a contract of hire, but a kind of contract apart by itself. Thus, if a man had one ox, and his neighbour another, and they agreed that each should in turn lend the other his ox for ten days to make use of, and then one of the oxen died while working for the man to whom it did not belong, an action cannot be brought on hire, nor on a loan for use, for a loan for use ought to be gratuitous: but an action should be brought as on an innominate contract.
3 So nearly akin, indeed, is purchase and sale, to letting and hiring, that in some cases it is a question to which cla.s.s of the two a contract belongs. As an instance may be taken those lands which are delivered over to be enjoyed for ever, upon the terms, that is to say, that so long as the rent is paid to the owner it shall not be lawful for the latter to take the lands away from either the original hirer, or his heir, or any one else to whom he or his heirs has conveyed them by sale, gift, dowry, or in any other way whatsoever. The questionings of the earlier lawyers, some of whom thought this kind of contract a hiring, and others a sale, occasioned the enactment of the statute of Zeno, which determined that this contract of emphyteusis, as it is called, was of a peculiar nature, and should not be included under either hire or sale, but should rest on the terms of the agreement in each particular case: so that if anything were agreed upon between the parties, this should bind them exactly as if it were inherent in the very nature of the contract; while if they did not agree expressly at whose risk the land should be, it should be at that of the owner in case of total destruction, and at that of the tenant, if the injury were merely partial. And these rules we have adopted in our legislation.
4 Again, if a goldsmith agrees to make t.i.tius rings of a certain weight and pattern out of his own gold for, say, ten aurei, it is a question whether the contract is purchase and sale or letting and hiring. Ca.s.sius says the material is bought and sold, the labour let and hired; but it is now settled that there is only a purchase and sale. But if t.i.tius provided the gold, and agreed to pay him for his work, the contract is clearly a letting and hiring.
5 The hirer ought to observe all the terms of the contract, and in the absence of express agreement his obligations should be ascertained by reference to what is fair and equitable. Where a man has either given or promised for hire for the use of clothes, silver, or a beast of burden, he is required in his charge of it to show as much care as the most diligent father of a family shows in his own affairs; if he do this, and still accidentally lose it, he will be under no obligation to restore either it or its value.
6 If the hirer dies before the time fixed for the termination of the contract has elapsed, his heir succeeds to his rights and obligations in respect thereof.
t.i.tLE XXV. OF PARTNERs.h.i.+P
A partners.h.i.+p either extends to all the goods of the partners, when the Greeks call it by the special name of 'koinopraxia,' or is confined to a single sort of business, such as the purchase and sale of slaves, oil, wine, or grain.
1 If no express agreement has been made as to the division of the profit and loss, an equal division of both is understood to be intended, but if it has, such agreement ought to be carried into effect; and there has never been any doubt as to the validity of a contract between two partners that one shall take twothirds of the profit and bear twothirds of the loss, and that the remaining third shall be taken and borne respectively by the other.
2 If t.i.tius and Seius agreed that the former should take twothirds of the profits, and bear only onethird of the loss, and that the latter should bear twothirds of the loss, and take only onethird of the profits, it has been made a question whether such an agreement ought to be held valid. Quintus Mucius thought such an arrangement contrary to the very nature of partners.h.i.+p, and therefore not to be supported: but Servius Sulpicius, whose opinion has prevailed, was of a different view, because the services of a particular partner are often so valuable that it is only just to admit him to the business on more favourable terms than the rest. It is certain that a partners.h.i.+p may be formed on the terms that one partner shall contribute all the capital, and that the profits shall be divided equally, for a man's services are often equivalent to capital. Indeed, the opinion of Quintus Mucius is now so generally rejected, that it is admitted to be a valid contract that a partner shall take a share of the profits, and bear no share in the loss, which indeed Servius, consistently with his opinion, maintained himself. This of course must be taken to mean that if there is a profit on one transaction, and a loss on another, a balance should be struck, and only the net profit be considered as profits.
3 It is quite clear that if the shares are expressed in one event only, as for instance in the event of profit, but not in the event of loss, or vice versa, the same proportions must be observed, in the event of which no mention has been made, as in the other.
4 The continuance of partners.h.i.+p depends on the continuing consent of the members; it is dissolved by notice of withdrawal from any one of them. But of course if the object of a partner in withdrawing from the partners.h.i.+p is to fraudulently keep for himself some accruing gain--for instance, if a partner in all goods succeeds to an inheritance, and withdraws from the partners.h.i.+p in order to have exclusive possession thereof--he will be compelled to divide this gain with his partners; but what he gains undesignedly after withdrawing he keeps to himself, and his partner always has the exclusive benefit of whatever accrues to him after such withdrawal.
5 Again, a partners.h.i.+p is dissolved by the death of a partner, for when a man enters into a contract of partners.h.i.+p, he selects as his partner a definite person. Accordingly, a partners.h.i.+p based on the agreement of even several persons is dissolved by the death of one of them, even though several others survive, unless when the contract was made it was otherwise agreed.
6 So too a partners.h.i.+p formed for the attainment of some particular object is terminated when that object is attained.
7 It is clear too that a partners.h.i.+p is dissolved by the forfeiture of the property of one of the partners, for such an one, as he is replaced by a successor, is reckoned civilly dead.
8 So again, if one of the partners is in such embarra.s.sed circ.u.mstances as to surrender all his property to his creditors, and all that he possessed is sold to satisfy the public or private claims upon him, the partners.h.i.+p is dissolved, though if the members still agree to be partners, a new partners.h.i.+p would seem to have begun.
9 It has been doubted whether one partner is answerable to another on the action of partners.h.i.+p for any wrong less than fraud, like the bailee in a deposit, or whether he is not suable also for carelessness, that is to say, for inattention and negligence; but the latter opinion has now prevailed, with this limitation, that a partner cannot be required to satisfy the highest standard of carefulness, provided that in partners.h.i.+p business he shows as much diligence as he does in his own private affairs: the reason for this being that if a man chooses as his partner a careless person, he has no one to blame but himself.
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