Foreword

• Pages: V-VI
• Date: 01 February 2006
• Published date: 01 February 2006
• Author: Johan Henning
• DOI: 10.10520/EJC74067

FOREWORD

In the marked absence of a Partnership Act, and apart from various

enactments dealing on an ad hoc basis with diverse matters such as

insolvency, the law of partnership in South Africa consists of South

African common-law, which is derived mainly from Roman-Dutch law.

English law of partnership it is not binding and should be approached

with caution. In fact, neither the English Partnership Act of 1890 nor

the Limited Partnership Act of 1907 has ever been adopted either in

whole or in part in any South African jurisdiction. Since the early 1970s

Appellate Division decisions on partnership law do not contain a single

reference to English partnership law.

Pothier’s treatise on the law of partnership was regarded as an au-

thority of significance in Roman-Dutch Law towards the end of the

eighteenth century.His Traité du Contrat de Société was translated

into Dutch by Van der Linden under the title Verhandeling van het Recht

omtrent Sociëteiten of Compagnieschappen en Andere Gemeen-

schappen and into English by Tudor under the title A Treatise on the

Contract of Partnership. It has been regarded by South African courts

as an important common law authority on the law of partnership.

However, it should be remembered that Van der Linden’s translation

was only published in 1802. This was only a few years before codi-

fication in the Netherlands by the introduction of an adapted version

of the French Code Civil in 1806. It should be kept in mind also that

Pothier wrote his treatise on partnership after the introduction of Louis

XIV’s Ordonnance du commerce in 1673, which devoted fourteen sec-

tions to commercial partnerships and that these provisions did not

apply in the Dutch Republic. Pothier sometimes also rely on local

French customs for authority.Hence Pothier’s opinions cannot be con-

sidered valid for the Roman-Dutch law of partnership without qualifi -

cation. This is amply demonstrated by the numerous reservations

contained in Van der Linden’s copious notes on his translation of

Pothier’s treatise.

Following on research by the Centre for Business Law of the Univer-

sity of the Free State, the Supreme Court of Appeal in Van Staden

v Venter 1992 1 SA 552 (A) 560H-561C highlighted the importance

and relied on a much neglected source of the Roman-Dutch law of

partnership. This is the comprehensive treatise of Felicius-Boxelius

Tractatus desideratissimus de communione seu societate deque lucro

item ac quaestu, damno itidem ac expensis published in 1666. This

work was relied on and referred to by a significant number of Roman-

Dutch authorities.

Although a statement of the Standing Advisory Committee on Com-

pany Law in 1997 raised the expectation for a modern South African