Isaacs v Isaacs

• Jurisdiction: South Africa
• Judge: Searle J
• Judgment Date: 24 December 1948
• Court: Cape Provincial Division

Searle, J.:

In this matter, at the close of the plaintiff's case yesterday, Mr. Charles, who appeared on behalf of defendant, applied for absolution from the instance on the ground that the plaintiff had not made out a prima facie case.

Plaintiff in her declaration alleged that she was married by Mohammedan rites to the defendant, but that it was not a valid marriage according to South African law, as the person performing the marriage ceremony was not a marriage officer. Plaintiff further alleged that the parties had had the marriage dissolved by Mohammedan rites, and that they are now separated. Para. 5 of the declaration sets out that -

During the period 1918 to 1946 the parties had jointly conducted various forms of business for their own profit. More particularly they engaged in peddling and tailoring and, in all these ventures, plaintiff took an equal part with the defendant and contributed equally with him in respect of labour and capital. The parties, with the children of the marriage, lived together on the profits realised in these commercial enterprises which constituted their only livelihood.

It was alleged that this conduct on the part of the parties amounted to a universal partnership in equal shares, that this partnership tacitly arose at the time of the so-called marriage and continued during the period of its existence.

It is then averred by plaintiff that certain immovable property, registered in the name of the defendant, and acquired out of the proceeds of their activities, is the property of the partnership, and plaintiff now claims a half share of that property.

Mr. Charles advances various arguments against this. Firstly, that there is no such thing as a universal partnership in our law

Searle J

in circumstances such as those alleged, and that in any event such a partnership would have to be created by express agreement, that the evidence does not establish such a partnership, and in particular the facts do not show an intention to create a partnership. For the purposes of the present application one must accept the evidence led on behalf of the plaintiff as correct, and the matter must be approached on that basis. Mr. Charles submits that the societas universorum bonorum or universal partnership fell into disuse, and in fact was forbidden in Roman-Dutch law except between spouses, and in support of that quotes to the Court De Wet and Yeats, Kontraktereg (p. 469); Grotius (3.21.5); Voet (17.2.4). The exception, which he admits, is the case of the putative marriage, examples of which are to be found in Mograbi v Mograbi (1921 AD 274), and Ex parte 'L' (also known as 'A') (1947 (3), S.A.L.R. 50). It is not necessary for me to decide whether this exception would cover a marriage such as the present one, where the parties knew at the time of celebration that their marriage was not according to the laws of the land. It seems to me that the question is not free from doubt. The matter has been considered from another aspect in Bam v Bhabha in the Appellate Division (1947 (4), S.A.L.R. 798), where the question was left open.

Mr. Kooy, who appears on behalf of the plaintiff, does not base his claim upon a universal partnership of the type of the societas universorum bonorum, but on a universal partnership in commercial undertakings. The distinction is fully dealt with by Pothier (Tudor's trans., pp. 24 to 35): 'The partnership universorum bonorum is that by which the contracting parties agree to put in common all their property, both present and future.' (Ibid., p. 24.) It covers all their acquisitions whether from commercial undertakings or otherwise, and is the type of partnership to which Mr. Charles refers. The second type of universal partnership, the one upon which Mr. Kooy relies, and which Pothier describes, Tudor's trans., p. 32, is that which is called in Roman Law universorum quae ex quaestu veniunt:

'The parties thereby contract a partnership of all that they may acquire during its continuance, from every kind of commerce. They are considered to enter into this kind of partnership when they declare that they contract together a partnership without any further explanation.'

(Ibid.) This type of partnership was accepted in Roman-Dutch law without restrictions, vide Grotius (3.21.3); Maasdorp (p. 417); Huber (Gane's trans., vol. 1, p. 454); Van der Linden (Juta's trans., p. 399), etc.

Searle J

The essentials of a partnership have been accepted in the Appellate Division as those set out in Joubert v Tarry & Co. (1915 TPD 277, at p. 279), quoted by STRATFORD, A.J.A., in Rhodesia Railways and Others v Commissioner of Taxes (1925 AD 438, at p. 465). The four essentials are: -

First, that each of the partners brings something into the partnership, whether it be money, or his labour or skill.

The second essential is that the business should be carried on for the joint benefit of both parties.

The third is that the object should be to make profit.

Finally, the contract between the parties should be a legitimate contract.

Not every contract that has those essentials in it is necessarily a partnership. The Court is not bound to draw such a conclusion; but in the absence of any evidence that there was no partnership, when the plaintiff deposes to these essentials and claims such a partnership, the Court cannot hold that there is no prima facie case. At the present stage it is not desirable to go into...