Particular kinds : caput 2

• Date: 01 January 2010
• Pages: 20-62
• DOI: 10.10520/EJC74124
• Published date: 01 January 2010

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CAPUT 2

PARTICULAR KINDS

2.1 Universal partnership of all present and future property

2.1.1 Introduction

In Roman-Dutch law various kinds of partnership were distinguished,1

but one of the primary divisions made with reference to Roman law

was between universal and particular partnerships.2 Particular part-

nerships in Roman-Dutch law were of many kinds, for instance, part-

nerships in particular things or even in a single piece of property or

undertaking only, partnerships for the exercise of some profession

or art, civil and commercial or trading partnerships. The latter includ-

ed partnerships trading in the name of all the partners in common,

namely under a collective name or f‌irm, partnerships en commandite,

as well as silent, anonymous and undisclosed partnerships.3

1 See e.g. De Groot Inleiding 3 21 4; Voet Commentarius ad Pandectas

17 2 1; Van Leeuwen Censura Forensis 1 4 23 2; Henning “Partner-

ship” 19 LAWSA 2nd ed (2006) par 364 et seq.

2 D 17 2 5 et seq.: Societates contrahuntur sive universorum bonorum sive

negotationis alicuius sive vectigalis sive etiam rei unius. Felicius De So-

cietate 1.5.2, 26.9; De Groot Inleiding 3.21.3; Van Leeuwen Censura

Forensis 4.23.2; Huber Hedendaegse Rechtsgeleerdtheyt 3.11.2; Voet

Commentarius ad Pandectas 17.2.4.5; Van der Keessel Dictata 3.26.2;

Pothier Société 2.1.28; Van der Linden Koopmans Handboek 4.1.12;

Isaacs v Isaacs 1949 1 SA 952 (C) 955; V (also known as L) v De Wet

1953 1 SA 612 (O) 614; Annabhay v Ramlall 1960 3 SA 802 (D) 805.

3 Partnerships contracted without limitation or for a def‌inite time or with a

view to permanence, i.e. for the lifetime of the partners, though not for all

eternity: De Groot 3 21 4; Voet 17 2 1; Van Leeuwen Cens For 1 4 23 2.

“Maatschap ... door monde, door brieven, door bode”: De Groot 3 21 4;

Express and implied partnerships distinguished: Voet 17 2 2; Van Leeu -

wen Cens For 1 4 23 3; Huber HR 3 11 6. Partnerships of all property pres-

ent and future, or of all gains or prof‌its, or of all merchandise, contrasted

to partnerships in a single piece of property or in a single transaction or

venture only, in certain things or business, in some particular kind of profes-

sion, art, trade or commerce: De Groot 3 21 3; Van Leeuwen RHR 4 23 1,

Cens For 1 4 23 2; Huber 3 11 2-5; Voet 17 2 4-5; Van der Keessel Dictata

3 26 2-3; Pothier Partnership 2 1 28, 2 2 63; E.g. public or tax-farming part-

nerships, ship and convoy partnerships, private or ordinary partnerships,

partnerships in some art, occupation, trade, handicraft, profession, com-

mercial or trading partnerships: De Groot 3 21 9; 3 22 1; Van Leeuwen

Cens For 1 4 23 31; Huber 3 11 2; Voet 17 2 3 5; Van der Keessel Thes

Sel 707-710; Pothier 2 2 54-56; Van der Linden 4 1 12. Distinguishing be-

tween civil partnerships and commercial partnerships, i.e. partnerships not

in trade and partnerships in trade. In partnerships not in trade (as well as

universal partnerships) each of the partners was liable pro rata for partner-

ship debts, each for his share only. In partnerships trading under a col-

21

In Roman and Roman-Dutch law universal partnerships were distin-

guished into two kinds; f‌irst, those of all present and future pro perty,

termed societates omnium bonorum or societates universorum

bonorum4 and, second, those extending only to everything acquired

from every kind of commerce, referred to as societates universorum

quae ex quaestu veniunt.5

South African law accommodates partnerships of all sorts satisfying

the applicable requirements.6 The distinction between the archetype

of universal partnership, the societas omnium bonorum, and the

partnership in all commercial undertakings, namely the societas uni-

versorum quae ex quaestu veniunt, is still relevant. This is particu-

larly so since the question whether, in which instances and to which

extent universal partnerships of all property were and are recognised

in South African law, has not always been free from doubt.

The partnership of all present and future property is the oldest and

most comprehensive form of universal partnership. Thus when the

term “universal partnership” is used without qualif‌ication, it is usually

a reference to this kind of universal partnership.7

lective name (f‌irm), each of the partners was liable in solidum, i.e. jointly

and severally for partnership debts, but in the partnership en commandite

and the undisclosed or silent partnership, the partners en commandite and

undisclosed or silent partners were not liable to creditors for partnership

debts, but only to the principal or disclosed partner, the undisclosed or si-

lent partner indef‌initely and the partner en commandite only to the amount

of his contribution: Pothier 6 1 96; 6 3 106; Decker and Van Leeuwen RHR

4 23 1 fn (b) (relying on Savary Le Parfait Negociant 381); Barels Advysen

2 59, 60; Van der Keessel Thes Sel 702-704, Prael 3 21 7; Van der Linden

4 1 13. For a discussion of the views of De Groot 3 1 31; Van Leeuwen

RHR 5 3 11 and Voet 7 2 13, 16; Joubert 1978 THRHR 291.

4 Also referred to (in the singular) as the societas totorum bonorum;

societas universorum fortunarum. Gaius Inst 3 148; I 3 25 1; D 17 2 1;

17 2 3; 17 2 5 pr; 17 2 65; 17 2 73.

5 D 17 2 7-13; 17 2 71.

6 Uys v Le Roux 1906 TS 429; Langermann v Carper 1905 TH 251; Smith

v Robinson (1889) 3 SAR 91; Laughton v Griff‌in (1893) 14 NLR 84; Grice

& Co v James Perrott Prince (1890) 11 NLR 259; Mackie Dunn & Co v

Tilley, Foggitt & Wilson (1882) 1 HCG 423; Agostino v Subat & Marinelli

1914 NPD 270; Murray v Yates’ Executors 1916 EDL 293; Du Toit v Afri-

can Dairies Ltd 1922 TPD 245; De Kock & Kessel Ltd v Modern Packag-

ing (Pty) Ltd 1943 WLD 216; Munro v Ekerold 1949 1 SA 584 (SWA);

Stewart v Schwab 1956 4 SA 791 (T); Novick v Benjamin 1972 2 SA 842

(A) 851; Mattson v Yiannakis 1976 4 SA 154 (W) 157; Spie Batignolles

Société Anonyme v Van Niekerk: in re Van Niekerk v SA Yster en Staal

Industriële Korporasie Bpk 1980 2 SA 441 (NC) 444; Pezzutto v Dreyer

1992 3 SA 379 (A) 390; Henning 1996 Tydskrif vir Regswetenskap 68.

7 Cf. Voet 17 2 4; Isaacs v Isaacs 1949 1 SA 952 (C) 954-955; Story

122-124; Nathan Partnership and Private Companies 27; CJS vol. 68

22

According to one def‌inition the partnership omnium bonorum (or uni-

versorum bonorum) “is that by which the contracting parties agree

to put in common all their property, both present and future. It co-

vers all their acquisitions whether from commercial undertakings or

otherwise”.8 According to Pothier, all the property of each of the part-

ners at the time of entering in the partnership becomes from that mo-

ment the common property of the partnership, without formal transfer.

Every asset is included in this partnership which comes to each of the

partners under any title, even by way of succession, gift or legacy.

There is no exception to this, except what comes to one of the part-

ners on condition that it will not fall into the partnership, or what has

been acquired by criminal or dishonest means. Such a partnership

is liable for all the debts of each of the partners due at the time of

entering into the partnership, as also for the debts which each of the

partners is compelled to incur during the partnership, both for himself

and for his wife and family. This, however, does not extend to waste of

money in gambling, f‌ines or penalties on account of crime.9

The societas omnium bonorum is probably the oldest and certainly

the most comprehensive form of consensual societas. Having its ori-

gin in the ancient consortium of sui heredes, it retained much of the

nature and character of the earlier societas fratrum. Rules in the texts

initially applicable to all societates, notably the benef‌icium competen-

tiae, were long applied only to this form.10

It is fairly obvious that it could be created for all persons having a com-

munity of interest with a view to their mutual advantage. This need

not be pecuniary, that is it was not necessarily aimed at prof‌it. Unsuit-

able for mercantile ventures, it was probably popular only when what

was needed was agricultural rather than mercantile partnerships. It

was soon superseded by other forms of partnership more suitable for

business purposes and was no longer a common institution in post-

classical times. However, it survived to enjoy unparalleled popularity

in the Middle Ages. It was then that the idea of several persons as-

sociating themselves for the purpose not only of trade, but for mutual

benef‌it, was considerably extended and that the foundations were laid

for numerous associations, societies and guilds. In great use on the

Continent in feudal times, these “fraternal partnerships” were very well

known to jurists and in custom and were the vehicle of association of

all classes. Particularly prevalent in agriculture, and thus known as

par 1.

8 Isaacs v Isaacs 1949 1 SA 952 (C) 955, using partially the description of

Pothier Société 2 1 29. The latter is also used by Van der Linden Handboek

4 1 12.

9 Pothier Société 2 1 29.

10 Watson Obligations in the later Roman Republic 126-128; Thomas

Textbook of Roman Law 300-301; Van Warmelo 147-165.