The uncovering of a neglected source of the ius societatum and the validity of universal partnerships in the South African law

• Author: J.J. Henning
• DOI: 10.10520/EJC74065
• Date: 01 February 2006
• Pages: 16-38
• Published date: 01 February 2006

B. The uncovering of a neglected source of the ius so-

cietatum and the validity of universal partnerships in

the South African law*

1. Introduction

The long relationship between the Institute of Advanced Legal Studies

and South African legal researchers, particularly those enrolled for

advanced degrees, has become an integral part of the South African

legal scene. Indeed, even a cursory glance at the acknowledgements

in doctoral theses, the list of South African visitors to and visiting

fellows at the Institute, papers given by South African participants and

at the Institute’s conferences, workshops and seminars, as well as

the directory of the Friends of the Institute will establish that research

at the Institute has become not only a rite of passage for many South

African legum doctorandi but also the raison d’etre of regular pilgri-

mages to Charles Clore House, Russell Square, London for very sig-

nificant group of South African academics.66

Significantly the role the Institute of supporting advanced legal re-

search by South Africans has continued unabated even during the

period of the Republic’s isolation and has developed markedly since

South Africa’s re-entry into the international community.Examples

are the increased support of the Institute of and participation in the

activities of South African legal research centres as well the agreement

between the Institute and the Faculty of Law of the University of the

Free State to jointly supervise research degrees in commercial and

company law.67

It may be said that during the past decade the role of the Institute in

supporting South African legal research is particular ly marked in the

field of entrepreneurial law. Although the emphasis has been on cor-

16

*Based on J J Henning “Reflections on a Neglected Source of the Ius

Societatum and the Efficacy of a partnership Universorum Bonorum in

South African Law” in Barry A K Rider (ed) Law at the Centre: The In-

stitute of Advanced Legal Studies at Fifty (Kluwer Law International,

London, 1999) and J J Henning “The uncovering of a key source of the

law of partnership and the efficacy of a partnership of all future and

present property” 1997 Journal for Juridical Science 52-69.

66 E.g. Rajak (ed) Insolvency law.Theory and Practice(1993) (papers read

at the W G Hart Workshop on Insolvency Law);Patfield (ed) Perspec-

tives on Company Law 1 (1995) (papers read a series of seminars on

company law under the auspices of the Institute and the SPTL Com-

pany Law Section).

67 See Rider “Director’s review”1996 (Oct) Bulletin 4.

porate forms of business enterprise,68 the law of partnership did re-

ceive some attention. It appears that in research at the Institute on

this topic particular attention was given to historical and comparative

aspects.69

Research for the following contribution was to a large extent done

at the Institute and is based on a paper read as visiting fellow at the

Institute in 1993 as part of its Autumn Term Seminars.70 It considers

the significance of the uncovering by the Supreme Court of Appeal

of Felicius-Boxelius Tractatus de Societate for the South African law

of partnership, particularly as far as perceptions regarding its common

law sources and the present day efficacy of an universal partnership

of all property are concerned.

2. South African law of partnership

2.1 Present and future

There can be little doubt that the law of partnership is one of the most

neglected areas of South African entrepreneurial law, especially as

far as proactive legal development is concerned. For present pur-

poses it is sufficient to point to a few manifestations of this neglect.

17

68 Recently e.g Du Plessis Maatskappyeregtelike grondslae van die regs-

posisie van direkteure en besturende direkteure (1990); De Koker Die

roekelose en bedriegelike dryf van besigheid in die Suid-Afrikaanse maat-

skapyereg (1996); Havenga Fiduciary duties of company directors with

specific regard to corporate opportunities (1995); Hurter Aspekte van

statutêre minderheidsbeskerming in die Suid-Afrikaanse maatskappye-

reg (1995); Wandrag The distinction between private and public com-

panies in South African company law. A historical analysis and compa-

rative evaluation (1994);Cilliers The prohibition of and protection against

the use of identical and similar company names in company law. A

comparative survey (1996).

69 See e.g.Delpor t Gedingvoering tussen vennote (1977);Beinart “Capital

in partnership” 1961 Acta Juridica 118; Henning “Die leeuevennootskap”

1980 Modern Busines Law 143; Ribbens “Legal personality and part-

nership” 1979 Codicillus 25; Henning and Delport Partnership (1984);

T

emplin The legal nature of partnerships (1993); Henning “The seques-

tration of partnership estates: Joint ventures with corporate partners and

other issues concerning susceptibility” 1996 Journal for Juridical Science

85-102; Henning and Snyman “Revision of the law of partnership in

the United States: A commendable precedent?”1997 South Afr ican Law

Journal;Henning and Wandrag “Limited partnerships and limited liability

companies: An historical watershed” 1997 Journal for Juridical Science

115-120.

70 Henning “Re-evaluating a key source of the Roman-Dutch law of part-

nership”, 1993-11-08.