ASPECTS OF JOINT OWNERSHIP

IN ROMAN LAW
by
P. VAN WARMELO (Pretoria)

A.

It is commonly assumed that joint ownership, as it is

known in Roman law, is basically the same as the Roman
dominium. Therefore, as in the case of dominium, joint
ownership is an "absolute" right in rem, giving the joint
owner an exclusive power to use an dispose of the object of
the joint ownership. Furthermore, this joint ownership was
safeguarded in the sense that the joint owner could exercise
his "absolute" right and could not be prevented by third
parties from making use of his right. However, because there
are several joint owners, these other joint owners have to
be protected in their condominium 1). For this purpose they
are granted a ius prohibendi whereby they can prohibit one
joint owner from doing anything whereby the interests of
the other socii are, to some extent, harmed.
It is obvious that the parallel between domin2um and joint
ownership cannot be maintained in every aspect. In cannot
be that condominium is an exclusive right, because there are
more than one person exercising this right over the same
thing.
Nevertheless, dominium and condominium are necessarily
closely related. Dominium, as is generally accepted, is also
inextricably bound with the concept of the possession of the
thing. This appears from many points regarding the acqui-
sition of the right. On the other hand, it is clear that if
ownership is closely connected to possession, then it is only

1) The term condominium will be used although it is not a word

known to Roman jurists. In fact, it can hardly be considered as a Latin
term. The Thesaurus totius latinitatis does not know it and du Cange,
Glossarium mediae et infimae latinitatis, only knows the word con-
dominxcswhich is dated in the 14th and 15th century.
126

logical that the condominium, as a right, is closely connected

with possession, too. But, nevertheless, if we are to connect
condominium and possession as closely as dominium and
possession may be joined, and also consider it a real right
in the same way as dominiuyrc is such a ri,ght, we are coming-
to grave difficulties. It is, however, customary to approach
the condominium, as an abstract right in Roman law; each.
owner having an "intellectual part" in the common property;,
and this decides what part is to be adjudicated to each owner
when the joint property is to be divided. This view is sup-
ported by texts such as D. 31. 66. 2. and D. 45. 3. 5. pr. la).
There is little doubt that there is not the same proximity
between the right and the possession as in the case of'
dominium. But it is hardly possible that condominium, as a,
right, is wholly divorced from possession in Roman law.
Our intention is to examine more closely the modes whereby
joint ownership arises and the powers which this right gives,
to the several joint owners.
We believe that it will appear that it is doubtful whether,
at all times and in every case, the communio of Roman law
had the same content and the same general construction
which is usually attributed thereto. Roman law was not so
abstract in its legal concepts that the ius of the joint owner
is wholly to be separated from the res and the possession
thereof. We believe that it will appear that condominium, at
least in some forms, is nothing more than a form of dominium
attributed to an owner who has some form of possession of
the joint property : that this owner could use and dispose of
the res more or less in the same fashion as the sole owner of
a thing in the case of ordinary dominium. However, this right
is restricted in favour of the socii of this owner and by his

la) Cf. Eisele, Zur Lehre vom Miteigenthum, Archiv. f. Ziv. Prax.
63. p. 27 sqq.; Weiss, Untersuchungen zum neuen Gaius, Festschrift
F. Schulz II (1951) p. 79 sqq. at p. 91. sqq. shows the incongruity of
this view when applied to the ancient consortium. Also cf. Perozzi,
Saggio critico sulla teoria della comproprieta, Scritti giuridici I (1948)
p. 437 sqq.; Biscardi, La genesi della nozione di compropriet?., Labeo,
I (1955) 2, p. 154 sqq.
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actions this joint owner may become liable to some form of

pr<:test<:ttio being due to the other socii.
Condominium claims a peculiar position in the Roman law
and the sources thereof. There seems to be little doubt that
in post-classical times, and perhaps even earlier, this insti-
tution was not very much in favour. Therefore, the law in
regard to condominium is mainly centred around the actions
for division of this joint property, and on this subject there
is a wide literature 2 ) . But the institution as such is not
treated as a separate institution under a separate heading
in the sources. Therefore, in the compilation of Justinian, we
find the law on the condominium (apart from the matter of
the actions for division) widely scattered and distributed
under many separate heads. The result of this treatment of
the subject by the compilors appears to have had a singular
effect. They do not seem to have gone carefully into the
several aspects of the condominium and made the necessary
alterations in the texts to bring the different texts treating
on the same matter in complete harmony with each other.
Perhaps an exception should be made as far as the law of the
ius prohibendi is concerned. This institution is maintained
and enlarged upon in several texts and they are not all in
their original form 3 ) . On other matters regarding condomi-
nium the same care has not been displayed with the result

2) Cf. D. 10. 2; D.10.3; C. 3. However, the questions regar-

ding the division of joint property is the main theme, and therefore,
we find many texts on the actio familiae erciscundae and the actio
communi dividundo. (Literature on the actions, cf. Zimmermann, Umber
die Theilung unter wenigen von mehreren Kommunions-Interessenten,
Arch. f. Ziv. Prax. 34. p. 192 sqq. p. 323 sqq.; Heriard, De l'adjudication
prononc6e par le juge de 1'action familiae erciscundae en droit romain
(1874); Lyon-Caen, De l'action familiae erciscundae (1866); Berger,
Zur Entwicklungsgeschichte der Teilungsklagen im klassischen
Romischen Recht .1912); Audibert, M61.Appleton (1903) p. 1; N.R.H.
1904 (28) p. 273 sqq., p. 401 sqq., p. 649 sqq.; L6vy-Bruhl, De la d6no-
mination negative de certains institutions romaines, N.R.H. 1936 (15)
p. 337.
3) Cf. the criticisms of the text by Bonfante, Il ius prohibendi nel
condominio, Scritti Giuridici varii III, p. 382 sqq.
128

that we believe that from the texts it is possible to distinguish

several layers of the Roman law as it developed during the
centuries. As we hope to prove, there are, on the same point,
frequently conflicting texts and they are conflicting because
they give the law on joint property during different stages
of its development.
_
B.

Joint ownership should obviously be a form of ownership.

Therefore it is to be expected that the right is created in
the same way whereupon dominiunz is constituted. There are,
however, several difficulties which lie in the way, and which
make the obvious modes whereby ownership is constituted,
inapplicable in many cases if joint ownership is to arise.
We intend to discuss the several modes whereupon dominium
arises and to see in how far they are applicable to joint
ownership. It is clear that several modes may be rejected
forthwith. Such is the position in most of the cases of what
is called accessio. Where the ownership of A is extended to
include the thing of B because the object of A's right has
been joined to the thing of B in such a way that they cannot
(as a rule) be severed, joint property does not normally arise.
In the case where A and B are already joint owners of the
one thing and by accessio the thing of C is drawn within
the orbit of their joint ownership, this thing of C becomes
part of their joint property. But this is not a true example
of joint ownership. The actual question is: how did A and
B originally become joint owners of the main res ?

x.. - In the case of occupatio we have an extremely ancient

mode of acquiring ownership, coming from a period wherein
ownership and possession were not distinguished one from
the other. Therefore, the taking of possession is an essential
part of occupatio. But the occupccns takes possession for him-
self and not for another. Of course, the personal in potestate
acquires for the pater or dominus and in exceptional cases
the extraneous could acquire for a principal. The fact, how-
 129

ever, that the extraneus (as a general rule) could not ac-
quire for a principal makes it most unlikely that the one
person could acquire partly for himself and partly for another
and hereby constitute joint ownership. This seems unlikely
even for the law of Justinian and of the later empire when
the extraneus had more latitude and could acquire more
frequently for a principal - and when the concept of owner-
ship became more and more divorced from any question of
possession. Naturally, where a communis servus occupies,
the ownership is acquired for his joint masters. But here
again the first question is: how did the slave become a servus
communis?
The problem is, therefore, reduced to the question: can
two persons acquire possession of the same thing jointly?
Could two or more persons jointly take possession of res
nullius or jointly come across treasure and take possession
thereof? We do not seem to have any texts on this point.
In the literature we find the case of two slaves finding
something and taking it for themselves but this is hardly
of any value 4). It is clear that in classical times there was
some difference of opinion amon,g the jurist whether more
than one person could possess one and the same thing 5) but
at the same time it is also clear that they were generally
agreed that two or more persons could not possess on the
same causa (duos iniuste duos iuste (possidere) non posse)6),
which makes it extremely unlikely that the jurists would
accept the possibility of two persons unconnected with each
other occupying the same res nudlius. This seems to follow
from the ruling regarding the wounding of animals by diffe-
rent persons. On the other hand, if the parties should wish
to occupy together and become joint owners there seems to

4) Cf. Gaudemet, zoude sur le regime juridique de l'indivision en

droit romain (1934) p. 34, 82, who refers to Plautus, Rudens iv. 3.
5) Cf. Albertario, La involuzione del possesso del precarista, del
creditore pignoratizio e del sequestratorio nel diritto postclassico gius-
tinianeo, Studi di dir. rom. II (1941) p. 141, at p. 144 sqq.
6) D. 41. 2. 3. 5.
130

be no reason why they should not become joint owners 7)

except that it means that the real rights acquired by the
parties are defined by their mere will and agreement: by
their free will - the voluntas - they may decide whether
occupatio is to create sole or joint ownership. This seems to
allow the voluntas to play a more important part than is
customary in ancient and even classical law.

2. - It is possible that in the case of the insula nata in

flumine joint ownership may arise. The same rule will apply
to the case of the alveus derelictus. According to Ulpian,
where the island arises in the middle of the river e01'um est
qui prope utrasque ripas possident 8). This might mean that
joint ownership arises but it might mean as well that the
island is the property of the owners on both sides; in the
same way as the island arising on one side of the river is
the property of the riparian owners on that side - i.e. each
owner obtains his share in sole undivided property. However,
we find the joint ownership mentioned in this case in the
text D. 41. 1. 7. 3 (Gaius 2 rerum cottidiana7^um} :

Insula quae in mari nascitur (quod raro accidit) occupantis fit:

nullius enim esse creditur. in flumine nata (quod frequenter
accidit), si quidem mediam partem fluminis tenet, communis est
eorum, qui ab utraque parte fluminis prope ripam praedia pos-
sident, pro modo latitudinis cuiusque praedii, quae latitudo prope
ripam sit: quod si alteri parti proximior sit, eorum est tantum,
qui ab ea parte prope ripam possident.

We find this rule in the Institutes of Justinian as well 9 } .

This text of Gaius has already been attacked as interpolated

7) Cf. Gaudemet, op. cit. p. 34. At p. 147 sq. he maintains that the
bona fide possessio may be held by two or more persons and refers to
D.10. 3. ?. 2 and D.10. 2. 10. These texts discuss the secondary type
of ownership (Gai Inst. 2.40), protected by the actio Publicia,na, and
this ownership may be held jointly.
8) Cf. D, 43. 12. 1. 6;in § 7 the case of alveus derelictus is men-
tioned. Cf. Gaudemet, op. cit. p. 82.
9) Inst. lust. 2.1.22.
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in lesser aspects at an early date But when we consider

that the Res cottidianae of Gaius is possibly of post-classical
origin 1x),. it is not going too far to conclude that we have
here a post-classical edition of the rule found in the text of
Ulpian, i.e. eorum est qui prope utrasque ripas possident and
it is very likely that this rule did not mean that joint property
arose but a divided ownership. This possibility is supported
by a text attributed to Paul, D.41.1.29 (Paulus 16 ad
Sa binum ) :

Inter eos, qui secundum unam ripam praedia habent, insula in

flumine nata non pro indiviso communis fit, sed regionibus
quoque divisis: quantum enim ante cuiusque eorum ripam est,
tantum, veluti linea in directum per insulam transducta, quisque
eorum in ea habebit certis regionibus.

From this text it is clear that, as regards the final sentence

in the text of Gaius, the riparian owners become sole owners
of the several portions. It seems credible to accept that
Ulpian, when discussing the ownership of the island arising
in the middle of the stream, also considered that the riparian
owners on both sides of the river became sole owners of their
several portions when he says eorum est. It seems, therefore,
very likely that Gaius would have held the same view and

1°) Perozzi, Se la relazione sulle opinioni dei Sabinani e dei Procu-

liani in D. 41.1. ?. § 7 sia di Gaio, Scritti Giuridici 1 (1948) p. 253 sqq.
11) Cf. Schulz, History of Roman legal science .(1946) p. 167 sq.
Arangio-Ruiz, Ancora sulle res cottidianae. Studio di giurisprudenza
postelassica, Studi Bonfante 1, p. 493 sqq.; more reserved, however,
Wenger, Die Quellen des romischen Rechts (1953) p. 508 n. 201. If we
compare this text with the Verona-Gaius, this appears more clearly:
Gai Inst. 2.72. At si in rrtedio flumine insula nata sit, haec eorum
omnium cammunis est, qui ab utraque parte fluminis prope ripam
praedia possident; si vero non sit in medio flumine, ad eos pertinet,
qui ab ea parte, quae proxima est, iuxta ripas praedia habent. Here,
too, it is said that the island corrimunis est and may give the impres-
sion that we have to do with joint ownership. Gaius, however, has in
mind a oommuniopro diviso (Kaser, Das romische Privatrecht, 1 (1955)
p. 323), that is, a unity consisting of several joined parts in the same
sense as we find in Paul (cf. D.41.1.29 infra) and Pomponius
(D. 6. 1. 3. 2; 5. pr. and 1, infra, p. 134).
132

that any different view (communis est eoium) expressed in

his text must be of a later date - that is, not necessarily of
Justinian times but at least from post-classical times.

3 (a). - If we are to believe Justinian, we have joint

ownership arising where confusio takes place 12), Inst. lust.
2. 1. 27 :

Si duorum materiae ex voluntate dominorum confusae sint, totum

id corpus, quod ex confusione fit, utriusque commune est, veluti
si qui vina sua confuderint aut massas argenti vel auri con-
flaverint. sed si diversae materiae sint et ob id propria species
facta sit, forte ex vino et melle mulsum aut ex auro et argento
. electrum, idem iuris est: nam et eo casu communemesse speciem
non dubitatur. quodsi fortuitu et non voluntate dominorum con-
fusae fuerint vel diversae materiae vel quae eiusdem generis
sunt, idem iuris esse placuit.

This passage is certainly badly construed. Three cases are

mentioned : voluntary confusion of similar things; voluntary
confusion of different materials; involuntary confusion. In
all these cases joint ownership arises but Justinian expresses
himself in such a fashion as if the cases are solved differently
(sed si diversae materiae sint .... quod si fortuitu ....).
This passage obviously follows the Libri rerum eottidianccrum
attributed to Gaius, D. 41, 1. 7. 8 :
_
Voluntas duorum dominorum miscentinm materias commune
totum corpus efficit, sive eiusdem generis sint materiae, veluti
' vina miscuerunt vel argentum conflaverunt, sive diversae, veluti
si alius vinum contulerit alius mel, vel alius aurum alius argen-
tum : quamvis et mulsi et electri novi corporis sit species. (9)
Sed et si sine voluntate dominorum casu confusae sint duorum
materiae vel eiusdem generis vel diversae, idem iuris est.

. This text is better arranged and we find the three cases

mentioned in the Institutes solved in the same way but
.
12) Cf. Also Gaudemet, op. cit. p. 83 sq. and especially Kaser, Die
naturlichen Eigenttimserwerbsarten im altrornischen Recht, ZSS (1947)
66, p. 219 sqq. at p. 240 sqq.
 133

without giving the impression that the three cases are being
contrasted. There seems to be no reason why the compilers
of the Institutes should have changed the text which we
find in the Digest and therefore the only reasonable ex-
planation for the discrepancy between the two versions of
the Libri rerun cottidianarum seems to be the fact that
different versions were used when the Digest and when the
Institutes were compiled 13).
We may safely conclude that we have here the statement
of law in Justinian's time as well as in post-classical times.
The question is, however, whether this statement of the law
reflects the law of Rome at earlier periods.
There are several pointers against adopting the view that
Justinian hands down the law of classical and earlier times.
Firstly, the source being the Libri rerum cottidianarum
inclines one to think that we have here post-classical law
but not necessarily the law of earlier times. Secondly, in
regard to the specific case where different species are mixed,
it is clear that, even if Gaius (as the text wishes us to believe)
would have decided in favour of joint ownership, this could
not be considered to be the unanimous view of the jurists
of classical times I4 ) . Thirdly, from the fact that the voluntas
of the parties is stressed, the suspicion grows that we have
to do with post-classical law. Finally, the weak construction
of the Justinian text seems to denote reconstruction. The
mixture becomes joint property because the parties wish it
to become joint property. Thus, just as in the case of the
occupatio, we are to believe that the mere voluntas of the
parties is the deciding factor whether joint property arises
or not. It is difficult to imagine the mere voluntas playing
such an important part in classical and earlier times, es-
pecially where dominium in some form or another is to be
acquired.

13) Cf. Wieacker, Doppelexemplare der Institutionen Florentins,

Marcians und Ulpians, RIDA 3 (1949), p. 577 sqq. at p. 577.
'4) Cf. D. 41. J.2.1; D..41.1. 2'I.1.
134

The picture becomes clearer when we look at Inst. Iust.

2.1.28:

Quodsi frumentum Titii tuo frumento mixtum fuerit, si quidem

ex voluntate vestra, commune erit, quia singula corpora, id est
singula grana, quae cuiusque propria fuerunt, ex consensu vestro
communicata sunt. quodsi casu id mixtum fuerit vel Titius id
miscuerit sine voluntate tua, non videtur commune esse, quia
singula corpora in sua substantia durant nee magis istis casibus
commune fit frumentum, quam grex communis esse intellegitur,
si pecora Titii tuis pecoribus mixta fuerint: sed si ab alterutro
vestrum id totum frumentum retineatur, in rem quidem actio
pro mode frumenti cuiusque competat, arbitrio autem iudicis
continetur, ut is aestimet, quale cuiusque frumentum fuerit.

It is possible that we have here an extract from the Libri

rerum cottidianarum. At any rate it is not to be found in
the fragments found in the Digest. It is hardly likely that it
would have been rejected by the Compilatores, however, if
it had been present in the version of the Libri used for the
Digest. But whether it is to be found in the Libri rerum
cottidianarum or not, it seems clear that this fragment was
maintained in the Institutes by the compilers while bearing
in mind the ruling given by Pomponius as we find it reported
by Ulpian, D. 6.1. 3. 2 (Ulp. 16 and edictum) :

Pomponius scribit, si quid quod eiusdem naturae est ita confusum

est atque commixtum, ut deduci et separari non possint, non
totum, sed pro parte esse vindicandum. ut puta meum et tuum
argentum in massam redactum est: erit nobis commune, et
unusquisque pro rata ponderis quod in massa habemus vindica-
bimus, etsi incertum sit, quantum quisque ponderis in massa
habet.

and D. 6. i. 5. pr. ( Ulp. 16 ad edictum) :

Idem Pomponius scribit: si frumentum duorum non voluntate
eorum confusum sit, competit singulis 1n rem actio in id, 3n quan-
tum paret in illo acervo suum cuiusque esse: [quod si voluntate
eorum commixta sunt, tunc communicata videbuntur et erit com-
uni dividundo -actio.]
(1) Idem scribit, si ex melle meo vino tuo factum sit mulsum,
quosdam existimasse id quoque communicari: sed puto verius,
 135

ut et ipse significat, eius potius esse qui fecit, quoniam suam

speciem pristinam non continet. sed si plumbum cum argento
mixtum sit, quia deduci possit, nec communicabitur nee com-
muni dividundo agetur, quia separari potest: agetur autem in
rem actio. sed si deduci, inquit, non possit, ut puta si aes et
aurum mixtum fuerit, pro parte esse vindicandum: nee quaquam
erit dicendum, quod in mulso dictum est, quia utraque materia
etsi confusa manet tamen.

If we are to believe the Institutes, there is no joint property

in the case of commixtio unless the parties are agreed thereto.
Thus again we find that the voluntas of the parties decides
whether joint property arises or not. The same view is ex-
pressed in the words attributed to Pomponius in lex. 5. pr.
If, however, we compare lex. 5. pr. with lex 3. 2, it is notice-
able that Pomponius does not distin,guish in the last text
between voluntary and involuntary commixtio. For this
reason alone the first text must seem suspect and therefore
no wonder that the final section of lex 5. pr. has been rejected
as interpolated 15); the resemblance with the Institutes is
too great to be coincidental and, moreover, that the property
becomes joint property tunc when the voluntas of the parties
decides thereto, cannot be attributed to Pomponius. It is most
likely that the words sine voluntate in the first sentence of
Lex 5. pr. is also interpolated.
As regards lex 5.1, the first section concerning specificatio
is not relevant for our purposes. However, we find that
where lead and silver are melted down the alloy does not
become joint property because it can be reduced again to
lead and silver. The words nec communi dividundo agetur
are suspect because the fact that the alloy can be separated
into its component metals is no reason why the actio communi
dividundo cannot be instituted: this action is used to divide
joint property whether such property is divisible or not. But
it is quite clear why a reference is made to this action. In the
law of Justinian, as we find it in these texts, communicare
denotes joint property giving rise to the actio conznzuni
dividundo, but this is not quite the view taken by Pomponius.

is) Cf. Index Int. h. 1.

136

It is clear from the texts in the Digest that we have here!

a divergent view adopted by Pomponius. It is obvious that
Pomponius does not distinguish (like Justinian) between
eommixtio and confusion (confusum est atque commixtum as
we find in lex 3.2). It is unlikely that this view was
maintained in post-classical times. It seems most probable
that the distinction was made in post-classical times between
confusio and commixtio.
As far as Pomponius was concerned there was no joint
ownership in the case of commixtio or confusio, or rather,
there was no joint ownership in the usual sense. There might
be some form of communio arising from commixtio or con-
fusio but it is not the type of communio which gives rise to an
actio communi dividundo and still less to an actio f-familiae
erciscundae. According to his view 16) each owner of the
communio could institute the rei vindicatio to reclaim his
o r i g i n a I property or share. We are not in a position
to decide whether this was the dominant view in classical
times. It is clear that in) post-classical times and more
especially in the law of Justinian this view was not shared.
We have joint property in the case of confusio, and, in the
law of Justinian at least, no joint property in the case of
commixtio. The explanation of this difference given in the
Institutes 2.1.28 is hardly satisfactory. The analogy be-
tween f rumentum and grex hardly holds water. Furthermore
the statement quia singula corpora in sua substantia durant
has a Byzantine flavour redolent of the reasoning concerning
the ovaia in D. 18. 1. 9. 2.
Thus, according to Pomponius, in the case of commixtio
or of confusio a communio arises but it differs from other
cases of communio because joint property does not arise in
the sense of joint property which gives rise to the actio
familiae erciscundae or actio communi dividundo. Each party,
however, remains owner of his share and is entitled to reclaim
it from the other who happens to be in possession of the
whole.
---
16) Cf. D. 41. 1. 27. 2.
 137

These facts give rise immediately to three questions: first-

ly, if the usual actions for division are not allowed by Pom-
ponius, how does each party claim his share? Secondly, if
this form of communio is distinguished by Pomponius from
other forms of communio with regard to be action employed
to divide the community, are there other points whereupon
this particular form of community might differ from the
others? Thirdly, if the communio which Pomponius discusses
in the texts mentioned above, differs from joint property
giving rise to the usual actions for division, are there perhaps
still other forms of communio (apart from the case of con-
fusio or cowzmi%tio) with their own separate rules? With
regard to the second question there seems to be no pointers
either for or against. As to the third question we trust that
it will appear from what we have to say further on that there
were other forms of communio with separate rules.

3 ( b) . - In reply to the first question it is clear that we

have here one of the paucissimae causae mentioned by
Gaius 17) wherein the rei vindicatio parts is used. From this
it is clear that Pomponius also considers these particular
forms of communi as particular forms of ownership - that
the parties remain owners of a part of the communio although
this is held pro indiviso.
The function of the rei vindicatio po/r must be taken
into consideration. It should be remembered that this vindi-
catio partis is, as far as we know it, employed in two cases
and in both cases it would appear to be nothing more than
versions of the ordinary rei vindicatio. It is employed, firstly,
in the case where the actor is sole owner of a section of a
fundus or sole owner of some movables of the same genus
as other movables belonging to the reus 18). It is employed
to reclaim this sole property and the fact that the res is
described as part of the whole or part of a genus is only a
convenient mode of indicating exactly what the owner is

17) Gai Inst. 4. 54.

z$) Cf. Gai Inst. 4. 54; D. 6.1. 6. ,
138

after. If he succeeds he gets his property back exactly as in

the case of the ordinary vindicatio. In the second case where
the vindicatio partis is employed, it is instituted by the cho-
owner against the other joint owner in the case where E,
communio arises by means of confusio or commixtio. That;,
at least, was the view of Pomponius. As we have said before:
this need not necessarily have been the communis opinio,
Nor is it clear that this action was used only in the case of
communio arising in this way. It is abundantly clear that
the use of the rei viT1dicatio partis to achieve division was
ousted by the actio communio dividundo. In the later develop-
ment this latter action was used in all cases of communio
(excepting for the case where the actio familiae exciscundae
had to be used) and from this it is clear that it was the idea
to treat all forms of communio exactly alike.
In this light we have to consider the words of Pomponius
in D. 6. I. $ (Ulpian111S12 ad edictum) :

Pomponius libro trigensimo sexto probat, si ex aequis partibus

fundum mihi tecum communem tu et Lucius Titius possideatis,
non ab utrisque quadrantes petere me debere, sed a Titio, qui
non sit dominus, totum semissem. aliter atque si certis regionibus
possideatis eum fundum : nam tunc sine dubio et a te et a Titio
partes fundi petere me debere: [quotiens enim certa loca possi-
debuntur, necessario in his aliquam partem meam esse:] et ideo
te quoque a Titio quadrantem petere debere, quae distinctio neque
in re mobili neque in hereditatis petitione locum habet: nunquam
enim pro diviso possideri potest.

There is no doubt that this text hardly contains the true

words of Ulpian or Pomponius. Several reconstructions have
been suggested as well as the rejection of the whole as inter-
polated 19). Keeping in mind the lapse of time between the
classical period and Justinian's compilation, as well as the
changes in the text which could have occurred in this interval,
we would suggest that the text could contain the ideas of

;L9) Cf. Index Int. h. 1.; Grosso, Miscellanea critica, Studi Alber-
tario I (1953), p. 586 sqq., at p. 589; Wieacker, Das Gesellschafterver-
hiutnis des klassischen Rechts, ZSS 69 (1952), p. 302 sqq., at p. 338
n. 99.
 139

Pomponius in the words up to petere me debere 20) : the first

sentence states the case of A and B being joint owners of a
farm. B and a third party C are in possession. A is to institute
his vindicatio partis against C for his (A's) half. As against
C it is obviously for restitution, i.e. to hand the whole back
to A and B so that A and B are jointly in possession. As
regards the second case (aliter atque .... me debere), it is
almost the same as the previous one: the difference is that
B and C are not jointly in possession but each one possesses
a defined section of the common fundus. A has to institute
his action for a part against C as well as against B. The
phrase quotiens .... meam esse would seem to be interpolated
(possidebuntur) . The last sentence is probably from a later
date than the classical period, but as regards the res mobiles
quite correct. This joint possession as envisaged by Pom-
ponius is possible with a fundus but unthinkable when we
have to do with a res mobilis.
For our purposes it is significant that the vindiccctio partis
is instituted against Lucius Titius for the half share. It seems
obvious that if the claim succeeds then the factor has his
separate share and that in this way the division of joint
property has been effected. May we conclude that if Lucius
Titius had not been mentioned, Pomponius takes it for
granted that we realise, that by means of the vindicatio
partis, the half share could be claimed from the joint owner
and that in this way the division would be effected? If this
is so it is furthermore clear that the joint ownership of this
fundus could not have arisen from comnzixtio or confusio :
therefore, we would be entitled to accept that the vindicatio
partis to effect division of joint property was allowed by
Pomponius in some other cases where joint property had
arisen.

4. - Would in iure cessio or mancipatio be available as

modes constituting joint ownership 2r ) ?

20) The reading of semissem for quadrantes is perhaps preferable;

cf. Beseler, Einzelne Stellen, ZSS. 45 (1925), p. 433 sqq., at p. 460.
21) Cf. Wieacker, Das Gesellschafterverhaltnis etc. at p. 327 sqq.
140

We do not seem to have texts treating specifically on

in iure cessio. At a first glance it would appear doubtful
whether joint ownership could be constituted in this way.
Whether we have here originally a fictitious lawsuit or a
separate legis actio it would appear from the description
provided by Gaius that we have a mode whereby originally
a corporeal thing was acquired and thereby a real right was
constituted for the person taking part in this act. However,
it is fairly obvious that as in iure cessio became a means
whereby rights were acquired, that we have here the same
development as is to be found with mancipatio. Thus, that
if joint property could be constituted by means of mancipatio
there is no reason why it could not have been constituted by
means of in iure cessio.
As regards mancipatio, whether we see it as an act "don-
nant a I'acqu6reur un droit absolu erga omnes, et par suit
inattaquable" 22), or, according to Meylan 23) : "Dans la
mancipation du type ancien, la saisie materielle procurait
a 1'acheteur l'usus du corps mancip6 et lui permettait, par un
usus prolong4 s,ous la garantie du vendeur, d'acqu6rir sur ce
corps, en vertu de la loi, un pouvoir juridique exclusif, la
propriete quiritaire", it is clear that in its origin, the man-
cipatio consisted in the taking of the corporeal thing (la
saisie materielle) by the person who was to have the sole
right over the thing. The fact that Gaius mentions that
immovables could be acquired in absentia proves nothing to
the contrary. We have the general position that the acquirer,
rem tenens, obtained the sole right and in the case of im-
movable property an exception was made (for obvious
reasons) ; but an exception which was significant enough for
Gaius to mention 24). However, there is no doubt that mar-
cipatio became a mode of acquiring and constituting joint

*) L6vTBruhl, Nouvelles 6tudes sur le tr6s ancien droit romain

(1947) p. 9.
23) La genese de la vente consensuelle TR 21 (1953) p. 129 sqq.,
at p. 157.
2A) Gai Inst. 2. 119, 121.Kaser, Das altrcimische ius (1949) p. 328
mentions: .... konnte die urspriingliche reale Bemachtigung nur durch
 141

property. Probably this happened because, in the nuncupatio,

the party acquiring mentioned that he acquired a pro parte
share, or (where joint owners passed the property), by
having each of the joint owners pass the property separately
pro parte. This is obviously a devellopment from a period
wherein mancipatio is recognised as constituting a real right.
The texts of several such mancipationes (going back to
classical times) have been preserved. We find cases of
alienation pro parte or of alienation by all the joint owners
as well as acquisitions by (or for) more than one owner 25).
The question arises, whether, in the case of joint ownership
being constituted by means of mancipatio or in iure cessio,
the vindicatio pro parte lies, as in the case of joint property
arising from confusio, or whether the actio communi divi-
dundo only.
5. - Would delivery or usucapio be a mode whereby joint
ownership could arise In principle it would appear that
the answer should be in the negative, at least for classical
law. Delivery consists basically in the transfer of possession
and two or more persons cannot retain passessia of the same
corporeal thing. Furthermore, as a rule, the one party cannot
obtain the thing for himself and others since this type of

Annahme eines ubersinnlichen Elements in der Ergreifungsgeste erkannt

werden. Aber wie bei der vindicatio hat sich auch bei der mancipatio
die Symbolik in diesem Ergreifungsakt erschöpft, den wir darum als
das alteste Kernstuck des Aktes aufzufassen haben.
25) Cf. Donatio Iuliae Monimes (C. 1. L. 6,2,10231, Bruns, Fontes,
7 ed. n. 138; Girard, Textes, 1937, p. 830; Fontes iuris Romani anteius-
tiniani (Arangio-Ruiz etc.) III, (1943) p. 297); C. I. L. 6, 3, 20278
(Bruns, Fontes 7 ed. n. 140. 2) ; also C.L.L. 3,944 (Bruns, Fontes, 7
ed. n. 133; Fontes iuris Romani anteiustiniani (Arangio-Ruiz etc.)
III (1943) p. 289; Girard, Textes, 1937, p. 851) where a section of a
house is transfered by mancipatio. In the Digest there are also several
texts proving the same point in classical times (D. 8. 4. 6. 2 ;D.19.1.
13. 17 ;D. 41.2. 26). In all these texts, traditio has been obviously inter-
polated (Cf. Index Int.) However, it is possible that these texts .(or
some of them) treated of in iure cessio and not of mancipa.tio.
2°) Wieacker, Das Gesellschafterverhaltnis etc. at p. 338 sqq.;
Arangio-Ruiz, La societasin dir. rom. (1950) p. 127 sqq.
142

agency would not conform with Roman legal ideas. However,

some further light is thrown on the matter by D. 41. 2. 2\5
(Pomponius 26 ad Quintum Mucium) :
Locus certus ex fundo et possideri et per longam possessionem
capi potest et certa pars pro indiviso, quae introducitur vel sex
emptione vel ex donatione vel qualibet alia ex causa. incerta
autem pars nec tradi nec capi potest, veluti si ita tibi tradam:
,,quidquid mei iuris in eo fundo est": nam qui ignorat, nee tra-
dere nec accipere id, quod incertum est, potest.

At a first glance this text would seem to lay down the rule
that tradition pro parte was admissable in classical law. The
interpolation of longi temporis praescriptio (for usucapio'i
and traditio is obvious 27). Traditio was substituted for may-
cipatio or possibly in iure cessio and in this way the text
merely confirms that mancipatio pro parte or in iure cessio.
pro parte was reco,gnised in classical Roman law. Further-
more that traditio pro parte was permissable in the law o :"
Justinian.
For our purpose it is more important that this text lays
down that possession can be obtained of a certa pars pro
indivisio. The text considers the case of two or more person
buying a fundus or receiving it as a donatio. They are there-
upon put jointly in possession (introducitur) and obviously-
they are going to use this fundus jointly and in common.
This joint possession is sufficient for the purpose of creati.ng;
dominium pro parte by means of usyucapio. Thus usucapio
is a mode whereby joint ownership could arise. But in the
same way traditio may introduce joint ownership. In our
specific case the traditio (whereby the parties are put into,
possession jointly) gives rise to pretorian ownership only,
but if we have res nec mancipi there is no reason why if
should not give rise to dominium. Obviously, traditio and.
usucapio as modes whereby joint property arises, are only
applicable to such thing which can be taken possession of
by more than one party at the same time. It is hard to
imagine this happening with movables.

27) Cf. Lenel, Palingenesia ad h. 1.

 143

If we accept the traditio and usuoapio of joint property

within these limits it is obvious that they are not to be
used with equal freedom as when sole ownership is acquired.
As a rule, it is accepted that traditio can constitute joint
ownership,. but then it is necessary to make use of the so-
called constitutum possessorium to explain it. This gives
rise to serious difficulties 28). As we trust will appear below,
there are several texts which seem to point out that traditio
in its generally accepted sense was not possible to constitute
joint ownership. Therefore we would suggest that traditio
as a mode of constituting joint ownership was only possible
where the possession could actually be given to two or more
persons jointly.

6. - There are several texts which seem to indicate that

joint ownership arises out of sale, donation etc. 29). It is
hardly credible, however, that such acts, not being acts
whereby ownership is constituted, could create joint owner-
ship in classical law. At the most such acts could serve as
the underlying causae for the constitution of the joint owner-
ship by means of traditio or some other mode whereby
ownership was acquired. In the text we mentioned above,
D. 41. 2. 26, sale and donation is mentioned in such a context:
the sale or donation serve as cause for the usucapio. In fact,
Justinian makes the sale serve as a causa for traditio also.
Consequently, texts mentioning sale a a mode of acquiting
joint ownership should be understood to refer to the underly-
ing causa for the traditio or any other mode whereby this
joint ownership is acquired. As an example we may refer to
D. 17. 2. 31 (Ulpian 30 ad Sabinum):

Ut sit pro socio actio, societatem intercedere oportet: 1).ecenim

sufficit rem esse communem, nisi societas intercedit. communiter
autem res agi potest etiam citra societatem, ut puta cum non

28) Cf. Arangio-Ruiz, Societa 1. c. Also Kunkel, Ein unbeachtetes

Zeugnis uber das r6mische Consortium, Annales de la Faculte de droit
d'Istanbul, 4-5 (1955) p. 55 sqq. at p. 77.
29) Cf. Gaudemet, op. cit. p. 106 sqq.
144

affectione societatis incidimus in communionem, ut evenit in re

duobus legata, item si a duobus simul empta res sit, aut si here-
ditas vel donatio communiter nobis obvenit, aut si a duobus
separatim emimus partes eorum non socii futuri.

For our purposes it is not necessary to examine too closely

the first part of this text, but the last section is of importance
wherein we find that joint ownership arises by means of
sale or donation in the same way as by means of a legacy
or succession. This last section has been frequently severely
critisised so) and it is difficult to believe that the words are
Ulpian's. We are prepared to accept that incidimus in com-
mu?.ionem in the case of a legacy or succession, but, where
things are bought or received as donation, there would have
to be transfer of property. Even in the case of a societas is
would, as a general rule, not be sufficient to transfer the
property to one of the socii since he would not thereby
automatically acquire for the other 3x). Furthermore, the
text is badly edited ( duobus - nobis). Nevertheless, it is
not permissible to conclude that the text is compiled in its
present form by the Compitatores. It may be a post-classical
redaction of sound classical law. For there is no reason to
suppose that as a result of a sale or donation that j oint owner-
ship could not arise by means of wzancipatio or in iure cessio,
or that the joint owners could (as far as certain res are
concerned) not be jointly put in possession and thereby
acquire the ownership by traditio.
Perhaps, however, the practical explanation of this text
is to be found by taking the text as illustrating the fact
that A and B, by separately buying the partes of a thing,
do not become socii. Obviously, where A buys of C and the
thing is delivered to A, it is easily understood that the
property passes to A as in the case where A and B are in
fact socii; in which case A would have a duty to pass a share
of the property to B or otherwise let B share in the pro-
fits 31). But how does the property pass pro parte to A and

3°) Cf. Arangio-Ruiz, Societ£ p. 50 sqg.

31) D.17.2.74.
 145

B where A and B buy separatim? How can tradition take

place pro parte where the parties buy sepc/ra?!'? It seems
difficult to imagine in classical times that a symbolical
delivery or a constitutum possessorium of some "intellectual"
part could have taken place. It would again seem to invest
the voluntas of the parties in the act of transferring property
with a too important role for classical times.
Indeed, there would be no such difficulty in post-classical
law or that of Justinian when the voluntlas would be of
utmost importance and actual delivery drops back to the
rear. It may indicate that the difficulty of pro parse delivery
in classical times might have been superseded by making
use of the communis servus : where two or more wish to
obtain joint property, they let a communis servus do the
buying and the 7rterx is delivered to his slave. This must have
been a fairly common procedure and is mentioned several
times in the texts 32 ) .

7. - Where two or more persons are the successors of a

deceased they became joint owners of the goods whereof the
inheritance consisted. It seems probable that this form of
community was originally only found among the sui
heredes 33) but later was extended to all joint heirs. Indeed,
this was no doubt the most ancient form of joint ownership
recognised by the Romans with some qualifications which
are not to be found in the other cases of joint property.
It had, for instance, this peculiarity that it covered a whole
estate and as a rule covered all the property belonging to the
heirs (at least, in the case where they were the sui heredes
of the deceased). Furthermore, already in the time of the
lex xii tabularum an action was created for effecting a
division of this special form of joint property. This actio
familiae erciscundae was apparently only available in this
particular case to sever the community between the heirs and
to give each his separate share 34).

32) D. 41. 1. 45 ;D. 10. 3. 24 ;D.45.3.5; 27-29.

33) Arangio-Ruiz, SocietA, p. 14 sq.
34) It may be concluded from D. 10. 2. 25. 16that this action could
.46

Secondly, where the testator leaves a will and therein

bequethes by means of a legacy the same property to two
or more beneficiaries, joint property arises. Such, at least,
was the case of the legatum per vindiccvtionem and the lega-
w per praeceptionem in classical law 35). Whether this was
the case in earlier times is, however, open to doubt 36). After
the abolition of these forms of legacies and the legatum per
damnationem, Justianian maintained the rule that the same
thing could be left by means of a legacy to joint legatees.
The same rules apply to things left to more fideicommissarii
jointly 37). However, it is clear that in the case of legacies
the actio f amiliae erciscundae does not lie but, as we hear
from Justinian 38), as in the case of other joint property,
the actio communi dividundo has to be employed. On the
other hand, at least in the case of the legatum per vindi-
cationem, the vindicatio pro parte was employed in classical
times to claim the share of the collegatccrius from the heir or
from whomever held the legacy 39). It is clear that in this
fashion the division of the joint property was effected. There
seems no reason why the one colLegatarius could not institute
the vindicatio pro parte against the other and in this way
reclaim his share if the latter by some means or other was in
possession of the whole. In this way the actio communio divi-
dundo would seem to be somewhat unnecessary. We seem to
have a situation which is parallel to the joint property arising
from confusio. A communio has arisen which can be dissolved
by means of the vindicatio pro parte while the actio communis
dividum,do is unnecessary. The question here, however,

also be employed in the case of collegatarii. The text mentions the

collegatnmaimerely as another example of the societas ex re and is no
doubt an addition of post-classical times. Cf. Arangio-Ruiz, Society
p. 40 sqq.
35) Ulp. Reg. 24.12; Gai Inst. 2.199, 223,
36) Cf. Arangio-Ruiz, Società, p. 13.
37) C.6.65.1.11.
38) Inst. lust. 3. 27.3.
D.35.1.30 and D.30.86. In this regard, cf. Ciapessoni, Sul
Senato-consulto Neroniano, Studi Bonfante III, 649 sqq. at p. 706.
 147

remains: do we have some special rules governing this form

of communi which are distinct from other forms?

8. - From this joint ownership, derived from inheritance

proper, consortium was developed which was originally the
most important case wherein we find joint ownership, apart
from the joint property to be found amongst joint heirs,
Gai Inst. 3. 154a :

Est autem aliud genus societatis proprium civium Romanorum.

olim enim mortuo patre familias inter suos heredes quaedam erat
legitima simul et naturalis societas quae appellabatur ercto non
cito, id est dominio non diviso: erctum enim dominium est, unde
erus dominus dicitur: ciere autem dividere est: unde caedere et
secare [et dividere] dicimus. 154b. Alii quoque qui volebant ean-
dem habere societatem, poterant id consequi apud praetorem
certa legis actione. in hac autem societate fratrum ceterorumve,
qui ad exemplum fratrum suorum societatem coierint, illud pro-
prium erat, [unus] quod vel unus ex sociis communem servum
manumittendo liberum faciebat et omnibus libertum adquirebat:
item unus rem communem mancipando eius faciebat, qui man-
cipio accipiebat.

According ot this well-known text (in which we follow the

generally accepted reading of Arangio-Ruiz) the consortium
frcctrum ceterorumve arose by means of a legis actio whereby
all the property of the parties were reduced to some form of
communio - some form of joint ownership. It may be ment-
ioned that it is generally accepted that Gaius explication of
the term societas ercto non cito cannot be wholly correct
erctum does not appear to have anything to do with dominium
and, therefore,. erctum non citum being equal to dominium
non divisum seems to indicate not necessarily joint owner-
ship as the term is generally accepted but some form of
joint ownership - some form of communio - with some
distinctive characteristics. It seems that this consortium was
well-known in ancient times. In Roman literature examples

4°) Cf. J6ra-Kunkel-Wenger, R6misches Recht (1949) § 151 n. 2 (p.

240 sq.)...
148

of such a consortium. are to be found in the case of the Aelii:

sixteen patres familias who lived in such a community 41).
It is obvious that such a consortium was in actual practice-a
only created between relatives and such-like persons between
whom there was sufficient community of interest to make
such a consortium practicable. The social and economic back-
ground of ancient Rome should also be borne in mind to
appreciate fully this type of communal life. It should be
remembered that Rome was not a highly industrialised come-
munity such as we find in modern communities. Slaves were
the main source of labour and every household formed fit
distinct self supporting group catering for its own need
to a much greater extent than is the case to-day. In such a
community it is obvious that many hands make light work..
If several persons form a communal group and supply thE,
labour and skill necessary for such a communal group, thiE.
group becomes much more powerful economically as well as
socially. It is easy to see why such a consortium was fre-
quently formed in ancient Rome and why, in modern times,
it is difficult to imagine somethin,g similar arising.
It is clear that the parties to the cO'IU3ortium are not sui
heredes of the same pater. If that were the case, the con-
sortium would arise in the fashion described in Gai Inst.
3, 154a : that is to say there would be the naturalis et legitima,
societas called hereto non cito. In the artificial consortium. we
have to do with extranei who need not necessarily be heirs
to a deceased person 42) ; as a rule (and perhaps of necessity,
I

41) Cf. Plutarchus, Aemil. 5. For this and other examples, cf. Gif-
fard, Precis de droit romain (1938) vol. 1, p. 491; Girard, Manuel
616mentairede droit romain (1929) p. 611 n. 2; Monier, Manuel elemen-
'taire de droit romain, vol. 1 (1947), p. 456. Also the brothers Lucanus
and Tullus (first century A.D.): Kunkel, Ein unbeachtetes Zeugnis
uber das romische Consortium, Annales de la Fac-alt6de droit d'Istanbul,
4-5 .(1955) p. 55 sqq. As a general institution down to comparatively
modern times, cf. Westrup, Introduction to early Roman law, vol II
(1934) p. 5 sqq., vol III (1939) p. 235 sqq., p. 266 sqq. ' '
4'<!) Cf. Girard, op. cit. p. 492 n. 3.
 149

always 43) they would be fratres and such-like persons,

somewhat in the same ways as we find Cicero mentioning
the fratrum coniunctiones; post consobrinorum sobrinorum-
que 44).
This consortium is furthermore formed by means of a legis
actio. It is generally accepted that this was not necessary in
the case of the societas ercto non cito 45). The consortium,
however, was created by a legis actio, but wherein this
consisted is unknown. Because it embraced only corporeal
goods it is possible that it consisted in an adaptation of the
actio f amiliae ercisctcndae, or it might also have been based
on an in iure cessio or the rei vindicatio. If we have to believe
Varro 46), there was some form of conserere manu which
makes it probable that we have a special legis actio for the
purpose of constituting the consortium 47).
This legis actio not only created the consortium but caused
the property of the several socii to form a communio - to
become joint property - in some form or another, but not
necessarily having the same form of communio as may be
found in the case of confusio, for instance. A very important
function of this legis actio apparently, was to create a real
right over the joint property in favour of the several socii 48).

43) Cf. L6vy-Bruhl, Nouvelles etudes etc. p. 56, 58 sq. This would
seem to be sustained by the research of Westrup, Introduction etc.
vol II (1934) p. 102 sqq.
44) De Off. 1. 7; cf. also Collinet, Les nouveaux fragments des
Institutes de Gaius, RHD. 1932, p. 96 sqq. at p. 105; Levy, Neue Bruch-
st3cke aus den Institutionen des Gaius, ZSS 54 (1934), p. 258 sqq., at
p. 289.
45) Cf. Levy op. cit. p. 279; De Zulueta, The new Fragments of
Gaius, JRS 25,(1935), p. 19 sqq., at p. 20; Arangio-Ruiz, Societa p. 8;
contra Collinet, op. cit. p. 102 sqq.
46) De ling. lat 6, 64; cf. Collinet op. cit. 104 sq. However, Levy-
Bruhl, La manus consertio, Iura, IV (1953) p. 163 sqq.
Cf. for divergent views: Levy, op. cit. p. 289 sqq.; De Znlueta,
op. cit. p. 29 sq.; Collinet, op. cit. 10. sq.; Giffard, op. cit. p. 492 n. 4
and RHD 14 (1935) p. 192; L6vy-Bruhl, Nouvelles 6tudes, p. 57 sq.;
Weiss, Untersuchungen etc. at p. 86 sqq.; Arangio-Ruiz, Societa p. 10.
48) Cf. Arangio-Ruiz, Societa p. 32 and. p. 123; Kunkel, op. cit.
particularly, p. 66.
150

However, this ancient consortium was superseded by the

societa,s omnium bonorum and much of the old form of com-
munity was taken over into the new 49). Furthermore, this
societas omnium bonorum arose ex consensus and by this mere
consensus a communio was formed and the property of the
partners became joint property. In other words, by means
of the mere consensus joint property arises again. It is again
the voluntas of the parties which is the deciding factor. This
is no doubt the law of Justinian and of late classical times.
The question is actually: how far back are we to go to find
the joint property arising ex consensu alone?
D. 1'1. 2.1.1 (Paulus 32 cut edtc?w):
In societate omnium bonorum omnes res quae coeuntium sunt
continuo communicantum.
D. 17. 2. 2 {Gai2cs 10 ad edictum provinciale) :

quia, licet specialiter traditio non interveniat, tacita tamen cre-

ditur intervenire.

From the above it is abundantly clear that in the law of

Justinian the societas omnium bonorum came about consensu
and that, automatically, all property became joint property.
It seems fairly obvious that we have here a system which
goes back to pre-Justinian times. On the other hand it is
hardly credible that the classical law was exactly on a par
with the law of Justinian
It is permissible to conclude that in post-classical times
the societas omnium bonor2cm consensu was known. Whether
it still was a common institution may be open to doubt. This
may be concluded from the fact that in the Verona-Gaius all
mention of consortium and societas ercto non cito was

4s) Albertario, I nuovi frammenti di Gaio (PSI. XI. Nr. 1182),

Studi di dir. rom. V (1937) p. 461 sqq. at p. 472 sqq. and p. 481; De
Zulueta, op, cit. p. 25; Levy, op. cit. p. 291; Arangio-Ruiz, Societk p. 18
sqq. Contra Levy-Bruhl, Nouvelles études etc. p. 60.
so) Cf. Arangio-Ruiz, SocietAp. 120 sqq.; Buckland, Alienation and
manumission by one of consortes (Gaius 3. 154a), LQR 1942 (58), p. 483
sqq. at p. 484.
 151

studiously excluded and the societas omnium bonorum was

but briefly mentioned. It is especially significant when we
consider that in the Verona-Gaius the word quoque is inserted
in 3. 154 when mention of the old forms of societas is ex-
cluded 51). Thus it seems the obvious conclusion that Gaius
means exactly what he says in 3.14$ : Societatem coire
solemus aut totorum bonorum ccut unius alicuius negotii, veluti
mancipiorum emendorum aut vendendorum - that is, he
wishes to state that, at this time, all forms of societas are
arrived at consensu; or, to refer to 3.154, all forms of
societas on which he is treating, at this time, are iuris gen-
tium and thus quae nudo consensu contrahitur 52).
There is no reason to doubt that in classical times the
societas omnium bonorum consensa, as a legal concept, was
known. The question remains, however, whether the rules
applying to it were the same in classical times as in post-clas-
sical and later periods. More in particular the question is,
whether in classical times the formation of the societas om-
nium bonorum by means of consensu had the effect (as we
have found it to be in later times) of making changes in the
real rights of the parties: that their voluntas caused their
property to become joint property just as if the legis actio had
taken place in the ancient consortium. If the volutes could do
so it is certainly a peculiar development for classical times 5 3).
It would be logical to expect that the ancient consortium was
gradually superseded by the iuris gentium societas omnium
bontoi%m ; that parties could agree to such a &ocietas but at
the same time had to employ some formal act (the legis actio
of the consortium?) to constitute the joint property; that at
a later (probably post-classical) stage this formal mode of
constituting joint property was done away with and it was
considered sufficient that the voluntas of the parties was
directed at creating joint property. We have some sources

51) Cf. Levy, op. cit. p. 271; Albertario, Frammenti, p. 466; van
Oven, De nieuwe Gaius-vondst TR. 13 (1934) 248 sqq.
52) Buckland, Alienation, p. 483; Albertario, Frammenti, p. 479.
s3) Arangio-Ruiz, SocietA,p. 123 sqq.
152

to examine which might give some more information on thi,3

point and as to what of such an hypothesis is tenable.

D. 17. 2. 5. pr. ( Ulpianus 31 and edictum) :

Societates contrahuntur sive universorum bonorum sive negoti-
ationis alicuius sive vectigalis sive etiam rei unius.

This text seems to leave no doubt that the societas omniur?z

bonorum ex consensu was known in classical times. Apparent-
ly the text has received little attention for the reason that it
seems to say little more than Gai Inst. 3.148. For the sa-m4)
reason, if there is more to be concluded from Gai Inst. 3.148
than merely the fact that the classical law knew the societo,-3
omnium bonorum ex consensu then also it is only fair to
conclude that Ulpian intended more than Justinian wishes
us to conclude from these words. It should berememberedthal;
Ulpian speaks of the societas universorum bonorum instead
of the usual totorum bonorum or omnium bonorum. It would
seem possible that this expression (societas universorum;
bonortcm) was a terminus technicus employed by Ulpian to
denote the societas bonorum quae ex quaestu veniunt 54). In
this type of societas it is clear that whatever is acquired
afterwards does not automatically become common property
but some action is required whereby it is made j oint property
or shared 55) - probably it became joint property by man..
cipatio or in iure cessio or even tradition at a later stage. If ii;
is indeed true that Ulpian refered by the term societas unit
versorum bonorum to the societas bonorum quae ex quaestw.
veniunt the question arises: why should Justinian adapt it ta
the societas omnium bonorum? The answer would seem to
be because Ulpian did not distinguish between the societas
omnium bonorum and the societas bonorum cru,ae ex quaestu.
veniunt : both arose ex consensu and the property had to be
made joint property by some formal act or shared.
Another factor pleading against the societas omnium
bonorum being in classical times all that it is claimed to be

54) Cf. D.17.2.7; 63, pr.; 73.

55) D. 17.2. 74.
 153

in the Digest, is that not only does that property become

automatically joint property which the parties had when the
societas was first formed, but also that which they acquire
and bring into the partnership 56). This seems to be incredible
according to the usual conception of condominium for the
Roman law of classical times 57). The conclusion seems to be
that, for the classical law, even if the societas omnium bono-
rum arose consensus, it remains incredible that joint property
was constituted by the voluntas alone of the parties and,
therefore, we expect some other act to have remained
necessary.
Very significant is the text of Gaius if we read it from
3. 148 onwards. Treating of the obligation arising from con-
tracts ex consensus he mentions in § 135 sale, lease, societas
and mandatum. In § 139 he starts off with sale and explains
that it is required that the parties agree. In the case of lease
he says the same rules apply (§ 142). Coming to the societas
he begins by saying that the Romans are in the way of
formin,g (coire) several types of societas. It is generally
believed that this was not always so, and that the societas
consensu coita originally was to be found in the case of the
societas unius negotiationis alone; and that, at a later date
only, the societas consensu was extended to other types 58).

D.17. 2. 52.16,17; C. 3. 38. 4.

57) Cf. Levy, op. cit. p. 292; De Zulueta, op. cit. p. 25 (With refe-
rence to Buckland) ; Wieacker, Gesellsehafterverhiiltnis at. p. 311: "Die
Worte conferre, in tedium f erre und in allgemeine auch communicare
sind technisch fur den Ansatz von Aktivposten" and p. 335 (with refe-
rence to D. 17. 2. 6; 29. pr. 1; 52.13,16 f.; 53; 54; 58. 1; 65.15; Tab.
Transs. II. 10; III. 5; D. 17. 2. 30; 65. 6; 67. pr.; 62; 55; 59.1) "com-
municare meint zwar gelegentlich wirklich "zu Miteigentum machen"
(fr. I. § 1), wohl auch "zum gemeinschaftlichen Gebrauch bereitstel-
len" (58. pr.),..." At p. 337: "Keiner der Eigentumserwerbskataloge
der literarischen und der juristischen Quellen kennt - immer abge-
sehen von tranaitus legate und vom Erwerb durch den servus communis
- jemals die societas als zivilen Erwerbsgrund filr Miteigentum oder
Alleineigentum,..."; Van Oven reviewing Arangio-Ruiz, TR 19
(1951) p. 449-450:... maintes fois communicare n'a d'autre signifi-
cation que celle de partager. Cf. also below p. 161.
58) Cf. Arangio-Ruiz, Soeieta, p. 29,49.
154

It is, therefore, significant that Gaius, without saying how

such a societas is brought about, begins to discuss the societas
unius negotiationis (§§ 149-154). In this last paragraph he
mentions that this form of societas arises consensu and that
it is iuris gentium. In § 154a he starts discussing the societas
omnium bonorum. This is clear from the first sentence whidi
is couched in the present tense: Est autem aliud genus
societatis proprium civium Romanorum. Then follows the
famous but incomplete expose of the consortium and societas
ercto non cito known at one time (alim) to Roman law. It
seems that Gaius intended to treat of the societas omniur?2
bonorum of his time. It appears from the present tens
employed in the first sentence (§ 148) and not only from
the second sentence (§ 154a) 59). It would appear that thee
societas omnium bonorum in his time was considered to be
an institution of the me civile, and that probably means that;,
for its constitution, the mere consensus of the parties was
not sufficient but something more was required - and it
seems almost essential to assume that this something extra
was an act by which the agreement to constitute joint
property had to be put into effect 6o).

59) Cf. Levy, op. cit. p. 293; Albertario, Frammenti, p. 473 sqq.;
Arangio-Ruiz, Societa, p. 126 and the discussion on the change from
present to past tense. Also Kunkel, op. cit. p. 74 sq. However, contra
van Oven, reviewing Arangio-Ruiz, TR 19 (1951) p. 448 sqq.
g°) Monier, Les rapports entre le fr. 57, D. 44, 7, et le nouveau
fragment de Gaius (Inst. 111, 154) RHD 1938 (17) p. 304: ,,La com-
paraison des deux textes prouve que non seulement Gaius, mais Quin-
tus Mucius Scaevola et Pomponius distinguaient, de la soci6t6 consen-
suelle, un autre genre de societas soumis A des r6gles differentes et qui
n'6tait pas fond6'sur un simple accord de volontes; .... un indice en
faveur de la survivance, au IIe siecle ap. J.-C., de certaines regles
propres au consortium h6r4ditaire entre freres,....". Cf. also ad
D. 44. 7. 55,Arangio-Ruiz, Society, p. 21. sq.
If we summarise Kunkel (op. cit.) correctly, he takes it that the
consortium was maintained in classical times as "das echte consortium
des fratres" (p. 73) and that Gaius discussed this consortium (giving
its historical - olim - background) but not the societas omnium hono-
rum consensu coita. However, when Gaius mentions in § 148 a societas
totorum bonorum, he is discussing contracts in general arising con..
 155

Gaius starts off with the historical background (erat) :

the consortium. and societas. ercto non cito from which the
ius civile institution of the societas omnium bonorum
developed via the sus gentium. What he had to say about
this societas omnium. bonorum of classical times has been
lost. This is due to the fact that all discussion of the societas
omnium bono1"Um in the form of consortium or whether
arising consensu) had been rejected from the Verona-Gaius,
obviously because it was no longer a very common institution
in post-classical times, and also because it was an institution
that was presumably constituted, at that time, by means of
consensus and nothing more. Justinian helps us no more: in
his law the institution is also known as a societas arising
consensu with nothing more. It is but briefly treated upon,
also for the same reason that is was no longer very important.

sensu. Van Oven (reviewing Arangio-Ruiz, Society, TR 19 (1951) p.

448 sqq.) concludes that the societas totorum bonorum must have been
infrequent in actual practice and that no one would wish to deny.
Furthermore, he apparently rejects that, if there were cases of socie-
tates omnium bonorum, that the parties made their several estates
common property: "en un mot: les co-associ6s avaient un droit sur
une partie de la valeur de la chose achet6e, comme I'associ6-acheteur en
avaient sur le remboursement d'une partie du prix de vente".
In our view we may not reject forthwith the existence of some form
of societas omnium bonorum in classical times. It seems from Gaius
3. 148 that he kept the possibility of such a societas in mind and fur-
thermore, such a societas arising consensu. Indeed, it was probably
infrequent in practice. Even more so it must have been rare in the
times of Justinian, but still Justinian keeps the possibility of such a
societas in mind. But such a societas omnium bonorum consensu cvita,
where the parties actually were to intend to make all (or some) of
their property joint propery, would require (at least in classical times)
some act to constitute joint property, and their voluntas alone would
not be sufficient. And even where joint property arises, it would not
be impossible that this joint property gives the power to the socius
who actually controls this property to use and dispose thereof as a sole
owner (somewhat in the fashion that was apparently to be found in the
old consortium) ; for it would appear from the texts discussed below
that, a least in some cases, the one co-owner had the power to dispose
validly of the joint property, practically in the same way as a sole
owner.
156

But as regards the societas omnium bonorum of classical

times, it is usually accepted (as we have said before) that it
developed from the ancient consortium and societas ercto non
cito. As the societas from the ius gentium gains ground, the
agreement to form a societas embracing all the property of
the parties could, no doubt, be enforced by the actio pro socio.
This action would enforce and recognise, as being in accord-
ance with the requirements of the bona fides, that the old
rules relating to consortium. and societas ercto non cito be
observed. In this way it would be essential for the parties
te constitute the joint ownership by means of some formal
act and most probably this was originally the old legis actio.
It would only be from post-classical times that the joint
ownership could arise by means of the voluntas alone. Pro-
bably in classical times it would also be necessary for the
parties to constitute joint ownership - communicare 61) -
over such things as they acquire after the partnership has
been agreed upon. Only post-classical law would accent that
such later acquisitions become joint property as a result of
the voluntas only.
Such a development would be completely in accordance
with the growth of Roman law. We sometimes find, on the
one hand, institutions of the ius civile. Then, on the other
hand, analogous institutions arise and are recognised in the
ius genitum. Subsequently the ius gentium recognises the
formal ius civile legal act and enforces it. At the same time
this does not mean that the ius civile institution is adopted
in its original form; it may be adapted to suit new require-
ments and some of its old rules are rejected while others are
maintained 62). It seems, therefore, likely that the constitut-
ion of the joint property by means of some act was retained
in classical times and only rejected later.
C.
As we have said before, there is little doubt that the old

ai) Cf. n. 57.

Cf. Arangio-Ruiz, SocietA,p. 29 and La compravendita in diritto
romano, vl. I .(1952) p. 62 sqq.
 157

consortium and societas ercto non cito would have left its
impression on the societas omnium bonorum of classical
times. It requires a fair amount of guesswork, however, to
determine the exact scope of this institution.

1. - It seems likely, as we have said before, that the

societas omnium bonorum was created by means of the
consensus of the parties but, to constitute the joint property,
it seems most likely that some form of formal act was
retained.

2. - There is no need to doubt that, if the ancient

consortium and societas ercto non cito were originally indis-
solvable 63), this was no longer the case in the societas
omnium bonorum. No doubt this societas was brought to an
end in the same way as any other societas and the actio
communi dividundo was the obvious action to arrive at the
division of the joint property. It seems likely that the
possibility of dividing joint property starts with the actio
f amiliae erciscuyr.dcce, going back to the lex xii tabularum,
which had in view the communio arising between joint heirs.
Theirs was the type of communio wherein a vindicatio pro
parte would not suffice and a separate action had to be
introduced to effect the division. This action, apparently, had
in mind the joint property of heirs 64) and therefore it seems
likely that there was no means of effecting a division where
there was a consortium of others than heirs. It is possible
that the lex Licinia, when the action communi dividundo was
introduced, had the joint property in view in the case of
such a consortium. In other cases of joint property the rei
vindicatio partis would suffice. Needless to say this action
was extended to the joint property in classical times where
it arose from a societas omnium bonorum and was eventually

63) Aulus Gellius, N. A. 1. 9. 12 comparing the ancient consortium

to the societas inseparabilis of the Pythagoreans; De Zulueta, op. cit. p.
21; Albertario, Frammenti, p. 468, 469, 479 ; Levy, op. cit. p. 285.
64) Gai Inst. 4.1'Ta .... de hereditate ctividendainter- ooh,eredes ....
158

extended to all other cases of joint property 65) (and, there-

fore, also to the cases where originally a vindiccctio pro paste
was used). It seems as though this extention happened during
classical times when we keep in mind that in classical times
the vindicatio pro partie was still employed.

3. - The societas ercto non cito amongst heirs could b'3

restricted to the joint heritage and all other property could
be excluded. This is theoretically not so in the case of the
societas omnium bonorum where everything comes to the
community s s ) .
4. - The societas ercto non cito was an institution for
heirs and the consortium was again for brothers and other,3
who had common interests. It is fairly obvious that the
societas. omnium bonorum could be created for all person:;
having a community of interest 67).

5. - The general construction of the societas om?m??

bonorum can be reconstrued to a certain extent. The idea o-.f
the ancient societas ercto non cito produces the picture of the
patriarchal and agricultural community of ancient Rome.
When the pater dies, the heirs continue this community verb
much as it was during the lifetime of the pater. The main
difference is that there are now several persons who are su-;
iuris instead of the one, and these persons were formerly
alieni iuris. They hold everything, which formed the house..
hold of the pater previously, as common property. Even in
the case of the consortium and later the societas omnium,
bonorzcm the situation must have been somewhat similar"

e&) Cf. D. 10.3. 2. pr. and the discussion of Albertario, Frammentz.

p. 475 and Arangio-Ruiz, Societa p. 55. sq.
66) D.17. 2. 52. 6, 8; D. 10. 2. 39. 3.
67) Cf. Weiss, op. cit., who mentions (p. 86 sqq.) that in modern
Italy a similar institution is not uncommon; "Demnach sind die resent-
lichen Merkmale, das Vorhandensein eines gemeinsamen und unge..
teilten Nachlasses, Haus- und Tischgemeinschaft, Gemeinschaft des Ge-
winnes und Verlustes und Fehlen jeglicher Rechenschaftslegung
gegeben."
 159

Thus the socii might live together in such a fashion that a

number of things are within the control (possession) of them
all 6S). So we find it mentioned that when one brother dies
he uses the common property, whereby it is difficult to
distinguish whether he is merely using the common property
or whether his action is a pro here de gestio 69). On the other
hand, it is obvious that there are some things which are no
doubt joint property, but in actual fact can be considered
to be rather "personal belongings" which each partner can
use for his personal interests as such. This must have been
so even in the most ancient times of societas ercto non cito
and consortium 70). Indeed, in the case of joint property in
general, there is always something similar. Whether there
in any form of societas or not, the one socius will frequently
have the common res in his possession and is able to use and
abuse it. Hence the praestationes personaLes arising from
damna and sumptus- etc. z i ) .
6. - Of such a personal nature would be, without a doubt,
what each partner acquires after the societas has been
constituted 72). The question arises whether such property

OS) Cf. D. 17. 2. 52. 6. :.... fratres, p(M'cK.t Mw

indivisas hereditates
ideo retinuerunt ....
69) D.29.2.78.
7°) We may point out that in the law of succession the distinction
between familiae (Hausgut) and pecunia, .sua res (Eigengut - cf.
Kaser, Das altromische Recht (1949), p. 159 sq.) is well known and
generally accepted. (Cf. however Betti, Wesen des altromischen Fami-
lienverbands ZSS 71 (1954) p. 1 sqq. at p. 6 sqq.). Without claiming
that the difference is exactly the same, we may point out that the
joint property must have a similar division: things at the disposal
of all the partners and "personal belongings". Furthermore, in prim-
itive law, from which this division in the law of succession was deriv-
ed, the "household goods" belonged to the family as such, and was
jointly possessed by the members of the family. The head of the family
was legally merely the manager of this property. Again, the members
of the family necessarily had each their personal outfit.
71) Cf. Berger, op. cit. ch. 5-8.
72) Cf. D.17.2.52.8: stipendia ceteraque salaria; whatever is
acquired ex -maleficio, however, is excluded from the communio -
D.17. 2. 53and 54.
160

automatically becomes joint property and whether some ace

is required whereby this property become joint property -.
communicare.
It is doubtful whether the Romans set this question ir.
exactly the same way. Where we have to do with such.
"personal belongin,gs" it is obvious that the partner, as a rule,
used these things and disposed of them. However, they
formed part of the communitas and, if necessary, had to bE:
brought into the communitas - that is, everything acquired.
lawfully 73). Illegal acquisitions do not become automatically
common property nor need they to be confered into the
communitas unless the socius acquiring them has been
damnatus But it is clear, furthermore, from this that when
the texts employ the verb conf erre 75) it is employed some-
what in the same sense as collatio bonorum in the law of
inheritance: that is, each partner is entitled to call upon the
other to contribute from their "personal belongings" for the
payment of debts due to certain recognised causes. (In the
next subsection we shall return to this matter.)
This does not explain, however, whether the acquisitions
become common property automatically or not 76). It would
appear that they became the common property of the other
socii as soon as they were placed at their disposal - com-
municare. Thus, where such an acquisition is placed in a sort
of common pool, there seems to be little doubt that it becomes
common property 77). But whether the Romans of classical
times ever applied the abstract concept of a real right (that
is, dominium) in favour of the socii on such "personal belong-

73 ) D. 17. 2. 52.16. It is extremely doubtful, however, whether this

text renders the exact words of Ulpian. But the sense of it is clear.
Whatever is acquired "personally" in a lawful manner, must be con-
fered into the communitas,
74) Cf. D. 17. 2. 52.17;53; 54. Arangio-Ruiz, SocietA,p. 116 sqq.
75) D.1?.2.52.1?; 53; 54; cf. n. 57.
) Cf. Arangio-Ruiz, SocietA p. 123 sqq.
77) Cf. D. 29. 2. 78. Obviously the socii are acting in concert and
have some things available for all. These things are common property.
 161

ings" of the other is not clear. In fact it would be peculiar

if they did, considering the whole approach of the Romans
to dominium and the acquisition thereof. Especially in the
ancient law, but also in classical times, it was always linked
with the possession of the thing.
That a special act was necessary, however, to constitute
the right of joint property in favour of the other socii seems
equally doubtful. For the partner to be able to consider him-
self to be an owner of the joint property - that is for
communio to arise - the thing had to be placed at his
disposal: and in that case he could use or dispose thereof,
acting either separately or perhaps jointly. Therefore,
D. 17. 2. 74 78) can hardly be considered to reflect the law of
the societas. omnium bonorum. The text has already been
rejected as wholly interpolated 79). This is perhaps going
too far. It is obvious, in the societas unius rei or universorum
bonorum, that acquisitions do not become joint property (as
we see in the first sentence). However, the actio pro socio
could be instituted in these cases against the partner who
acquires to force him to share the benefit of the transaction.
The verb communicare is most ambi,guous and was probably
introduced to convey that the partner must share the profits
or the acquisition itself 80 ) ,
Everything with regard to the communio as a form of
joint property arising out of the societas omnium bonorum
of classical times seem to centre on the following points:
(a) the voluntas of the parties is not sufficient to constitute
the communio nor can it make any acquisitions joint
property; (b) joint property in a common pool is available
for the use and disposal of all (either jointly or separately)

78) D. 17. 2. 74 (Paulus 6e ad edictum) : Si quis societatem con-

traxerit, quod emit ipsius fit, non communi: sed societatis iudicio cogi-
tur rem cam,municnwe.Cf. Arangio-Ruiz, SocietA p. 134 sq.
7s) Index Int.
80) The verb commu,nicare is not frequently used for constituting
joint property. In D. 32.20 it is found in a passage which has already
been noted as interpolated. Cf. however, Wieacker and van Oven, as
cited in n. 57.
162

while "personal belongings" are for the personal use and

disposal of each socius. We have concluded, that for the
communi to arise, some act was necessary and we suggested
that the ancient legis actio of the consortium might have
served that purpose originally in the case of the societas
omnium bonorum. But it seems very likely that at an early
stage this legis actio was superseded by merely placing the
property of the several parties at each others disposal: that
is to say a common pool was formed which might contain
much or little and which could be increased or decreased
according to the needs of the partners. This pool was at the
disposal of the several partners and each could use it. From
the "personal belongings" contributions could be desired if
necessary. The societas omnium bonorum shows a similarity
with the modern company with unlimited liability, with this
difference that as a result of the economic and social structure
the "company assets" were a much greater part of each
member's property than is the case to-day.

7. - Each partner is severally liable for his debts. How-

ever, when a claim is instituted against him, he is, as a rule,
entitled to require his co-partners to assist him in the
payment of such debts sx ) . Naturally he could pay his debts
from his "personal belongings" as far as possible, but then
he would require the co-partners to contribute towards his
expenses. This is wholly in accordance with what we have
noticed already, namely, that the partners are required to
conf erre acquisitions. The reverse of this is to share in the
payments of the debts s2 ) . Obviously, as far as the creditors
are concerned, the partners are not jointly liable.

D. 17. 2. 3. pr. (paul= 32 and edictum) :

Ea vero, quae in nominibus erunt, manent in suo statu: sed

actiones invicem praestare debent.

) Weiss, op. cit. p. 90 with regard to the con8ortium. He considers

,,dass dann gegen alle die Personalexecution zulassig war."
82) Cf. Arangio-Ruiz, Society p. 116 sqq.
 163

It is difficult to believe that we have here the words of

a classical jurist. Especially the words actiones invicem prae-
stare, by their lack of precision, seem most improbable as
coming from a classical jurist. However, the sense of the text
is reasonably clear. Personal rights have to be enforced by
the several socii to whom such rights accrued. In the same
way the several socii will find personal actions instituted
against themselves when they happen to be debtors in an
obligation. Whatever they acquire by means of their claim
requires to be available for the communio while the claims
they have to pay out, have to be paid out of the communio
and, therefore, they may use their "personal belongings" for
this purpose as well as assets from a common pool, and even
require the other socii to contribute out of their "personal
belongings". The position is explained in more detail in
D. 17. 2. 52. 18 (Ulpianus 31 ad edictum) :

Per contrarium quoque apud veteres tractatur, an socius omnium

bonorum, si quid ob iniuriarum actionem damnatus praestiterit,
ex communi consequatur ut praestet. et Atilicinus Sabinus Cas-
sius responderunt, si iniuria iudicis damnatus sit, consecuturum,
si ob maleficium suum, ipsum tantum damnum sentire debere.
cui congruit, quod Servium respondisse Aufidius refert, si socii
bonorum fuerint, deinde unus, cum ad iudicium non adesset,
damnatus sit, non debere eum de communi id consequi, si vero
praesens iniuriam iudicis passus sit, de communi sarciendum.

Having first explained the duty to contribute (§ 17), the

next question is discussed .in how far the sociis omnium
bonorum may make use of the communio to pay his debts.
Where a claim is instituted against a socius arising ex con-
tractu it appears that there is no difficulty and the socius
may call upon the others to assist him in its solutio 83).
However, where the claim arises ex maleficio and he is
damnatus,8 without any iniuria iudicio, it is clear that he may
not call upon the communitas between himself and the socii
to satisfy the judgment. Does this mean that he may not

83) Cf. also D. 10. 2. 39. 3.

164

dispose of his "personal belongings" in such a way as to

be able to satisfy the claim?
If, in the case of societas omniusn bonoru1n the condo-
minium arising therefrom signifies a joint property which
cannot be disposed of without all the socii acting in con-
junction, it is obvious that the socius cannot employ even
his "personal belongings" to satisfy a judgment against
him - at any rate, a judgment ex delicto. He would, of
course, still be personally bound and personal execution
would originally certainly have been possible.
It would appear from the text, however, that it is envisaged
that the debtor could satisfy the judgment (si quid ob iniuri-
arum actione damnatm praestiterit). However, the com-
munitas does not avail him at all: i.e. he may not require
the socii to contribute from their "personal belongings" and,
possibly, he may not make use of the common pool. Where
else would he then acquire goods wherewith to satisfy the
judgment if not from his "personal belongings"? If this was
not the case, the position of the creditor ex delicto would be
most unenviable 84). It is, therefore, clear that the joint
property arising in the case of the societas omnium bonorum
is somewhat different from the generally accepted construct-
ion of joint property.

8. - From the several legal transactions entered into by

the socii it frequently happens that the one may have a claim
against the other. When the action communi .dividundo was
instituted such counterclaims could be compensated as praes-
tationes personales. Whether the actio pro socio could be used
for this purpose without dissolving the societas would seem
doubtful. If the actio could be instituted while the societas
remained, it would mean that the one socivs would pay the

84) Cf. De Zulueta, op. cit. p. 25, discussing the ancient societas
ercto non cito, points out that the societas omnium bo?wrum is to a
great extent derived from this ancient form. He lays down further-
more, that everything was held in common and "the common fund was
chargeable with the liabilities, other than delictual and gambling, of
the individual 30CiUS...."
 165

other - and this acquisition would go back into the com-

m2cnio t!

9. - Finally, we come to the question in how far the socius

was able to dispose of the joint property, that is, "personal
belongings" of himself and other socii and possibly such
things as were available for all the socii in a common pool.
Herewith is also connected the question in how far the socii
could use such common property and what the effect would
be of the ius prohibendi.
We have little conclusive evidence on these points. The
texts treat of these matters in regard to joint property in
general. It is possible that there was a different ruling in
the case of joint property where there was a societa,s omnium
&oo?'Mw and in other cases of joint property arising, for
instance, from confusio. Thus, in treating of these points
we come back to the law regarding joint property in general
and, therefore, it is useful to discuss the points re,garding
disposal separately below.
However, it is perhaps not amiss to mention briefly the
ius prohibendi at this stage. It is customary, when treating
of the joint property in Roman law in general, to lay down
that there is a ius p?'o6e?M available for the co-owner to
prohibit the other to use or dispose of the joint property.
It is furthermore frequently laid down that this must have
been so, in spite of Gai Inst. 154b, even in the joint property
arising from consortium. 85 ) .It is no exageration to say that
the learned writings of Bonfante are still the mainstays of
the general view. He examined the available texts thoroughly
and laid down a general rule for the condominium. His
cardinal point in regard to co9tdominium is the collegialita
between joint owners and the parallel with the collegialitd

85) Cf. for instance: De Zulueta, op. cit. p. 24; Levy, op. cit. p. 281;
Buckland, op. cit. p. 483; Frezza, L'istituzione della collegialith in dir.
rom., Studi Solazzi (1949) p. 507 sqq. at p. 536 sqq.; Arangio-Ruiz,
SocietA,p. 37 sq.; Eisele, op. cit. p. 44 sqq.; Perozzi, Un paragone in
materia di cornproprieia, Scritti giuridici (1948) vol. 1, p. 555 sqci.:
Kaser, Das romische Privatrecht, I (1955) p. 346 sqq.
166

between Roman magistrates 86). However, Bonfante wrote

before Gai Inst. 3. 154b was known, and an analogy does not
necessarily mean that the two matters are exactly similar.
Accordingly, Bonfante, while maintaining that in the case
of condominium, in general the ius prohibendi is known,
modifies its effects to a great extent 8?). He distinguishes
between "la disposizione materiale" and "la disposizione
giuridica" of the joint property. The latter can only take
place pro partie by each socius acting singly. As regards the
former he distinguishes again: "Per quel che concerne la
disposizione materiale ciascuno acquista pro parte i frutti
della cosa ed e libero, a quel che sembra, di percepirli, salvo
a rispondere di fronte ai condomini per la restituzione nella
misura in cui spettano ad essi: egli acquista per diritto di
proprieta, iure soli, senza riguardo quindi chi dei condomini
abbia seminato e piantato." Furthermore: "Libero nella sua
pienezza, in solidum, sembra inoltre l'uso della cosa conforme
alla destinazione di essa, in quanto non sia lesivo della in-
tegrita sua e del diritto degli altri condomini, ...". Finally :
"Qnanto all'attività sulla cosa che eccede i limiti dell'uso
vero e proprio, e che principalmente si manifesta, trattandosi
di immobili, nelle costruzioni, nell' opus novum, l'ordinamento
romano 6 significato dal ilus prohibendi" 88). He arrives at
this conclusion after an exhaustive survey of the texts 89).
From his examination it is very clear that Justinian wished
to introduce the ius prohibendi in general for all cases of
joint property. Furthermore that this was effected by a

Bonfante, Premesse critiche sull'ordinamento positivo del

condominio, Scritti giuridici vari III (1926) p. 376 sqq. This was men-
tioned by Eisele, Zur Lehre vom Miteigenthum, Arch. f. Ziv. Prax. 63
(1880) p. 27 sqq. at p. 71. Cf. also Frezza, op. cit. Cf., however, the criti-
cism of Perozzi, Paragone etc. and Voci, Esame delle tesi del Bonfante
sulla famiglia romana arcaica, Studi Arangio-Ruiz 1, p. 101 sqq. at
p. 141 sqq.
s7) Cf. 11 ius prohibendi nel condominio, Scritti giuridici vari III,
p. 400 sqq.
88) Bonfante, Il regime positivo e Ie costruzioni teoriche nel con-
dominio, Scritti giuridici vari III, p. 454 sqq. at p. 459 sq.
89) Mainly in Il ius prohibendi.
 167

general interpolation of texts, of which many had nothing

to do with joint property as such, but with the law of
servitudes, for example. Also, no clear answer is given as
to the manner in which this ius po/n&etM is to be exercised.
The question is whether Bonfante's conclusions may be wholly
accepted There is no doubt that the ius prohibendi was
interpolated in several texts, but this might have happened
in post-classical times. Furthermore, the ius prohibendi is
about the only rule as regards joint property about which
the law of Justinian leaves us no doubt. It was systematically
introduced in many texts wherein it had no business to be
inserted. Bonfante's conclusion is that this ius prohibendi
did not have the general application in classical times which
Justinian would like us to believe. The question is, however,
whether Justinian did not generalise a rule which was
applicable to some forms of joint property while it was not
at all applicable to other forms.
Even if a ius prohibendi developed at some later stage, it
would seem hardly likely that it would have been known in
the earlier law. It seems clear that the ancient consortium
amongst fratres was merely a continuation of the joint
household as it existed before the death of the pater. Even
before his death the fratres were considered to be joint
owners (at least, to some extent) of the household property.
The pater had the management of this joint property, but if
he was to start wasting this property away, the interests
of the descendants were protected by having the pater in-
terdicted as a prodigus 91). It seems safe to assume that in
the consortium of fratres, where each one is a pater and
each one had the power to dispose of property belonging to
the community, the other members of the community could
originally be protected in the same way, in the case where
excessive wastage was caused by the actions of one of the
members of the cvnsvrt??s,m. It does not seem wholly impro-

Cf. Perozzi's severe criticism in Un paragone.

s1) Cf. Westrup, Introduction II (1934) p. 97 sqq.
168

bable that if a ius prohibendi developed at a later stage, that,

it found its roots in the interdiction of the iorodigus.
Some more light might be cast on this question when we
examine in how far co-owners were able to use and dispose
of the joint property in general.

D.

It is necessary to be more precise when speaking of the

ability of the socius in general to dispose of joint property.
Hereby is meant the ability to effect some change with regard
to the legal status of the joint property. Thus, by delivery of
the joint property, does the socius transfer property, or could
he pledge the thing etc. ?
There is no need to labour the point that the societas
omnium bonorum was based to a great extent on the consorti-
um, which again was a development of the ancient societas
ercto non cito. Therefore, it is not assuming too much that
some rules regarding the disposal which were to be found
in the ancient societas ercto non cito or consortium were
possibly maintained in the societas omnium bonorum.
Furthermore, that some rules regarding the disposal of a
3oint inheritance, as being rules which could again go back
to the ancient societas ercto non cito, could very well have
found their counterpart in the .societas omnium bonorum.
This institution, as well as the joint inheritance, have a
common back,ground.
Furthermore, it is probable that rules relating to joint
property, where we have this joint property arising from a
societas omnium bonorum, might have differed, at some time,
from the rules relating to joint property arising from other
sources. This is a possibility which is fortified, when we
consider that in the case of joint property arising from
confusio it was not always recognised as being the object of
the actio communio dividundo.
Under these circumstances it seems a legitimate question
whether the rules governing the disposal of joint property
could not have differed when such joint property arose from
 169

a societas omnium bonorum and when it arose for other

reasons.
The texts are hardly clear on such points. Justinian wished
to give a general ruling for all cases of joint property. It is
necessary to examine some of the texts, taking into consider-
ation several types of disposition, to see whether more clarity
is to be gained.

1. - Manumissio. From Gaius' text on the consortium

there is no room for doubt that, in the case of the ancient
consortiuyn, a socius. could manumit a slave and thereby set
him free 92). Obviously this applied in the case of a formal
manumission. Furthermore, it is clear from the modes of
manumissio inter vivos that the dominus who wishes to free
his slave must have a certain physical control (i.e. possession)
of such a slave. The question now arises whether in the
classical times these rules where maintained wholly or partly.
At a first glance it seems clear that the Roman law of
classical times did not preserve these rules. At least, from
post-classical sources 93) it is very clear that in the case of
the communis servels an opposite ruling is given. Thus, where
a socius manumits his slave by means of one of the formal
modes, the slave does not acquire freedom but the master
loses his share in the slave and his share accrues to those
of his socii. On the other hand, by means of informal
manumission, nothing is achieved. The manumitting socius
retains his share in the joint property. But, even if this is
the classical law, the question arises whether this could be
the classical law were there was a societas omnizcm bonorum.
Even if we assume that the socius, when freeing a slave
(a slave which obviously forms part of his "personal belon,g-
ings" or vests in some form of common pool), does not free
the slave, it is hardly clear how the ius adcrescendi would act.
Afterall, everything is common property and, therefore, even

92) Cf. De Zulueta, op. cit. p. 24; Levy, op. cit. p. 280 sqq.; Weiss,
op. cit. p. 85 ; Arangio-Ruiz, Society p. 11 sqq.
°3) Ulp. Reg. 1. 18 ;Pauli Sent. 4. 12. I ; Fr. Dosit. 10. Cf. also Inst
lust. 2. 7. 4.
170

if the slave accrues to the other socii, it becomes again joint t

property. At the utmost it could be said that the shares of
the socii who have not manumitted the slave would be
increased when a division of the joint property is eventually
effected. On the other hand, the post-classical (or classical) ]<
rule would be quite feasible where there is no societas omniun?
bonorum. In such a case, the socius who manumits merely
divests himself of his proprietary rights in the servus com.-
munis, and those rights accrue to the other socii. It seem:;
obvious that the post-classical sources, in laying down these
rules, kept in mind community of property where there ix
no societas omnium bonorum. Possibly this is so because the
societas omnium bonorum was no longer very common in
practice 94 ) .
It is furthermore well known that Justinian introduced a
reform whereby the socius could, by his unilateral manumis..
sion, grant freedom to the servus communis. Here again, the
whole ruling 95) is based on servus communis but without;
societas omnium bonorum. The development of the law as,
explained by Justinian is not without interest. Apparently
Severus laid down, in a casus where a soldier had granted.
freedom to a servus communis, that the heirs of the soldier
should buy the pars of the socii and grant freedom to the'
slave. A further step by Severus and Antoninus made it gen-
erally a rule that the socius could not refuse to sell the shares
of the slave to the heirs in a similar casu.s, while a price
could be laid down arbitrio praetoris. If we may believe
Justinian, this ruling had its roots with the veteres iuris
-auctores. Justinian retained those rules, but generalised them
so that, whether the socius is a soldier or not, and whether
we have a manumissio inter vivos or mortis causa, the slave
if freed when the manumitting owner (or his heirs) re-
imburses the socii for their loss. Possibly the ius accrescendi
of former times is retained in the case of manumission by

94) Cf. Taubenschlag, Die Geschaftsmangel im Rechte der Papyri,

ZSS 54 (1934) p. 146.
) To be found in the constitutiones of 530 A.D. in C. 7. 7.
 171

the co-owner while the other socii are not reimbursed 96).
But for our purposes it is important that Justinian introduces
his reforms with the words: In communes servos corumque
libertatem et quando cuidam. ommo pars libertatem im-
ponentis adcrescit nec ne, et maxime inter milites, qui huius-
modi intponunt libertatem, multa ambiguitas exorta est
apud veteres iuris auctores 97 ) .
From these words it would appear that there was multa
ambiguitas in the classical law. From the sources (which are
indeed post-classical) nothing appears of such ambiguitas.
Everything seems straightforward - that is to say that the
ius accrescendi applies in the case of formal manumissio
inter vivos or mortis causa. Can it be that this ambiguitas
arose because of the different ruling in the ancient con-
sortium which left its mark in this matter on the societas
omnium bonorum ? For obvious reasons, if this was the case,
no trace is to be found in the Digest, and even the Verona-
Gaius tells us nothing.

2. - Derelictio. Closely connected with the question of

manumissio is the matter of derelictio of joint property by
one of the socii. The two institutions resemble each other in
so far that in both cases the socius attempts to divest himself
and his socii of the joint property. In both cases it is
necessary that this particular socius should have the property
in his possession. Thus, that in the case of the socius omnium
bonorum, it should form part of his "personal belongings"
or, at least, of the common pool. Does the owner in this way
lose his joint-proprietary right or not? Does his share accrue
to his socii or not? Is there a difference with regard to the
socii omnium bonorum or not?
No satisfactory answer to these questions can be given.
It is possible that this act was originally treated in the same
ways as the informal manumission of slaves; that is to say
that the owner leaving the property remained co-owner since

Although in C. 7. 7. 17 it is said to be nullius momenti.

er) C.7.7.I.pr.
172

we have here again, as in the case of informal manumission,

an act which is not derived from the ius civile. However, thist
seems doubtful when we take into consideration that owner..
ship and possession were originally closely related. Never-
theless, according to the original view of Proculus there is:
no reason to assume that by the mere dereliction the ownership
would be lost, wholly or in part. In any case, at a fairly early
stage it would appear that Roman law recognised dereliction.
of joint property.
D. 41. 7. 3 (Modestinus 6 differentiarum)

An pars pro derelicto haberi possit, quarri solet. et quidem si

in re communi socius partem suam reliquerit, eius esse desinit,
[ut hoc sit in parte, quod in toto] : atquin totius rei dominus
efficere non potest, ut partem retineat, partem pro derelicto
habeat.

This text is particularly unintelligible. There seems to be

little doubt that the ut hoc... in toto phrase cannot form
part of the original text 99). Nevertheless, it appears that
Modestinus considered a derelictio pro parte as possible.
What happens then to that part seems fairly obvious - name-
ly that the ius adcrescendi is invoked and this share accrues
to the other socii just as in the case of the manumission of
a servus communis 100). But here again we have an impossible
solution where the co-owners happen to be socii omnium
bonorum, just as the general solution, in the case of manu-
mission of slaves, led to an unsatisfactory result. It would seem
clear that in the case of such a societas the derelictio by the
one socius of the joint property (which he possesses or which
forms part of the common pool) means either that the owner-
ship is lost for all the socii (as in the case of formal manu-
mission of a slave and where there was a consortium) or that
nothing happens to the ownership (as in the case of informal

98) Cf. D. 41. 7. 2. I.

es) Cf. Bonfante, Il ius adcrescendi nel condominio, Scritti Giuridici
vari III, p. 434 sqq.; Eisele, op. cit. at p. 42 sqq.
i°°) Bonfante, I.c.
 173

manumission according to post-classical sources). No doubt,

in the second case, there would be a iusta causa u.sucapionis
:for the person acquiring and retaining the possession of this
property in good faith 101).

3. - Servitutes. There does not seem to be the slightest

ambiguity on the law concerning the creation of servitudes.
It is impossible for a servitude to be instituted on the
common property on behalf of a socius, nor can a single
socius constitute a servitude in favour of a third party over
the joint property. However, the socii can create a servitude
over the joint property by acting together or even separatim,
but then such a servitude is only established when all have
granted the servitude 102).
There is no trace of any particular rule in this matter
where we have to deal with the societas omnium bonorum,
and there is no reason to expect anything different from the
rules as stated above. If one of the socii omnium bonorum
were to have a fundus among his "personal belongings", there
is no reason why he should not ,grant a servitude over such
a fundus. If he were to object to the third party exercising
the ceded rights, the reply would obviously be, that this
seeing personally, cannot invoke the fact that the
servitude cannot be created by a joint-owner individually.
Such would be the case against all socii who had ceded
the servitude. It must be remembered that even if the
socius cedes a servitude, the fundus remains in his pos-
session. It remains "personal property" or remains part
of the common pool. In fact, a fundus would be one of
the things that most frequently forms part of the common
pool and would be inhabited communally by the joint owners
or socii omnium bonorum. The reason for the difference
between the possible solution in the case of manumission of
a joint slave or dereliction of joint property by a socius

loi) Cf. D. 41. 7. 4.

102) Cf. D. 8. 3.11; 19; 32; 33. pr.; 134 ;D. 8. 4. 18 ;D. 39. 3. 10. pr.
Cf. also Eisele, op. cit. p. 44,48.
174

omnium bonorum (namely that the unilateral act of the, socius

has effect against all) and the solution in the case of creation
of servitudes (where the unilateral act has effect as against
the particular socius only) seems to lie therein that, in the
first cases, the common property is no longer in the
possession of any of the socii, while in the case of servitude,?i,
the fundus is still part of the "personal belongings" of the
socius, or forms part of the common pool. The same principl.e
is to be found in the rule that the socivs cannot dispose of
more than his share by will 103).

4. - Alienatio. A crucial matter is the power of the joint

owner to alienate the joint property. There are a number o:f
texts giving different solutions and very often giving no
clear answer. It is generally agreed that as regards the
ancient consortium and societas ercto non cito, the text o:E
Gaius lays down the rule that each joint-owner may alienate
the joint property xo4). However, it has also been suggested
that the other socii may exercise the ius p?-ohibendi and
thereby prohibit an alienation wherein they do not con-
cur 105).
It may be pointed out here, that alienation by the several l
socii being permissable, seems to fit in logically in the whole
structure of consortiuyn or societas ercto non cito. It naturally
presupposes that the socius who alienates disposes of "personal
belongings" or of things out of a common pool. If he acquire8
anything in exchange (e.g. where he sells and delivers joint
property) this becomes part of his "personal belongings" or

1°3) Cf. D. 31. 89.1 which probably refered to consortiurn originally.

1°4) This follows from the generally accepted reconstruction oi'
the text in fine by Arangio-Ruiz. It may be pointed out that a text such
as D. 28. 2. 11which maintains that the firi familias obtain the libero.
adrrcinistratio of the estate whereof they were owners (to a certain
extent) even during the lifetime of the pater, sustains this view. Cf.
also, Westrup, Introduction III (1939) p. 266 sqq.; Arangio-Ruiz:
Societa p. 11 sqq.
l05) Cf. supra n. 85; more in particular, De Zulueta, op. cit. p. 24;
Levy, op. cit. p. 281; Buckland, op. cit. p. 483.
 175

falls (communicate) into the common pool. If he alienates

anything in an irresponsible manner he will owe a praestatio
personalis to his socii which will have to be settled when the
consortium or societas ercto non cito is dissolved. If this was
not the position, and if he could only transfer the property
in a thing when the other socii would concur, it would mean
that he could not effectually give alms or an old garment to
a beggar or throw a crust to a stray dog.
Furthermore, it is possible that the other socii had the ius
prohibendi. However, as regards consortium or the societas
ercto non cito, we have nothing showing either for or against
such a ius prohibendi. But even if there was such a ius
prohibendi it is very doubtful (as has been said supra) that
this could have been of the same nature as the ius prohibendi
which we know from the sources concerning joint ownership.
At any rate, the ius prohibendi as we know it, does not seem
to have been invoked in the case of legal dispositions concern-
ing the j oint property, but in regard to material dispositions.
Hence it is generally accepted that in the case of legal
dispositions in general, and in the case of alienation in
particular, a co-owner in classical times could dispose validly
of joint property pro parte but could not dispose of the
whole It is to be noted that, as a rule, no difference is
made between the joint ownership arising from a societas
omnium bonorum or from some other source. It may be added
that in the case of the societas omnium bonorum a ruling
similar to that to be found in the case of consortium or societas
ercto non cito would be practicable for the same reasons
which we have mentioned already; and the generally accepted
view of the classical law, no matter how favourable in the
case of joint property where there is no societas omnium
6o?K?rM.w,would make matters extremely difficult in the
case of such a societas. For if the socius were e.g. to sell his
pro rata share in a fundus held jointly, what would happen
to the price received? Would it become joint property or
remain his separate property? The latter would mean that

1og) Cf. Bonfante l.c in n. 93.

 176

there is no societas omnium bonorum any longer. The quest-

ion arises, therefore, whether the ancient ruling of con-.
sortium and societas ercto non cito was not retained (perhapq.
in a modified form), at least as far as the societas omnium.
bon.orum is concerned..
There seems to be no definite answer to this question. The
general rule from the texts seems to be that alienation pro
parte only, is valid. On the other hand, there seem to be
traces (however slight) of a ruling similar to the one found
in the case of the ancient consortium. and societas ercto non
cito. Whether these traces concern the societas omnium bono-
rum is another question which apparently remains open. But
let the texts speak for themselves.
i) D. 17. 2. 67. pr. (Paulus 3z ad edictum) :
Si unus ex sociis rem communem vendiderit consensu sociorum,
pretium dividi debet ita, ut ei caveatur indemnem eum futurum.
quod si iam damnum passus est, hoc ei praestabitur. sed si pre-
tium communicatum sit sine cautione et aliquid praestiterit is
qui vendidit, an, si non omnes socii solvendo sint, quod a quibus-
dam servari non potest a ceteris debeat ferre? sed Proculus putat
hoc ad ceterorum onus pertinere quod ab aliquibus servari non
potest, rationeque defendi posse, quoniam, societas cum contra-
hitur, tam lucri quam damni communio initur.
This text has been considered as interpolated, and the
words indemnem eum futurum have been attacked and quid-
quid evictionis nonine praestiterit pro parte restitui was
suggested as an alternative. However, there seems to be no
reason why the compilatores should have brought such a
change about. It seems more peculiar that a price should
be divided ita ut ei caveatur. Dividi debet et ei cavetur would
seem to be more acceptable. Such a change would not,
however, be of great importance to the text as a whole
The main fact is that the one socius can effectively alienate
consensu omnium. Obviously this alienation is effective as
regards third parties as well as the socii. Whether we have
a societas omnium bonorum or of another kind is not quite

1°') For the interpolations, cf. Index Int. However, also Arangio-
Ruiz, Societa, p. 85-86 for a more recent and more conservative view.
 177

clear. It could be the one as well as the other. However, we

find a ruling here regarding alienation by one socius of a
res communis and it is a ruling concerning the rights of the
socii inter se. It is unfortunately not expressly laid down,
but the obvious inference seems to be that, if one socius can
validly alienate (and this is effective as far as the buyer is
concerned as well as the other socii), then, if he were to
alienate without the consent of the other socii this alienation
is also valid as regards the third parties: naturally we may
presume that this is so in the case where the third party
who buys is wholly bona fide. It seems improbable that the
consensus of the other socii should play such an important
role that the alienation should be effective as against the
bona fide third party, in the case where this consensus. is
given, but not where it is withheld. Such a ruling would be
more acceptable in a post-classical period wherein the con-
sensus plays an increasingly important part.
Nevertheless, there is no clear-cut answer given to the
question in the case where the one socius alienates and the
others are not in agreement or have not been consulted.

ii) C. 4. 52.4 (Impp. Dioclet?anus et Maxinianus. AA.

et CC. Ulpiano militi) :

Portionem quidem tuam militantis alienare frater tuus non

potuit. euis autem partem pretio soluto tibi restitui postulare
nee militari gravitati convenit.

This text makes it clear that alienation pro parte is

effective. It is most probable that this constitution of Dio-
cletian and Maximian reflects some aspect of classical law.
Furthermore, it may concern a case of societas or a case of
joint ownership arising sine societate, but most probable
there is no community of all property in the form of a
socetos omnium bonorum. It would seem more probable that
we have a joint inheritance which accrued to the two brothers
while the one was campaigning. The other thereupon disposed
of the soldier's share pro rata. However, it may be kept in
mind that if a pro parte sale of the interest in a societas
178

omni2tm bonorusn were permissible, it would mean, that by

means of this sale, the selling socius steps out of the societus
leaving a new partner for his former socii.

(iii) D. 17. 2. 68 pr. (Gaius 10 and edictum provinciale) :

Nemo ex sociis plus parte sua potest alienare, etsi totorum bono-
rum socii sint.

This text seems to be clear beyond all reasonable doubt on

the specific point in question. To bring it in harmony with
the first text discussed, the obvious conclusion seems to be
that Gaius has in mind the alienation where there is no
consensus amongst the socii. He is most emphatic that
alienation is only possible pro parte, even where we have a
societas omnium bonorum,. This seems, furthermore, to be
an unimpeachable classical text and, therefore, it seems clear
that any text which is (or can be) interpreted as laying down
the rule that alienation by the one socius of joint property
in toto is possible, must be wrong However, in assessing
this text of Gaius, it should be noticed that we have to do
with his commentary on the edictum provinciale. There is no
reason to doubt that alienation pro pce was known in Rome
as well as in the provinces. It is not impossible that in Rome
cases of alienation in toto were recognised.
Another point of importance to note is that Gaius stresses
the fact that only alienation pro parte is permissible, even in
the case of a societas omnium bonorum. The fact that he lays
stress on the societas omnium 6oo?'M might be significant:
that is to say, there might have been recognised, in classical
times, an alienentio in toto by the socius of "personal belong-
ings" or of property out of the common pool in the case of a
societas omnium bonorum ; that all this changed as this type
of societas. became less common, and that Gaius stresses this
change. Perhaps this whole text merely indicates that the
sale of all joint property in toto is prohibited as in the case
of a joint heritage. We may point out again, that if the

1°8) Cf. Frezza, op. cit. at p. 531 sq.

 179

socius in a societas omnium bonorurrt was wholly unable to

alienate "personal belongings" or property out of a common
pool (with or without a ius prohibendi for the other socii)
the societas omnium bonorum would be a remarkable drag
on the economic and social activities of its' members.
However, it must be admitted that this text seems to lay
down a general rule which cannot, in fairness, be easily
impeached.

(iv) D. 17. 2. 16. 1 (Ulpianus 80 ad Sabinum) :

Qui igitur paciscitur ne dividat, nisi aliqua iusta ratio intercedat,

nec vendere poterit, ne alia ratione efficiat, ut dividatur. sed
sane potest dici venditionem quidem non impediri, sed excepti-
onem adversus emptorem locum habere, si ante dividat, quam
divideret is qui vendidit.

D. 10. 3. 14. 3 (Paulus 8 ad Plautium) :

Si inter socios convenisset, ne intra certum tempus societas divi-

deretur, quin vendere liceat ei, qui tali conventione tenetur, non
est dubium: quare emptor quoque communi dividundo agendo
eadem exceptione summovebitur, qua auctor eius summoveretur.

According to the first text, where we have a case of joint

property and an agreement not to divide without good reason,
then no sale can be valid nor can a division be effected by
any other act. Does this meant that the sale of joint property
in toto is intended or the sale pro parte ? However, the sale,
even if it is a sale pro parte, does not effect a division of
the joint property, and if an alienation pro parte is intended
(as the text is usually interpreted) the remaining socius
retains his pro rata undivided share. Therefore, there seems
to be no reason to assume that the first sentence does not
bear in mind the alienation pro parte as well as the alienation
in toto. If this is so it is permissible to conclude that, in the
case where there is no agreement not to divide, then the sale
pro parte as well as in toto is permissible; if not in every
case, at least in some.
The final sentence of the first text (sed sane etc.) has been
180

signalled as an interpolation for the reason that it ii5

contrary to the first clause and hardly in accordance with
the other text of Paul. Whether we have to do with an
addition by the ,compilers or by some post-classical jurist,
it is clear that now the case of a sale of the share is. envisaged.
The sale is not invalid because no division is effected thereby,
but should the new joint owner institute an action for
division, an exception is permissible. The question arises:
which exception? Is it perhaps the exceptio doli where the
second co-owner is aware of the agreement of the first? It
seems doubtful that an exceptio pacti conventi would be
succesful against the second co-owner.
As regards the second text the same agreement is found.
that the property will not be divided. As regards sale of the'
joint property, no mention is made whether the sale is prc
parte or in toto. It seems probable, from what we have said
before, that here, again, the sale in toto is (at the least) also
intended, because a sale pro parte does not effect a division.
But the compiler or post-classical jurist, who added the
quatre etc. - clause, clearly interpreted it as a sale pro parte
(which sale, contrary to the previous text, is here stated to
be valid) and introduced the same unsatisfactory solution
of the unnamed exceptio against the new co-owner's actio
communi dividundo.
These text would seem to assume that the sale of joint-
property in toto was prohibited by an agreement not to
divide. This agreement would seem to imply that sale in toto
(as well as pro pacrte) would be permissible where there was
no such agreement. Such an agreement would have effect
only as rpgards the parties and not as regards third parties.
Thus it would seem that it would not be impossible (at least
in some cases) for a partner to sell effectually joint property.
And if there is an agreement not to divide, such a sale would

Bonefante, Rapporto tra la communione e la societh, Studi

giuridici vari III, p. 511 sqq. at. p. 514; In general cf. van Oven, Societas
ad tempus coita, Studi in onore di Vincenzo Arangio-Ruiz, II p. 453
sqq. n. 9.
 181

give rise to a pfeso personalis which would be due from

the one socius to the other.

(v) D. 10. 3. 6. 1 (UlpianW1 19 ad edictum) :

Si quis putans sibi cum Titio fundum communem esse fructus
perceperit vel sumptum fecerit, cum esset cum alio communis,
agi poterit utili communi dividundo iudicio. (1) Quare et si fun-
dum Titius alienaverit, licet hic communi dividundo iudicio locus
non sit, quia a communione discessum est, utili tamen locum
fururum, quod datur de praestationibus, quotiens communis esse
desiit.

D, 17. 2. 17, pr. (Paulus 6 and Sa,b2num) :

Sed et socius qui alienaverit contra pactionem [accipit, committit
et] tenetur societatis [aut communi dividundo] iudicio.
Both these texts are corrupt, but it seems permissible to
deduce from both of them a case of alienation by one socius
of the common property in toto. The fact that the texts are
so corrupt seems to denote a later emendation of the text to
change the original classical law into either late classical,
or post-classical or Justinian law. There is no doubt that in
such later times the alienation in toto is taboo and the
alienation pro parte acceptable only.
In the first text (whereof the second sentence is important
for our purposes) Titius is impossible and socius has been
suggested as a substitute; and furthermore the matter of
the utilis actio communi dividundo in this regard has been
claimed to be interpolationsverddektig 110).
The second text is obviously corrupt and reads better if
accipit, committit et is rejected while aut communi dividundo
seems equally doubtful 111 ) .Nevertheless, even if these texts
are impossible to reconstruct wholly, yet it appears that
something remained in classical times of the rule which we
know of in the case of the ancient consortium, that is, that
the one socius can validly alienate joint property in toto.

llo) Berger, op. cit. p. 203 sqq.; Lenel, Das Edictum Perpetuum
,(3rd Ed.) p. 211.
Berger, op. cit. p. 204 and Index Int. ad h. 1.
182

vi) D. 4.7. 12 (Mareianu.s 14 institutionum) :

Si quis iudicii communi dividundo evitandi causa rem alienaverit,
ex lege Licinnia ei interdicitur, ne communi dividundo iudicio
experiatur: verbi gratia ut potentior emptor per licitationem
vilius eam accipiat et per hoc iterum ipse recipiat. sed ipse
quidem qui partem alienaverit communi dividundo iudicio si
agere velit, non audietur: is vero qui emit si experiri velit, ex
illa parte edicti vetatur, qua cavetur, ne qua alienatio iudicii
mutandi causa fiat.
We have two different situations here. In the one case the
co-owner alienates the whole joint property and, in the second
case, only his share. The lex Licinnia 11.2) deals with the first
case and the praetorian edict with the second. It is, however,
perfectly clear that the alienation by one co-owner is valid
in some cases. This text does not tell us when it is so. It
seems feasible that we have here a survival of the rule of
consortium and that the alienation of the whole thing held
in joint property survived in the case of the societas omnium
bonorum 113). It may be added that the question arises
whether the lex Licinnia, which is directed against an aliena-
tion not in the interests of the other socii, does not ,go to show
that the ius prohibendi was formerly non-existent and,
indeed, not even necessary.

(vii) D. 10. 2. 13 (Papinianu,s 7 quaestionum) :

Alienationes enim post iudicium acceptum interdictae sunt dum-

taxat voluntariae, non quae vetustiorem causam et originem
iuris habent necessariam.

There is no reason to doubt that the iudicium is the iudici-

um f amiliae erciscundae, and it would seem clear, a contrario,
that alienationes before litis contestatio were in order. It may
be that reference is made to alienationes pro parte, but if
alienationes in toto were sometimes possible (as the texts
mentioned above have made us suspect) then the prohibition

i12) The doubts concerning the existence of this lex were removed
by the discovery of Gai Inst. 4. 17a. Cf. Levy, op. cit. p. 294 sqq.
im) Cf. Frezza, op. cit. p. 532 sq.
 183

of alienationes in toto would be very logical in the case

mentioned in this text. Indeed, this text has been rejected as
interpolated and is most probably edited ii4), Nevertheless,
iudicium would hardly seem a term the compilers would
use, in this case, so that the first statement: Alienationes
enim post iudicium cccceptum interdictae sunt may be
accepted at its face value, and might refer to an alienation
in toto, at least in classical times. Indeed, it does not seem
improbable that in this text we have a reference to the rule
of the tex Licinni£ and the praetorian edict mentioned in the
previous text.

(viii) C. 2. 18. 19 (Impp. Diocletianus et Maximianus AA.

et CC. Alexandro) :

Ab uno herede pro solido re veluti communi venumdata de pretio

coheres venditoris negotiorum gestorum ratam faciens venditi-
onem agere potest.

C. 3. 36. 20 (Impp. Diocletianus et Maximianus AA. et CC.

Pactumeiae) :
In familiae erciscundae iudicio ab uno pro solido rei veluti com-
munis venumdatae pretium non venit, sed mandati, si praecessit,
coheres venditoris agere potest, vel negotiorum gestorum, si
ratam fecerit venditionem. nam si velut propriam unus distraxit
ac pretium possideat, hereditas ab eo petenda est.

D. 10. 2. 44. 2 (Paulus 6 ad Sabinuxn) :

Si coheredes absente uno coherede rem vendiderunt et in ea re

dolo malo fecerunt, quo plus ad eos perveniret, vel familiae ercis-
cundae iudico praestabunt ei qui afuit vel hereditatis petitione.

In these three texts we have to do with co-heirs and a joint

inheritance. As is suggested in the Krfger-Mommsen edition
of the code, the two constitutions may actually be one and
the same: the first laying down' a general rule while the
second gives us more details. As regards the first constitution,
the one heir alienates the joint property in toto. This is

114) Cf. Index Int. ad h. 1.

184

clearly in accordance with the ancient consortium rule; that

is to say, the sale is effective as against the third parties,
but the co-heirs have a claim against the acting co-heir. From
the second text we see what action the coheredes may
institute de pretio: the actio mandcrti if there was a man-
datum; the actio negotiorum gestorum of there was no
m.ccndatum. Thus the co-owner who sells, is re,garded as the
negotiorum gestor of the other owners. In both these text,,3
ratification is required as an essential before the actio
negotiorum gestorum may be instituted. This seems alto-
gether wrong if we keep in mind the general tenor of thi:?
action. In the text attributed to Paul, it has been suggested
that interpolations are present 115), but with regard to the
final praestabunt etc. Indeed, the style is unfortunate and
Paul allows the claim de pretio to be settled by means of the
iudicium fanciliae erciscundae while the second constitution
excludes this possibility. It seems more likely that the point
about the actio fawziliae erciscundae was interpolated, since
Justinian 11s) allows this action for the claim of what is due
under the quasi-contractual relationship arising amongst co-.
heirs, without thereby necessarily effecting a division of the
joint inheritance. It is possible that the mention of the
hereditatis petitio is also introduced in the text attributed',
to Paul in accordance with the subsequent constitution of
Diocletian. It is not clear why the hereditatis petitio should.
succeed against the heir who alienates common property..
Perhaps it is intended to make a ius po&et in this par..
ticular case effective Of course, it must be kept in mind.

Cf. Berger, op. cit. p. 191 sq.

11'6) Cf. Inst. lust. 2.27.3-5.
117) With regard to this matter we may still mention D. 27. 9. 7. pr.
(Ulpianu8 35 ad edictum) : Si pupilloru?n sint communia praedia quz
diversos tutores habent, videamus, an alienatio locum habere possit. et
cum prrovoca.tionecessaria sit, rncto atienationem impediri : neuter enim
poterit provocare, sed ambo provocationem exspectare. itein si eosdem.
tutores habeant, m2tlto magis quis impeditam alienationem dicet. We
have the case of communia pf(M<Haamongst several pupilli with several
tutores. The Oratio Severi prohibited the alienation of immovables by
tutores, and the question is whether, in the case of joint property, a
 185

that alienation of the whole necessarily implies (as we have

said before in the case of consortium or societas ercto non
cito) that the co-heir has possession of the common property
or, at least, that it is to some extent at his disposal in the
same measure as it is at the disposal of the other joint owners.
From the texts which have been treated above, it would
appear that something survived in classical law of the power
of the single joint owner to alienate joint property in toto.
There seems little doubt that this was maintained in joint
property arising from a joint inheritance even in the law of
Justinian. Whether this rule survived also in the classical
concept of the societas omnium bono7?um is not wholly clear,
but it appears to be an attractive and practical hypothesis.
Whatever the extent of this rule was in classical times, and
whether it actually applied in the case of the societas omnium
bonorum (and only in that case) is completely obscured for
the reason that at some period (and, at least, in post-classical
times) another rule regarding alienation of joint property
by one of the joint owners was also present as appeared from
the one text already mentioned 118). This rule completely
superseded the remnants of the rule that the socius may
alienate in toto, and may be considered the general rule in
the law of Justinian. The existence of the two rules, side by
side, in late or post-classical times, seems to follow from
another constitution, also of Diocletian, where the exact
opposite seems to be maintained to that which we found in
his constitutions reported in C. 2. 18. 19 and C. 3. 36. 20.

(ix) C. 4. 52. 5 (Impp. Diocletianus et Maximianus AA.

et CC. Olympiano) :

tutor may alienate. Obviously in this case, too, alienation is not per-
missible. But the fact that the question is put, demonstrates that
before the 0ratio alienation by a tutor was permissible and effective.
Unfortunately the text does not say whether the tutor could alienate
in toto or pro parte. The fact that provoccctiois mentioned shows that
the text is not quite logical. Provocatio, according to the Ordtio
(27. 9.1.1) is necessary where division is to be effected and has nothing
to do with alienation.
"18) Cf. D,17. 2. 68. pr.
186

Si maior annis viginti quinque velut propria nesciens communi?

cum fratribus tuis praedia distraxisti, licet nullum instrumeiitura
intercesserit nec quicquam specialiter convenit, alienae portionis
evictione secuta quanti interest emptoris solves.

Here we have an alienation of common property in tot??

by one of the joint owners. However, such an alienation i,3
only valid pro parte. For the buyer of the joint property
is evicted and this happens because the other socius, who
did not sell his share, must have reclaimed his share front
the buyer. Thus the sale of joint property in toto by one of
the joint owners is obviously not effective against the third
parties and a real action can be instituted by the joint owne??
who finds the joint property sold to a third party. Thus, if
we compare the, texts (nos. VIII and IX), Diocletian lay:;
down two rules: in the one case (no. VIII) the joint owner
can effectively alienate the joint property, and in the other
case (no. IX) he cannot do so.
Is it possible that we have a rule, in the second case, where
joint property arises and there is no societas omnium bono;
Or are we to suppose that the buyer was mala f ide
There is no answer. All we may conclude is that remnants
of the rule that the joint owner may alienate joint property
survived in classical times, and it seems likely that it was
applied in the case of joint property where we had a societas
omnium bonorum and the one socius alienates "personal.
belongings" or property in a common pool.

5. - Peclonia. In connection with the alienation of joint;

property, a few cases may be mentioned separately where'
money is disposed of by a joint owner. Here a,gain we-
apparently find completely opposite solutions of the same
problem. We may accept (as has already been said before)
that in the case of the consortium or societas ercto non cito
the socii could pay debts and claim a contribution from the
other socii. The payment is then effected from "personal
belongings" or a common pool. This was, no doubt, the case
in the societas omnium bonorum as well, at least, with money
from the "personal belongings" of a socius. But could the
 187

socius employ money belonging to the socii jointly, and use

it and alienate it validly as against third parties ? 1

(i) C. 3. 38. 4 (Impp. Diocletianus et Maximianus AA.

ad Mrxximum ) :

Si patruus tuus ex communibus bonis res comparavit sibi nego-

tium gerens, non omnium bonorum socius constitutus, pro com-
petentium portionum modo indemnitati tuae consuli oportet: et
ideo rem emptam eum communicare contra formam iuris postulas.

C. 4. 50. 8 (Impp. Diocletianus et Maximian,us AA. et CC.

Maxima Valentinae) :

Qui aliena pecunia comparat, non ei cuius nummi fuerunt, sed

sibi tam actionem empti quam dominium, si tamen ei fuerit tra-
dita possessio, quaerit. cum itaque de rebus communibus fratrem
patruelem tuum quaedam comparasse contendas, de tua pecunia
hunc conveniendo facies consultius: nam in rem de rebus ab eo
comparatis tibi contra eum petitio non competit.

In both cases we have a person who purchases with funds

belonging to himself and another from a third party. In both
cases the question is discussed in how far the purchaser is
bound to reimburse his socius. But although it is not stated
in so many words, it is clear that the payment by the one
party of the money, makes the seller owner thereof. This
may be inferred from the fact that the rights of the socii
as between themselves only, is discussed, and no mention is
made of any claim against the seller in favour of the socius
who did not purchase. Thus, the alienation of money is appar-
ently valid as against third parties. From the words: non
omnium bonorum socius constitutus it would appear that this
is true all the more so in the case of such socii.

ii) D. 17. 2. 67. 1 (Paulus 8z ad edictum) :

Si unus ex sociis, qui non totorum bonorum socii erant, com-

munem pecuniam faeneraverit usurasque perceperit, ita demum
usuras partiri debet, si societatis nomine faeneraverit: nam si
suo nomine, quoniam sortis periculum ad eum pertinuerit, usuras
ipsum retinere oportet.
188

Here again, it appears that the one socius may dispose o.f
communis pecunict. It is possible that, according to thei:r
agreement, he had the right to lend it out at interest or acted
as negotiorum gestor on behalf of the socii. From the fact
that the case is distinguished from that of the socius omniurn
bonorum it seems clear that such a socius omnium bonorurn
could validly dispose of pecunia communis (at least, such as
is in his possession or available from a common pool). This
right formed part of the rights and obligations arising from
such a societas. This text is all the more valuable, since it
is confirmed from a post-classical source other than the com-.-
pilation of Justinian i19 ) . It would, therefore, appear that the
text retains it post-classical, if not classical, form in the com.-
pilation of Justinian 120).
On the other hand, one would expect that Justinian (oi
perhaps some post-classical writer) would insert here that
alienation pro parte only, was permissible. That would have
brought the text in complete agreement with

(iii) D. 12, 1, 16 (Paulus 8z ccd edictum) :

Si socius propriam pecuniam mutuam dedit, omnimodo creditam.

pecuniam facit, licet ceteri dissenserint: quod si commune
numeravit, non alias creditam efficit, nisi ceteri quoque consen-
tiant, quia suae partis tantum alienationem habuit.

Obviously, no agreement has been reached, in this case,

empowering the socius to alienate the pecunia communis, nor
do we have a case of a societas onlniun bonorum. Never-
theless, it is difficult to reconcile this text with the others
and, therefore, it would appear to render post-classical law
(in some particular case) or the views of Justinian.

6. - Real security. Where a j joint owner wishes to

constitute real security over joint property in favour of a
creditor, the question arises whether such property can be

lia) Fragmenta Bodleiensia II; cf. Girard, Textes, (1937) p. 460;

Riccobonoetc., Fontes, II (1940) p. 423.
12°) Arangio Ruiz, SocietAp. 86 sq.
 189

given as security in toto or pro parte only. It should be borne

in mind that Roman law had known three forms of real
security. Where security in the form of fiducicc or pledge is
constituted, it would seem obvious that this can only be done
over things whereof the debtor has control, i.e. forming part
of his "personal belongings" or falling within a common
pool, since ownership or possession has to be transferred to
the creditor. But in the same way as ownership could be
passed by mancipatio and in iure cessio and traditio merely
pro parte, in the same way it can be imagined that fiducia
could be constituted by the debtor pro parte : and possibly
without having control of the joint property. However, the
question is: could the joint owner constitute real security
over joint property in toto? Would the creditor in such a
case have a real right over that property in toto? If we
consider the law of the ancient consortium and societas ercto
non cito concerning the liberation of slaves and concerning
alienation, it seems logical that here, also, the one owner
could dispose in the form of real security over the thing
in toto. Whether this was the rule in the case of joint
property at a later stage, or, more particularly, whether this
rule was retained for joint property in the case of the societas
omnium bonorum, is another question. We may add that it
seems economically sound that the one socius in such a
societas may grant real security over "personal belongings"
or property from a common pool, and that such real security,
in the form of fiducia or pledge, would cover the property
in toto.
When we come to the other form of pledge, namely hypo-
theca, the position is different. Here the security is
established without any regard to possession, but mere agree-
ment is sufficient. If by mere agreement security could be
established over joint property, it seems logical that this
means over all property. Thus, that the socius in a societas
omnium bonorun could establish a hypotheca also over the
property in the possession of other socii. It seems logical
that, since mere agreement could create this real right, this
right could only cover the pro parte share of the debtor.
190

What the law of Rome was on these points is not quite

clear. In general it would seem that the attitude is adopted
that real security in the case of joint property can only be
established pro parte. Such seems to be the rule as laid down
in the sources. No distinction, furthermore, seems to be made
between joint property where there is a societas omnium
bonorum or otherwise. Also, no mention is made of fiducia,
obviously, in the texts; but on the other hand, the term
pignus is employed and could mean just as well the pledge
as hypo theca. Nevertheless, it would appear that traces are
ascertainable of a different ruling from that which in
generally accepted as the law of Rome according to the texts.,
Whether these traces are left over from consortiu?rc seems
likely, but it is not certain. Whether these traces, further..
more, survived in the classical societas omni2cm bonorum.
seems likely, but also uncertain.
We may mention that in a number of text the real security
pro parte is mentioned. Although the term pignus is em-
ployed, it is more probable that we have to do with hypotheca
than with pledge.

(i) D. 10. 3. 7. 13 ( Ulpianus 20 ad edictum) :

Si debtor communis praedii partem pignoxi dedit .....

D. I0. 3. 6. 9 ( Ulpianus 19 ccd edictum) :

Idem Iulianus scribit, si is, cum quo servum communem habe-
bam, partem suam mihi pignori dederit .....

D. 17, 1. 38 (Marcellus libro singulari responsorum) :

..... quaero, an domus pars, quam Titius obligandam filio suo
accommodavit .....

D. 20. 4. 3. 2 (Papinianus 11 responsorum) :

Post divisionem regionibus factam inter fratres convenit, ut, si

frater agri portionem pro indiviso pignori datam a creditore
suo non liberasset, ex divisione quaesitae partis partem dimidiam
alter distraheret. pignus intellegi contractum existimavi, sed
 191

priorem secundo non esse potiorem, quoniam secundum pignus

ad eam partem directum videbatur, quam ultra partem suam
frater non consentiente socio non potuit obligare.

In the last text it is interesting to note that Papinian

expressly declares that the real security, extending ultra
partem, cannot be constituted, except consentiente socio. This
rule is also to be found in imperial constitutions and seems
to be of late or post-classical times. It is furthermore clear
that, where the real security is granted in toto by a joint
owner, then no real right in toto is acquired for the creditor,
but he only has a right pro parte. Whether this rule is a
development due to hypotheca seems to be possible, but no
positive proof seems to be available. Nevertheless, the con-
stitutions seem to be laid down with a view to cases of hypo-
theca, and where one joint owner binds (obligare) the joint
property.

(ii) C. 3. 37. 2 (Imp. Alexander A. Avito militi) :

Si probatum fuerit praesidi provinciae fratrem tuum vineas

communes pignori dedisse, cum partem tuam, quam in vineis
habes, creditori obligare non potuerit, praeses provinciae restitui
tibi eam iubebit cum fructibus, quos creditor de parte tua per-
cepit. (1) Idem praeses provinciae de divisione vinearum inter
te et creditorem fratris tui cognoscet et iubebit eum accepta
pecunia, quanti statuerit partem fratris tui valere, earn partem
quam de fratre tuo accepit tibi restituere aut aestimata tua
parte ad creditorem fratris tui data pecunia. quanti aestimaverit
eam transferre.

C. 3. 38. 7 (Impp. Diocletianus et Maximianus AA. et CC.

Severiano et Flaviano) :

Si fratres vestri pro indiviso commune praedium citra vestram

voluntatem obligaverunt et hoc ad vos secundum pactum divi-
sionis nulla pignoris facta mentione pervenit, evictis partibus,
quae ante divisionem sociorum fuerunt, in quibus obligatio
tantum constitit, ex stipulatu, si intercessit, alioquin quanti
interest praescxiptis verbis contra fratres agere potestis. nam
si fundi scientes obligationem dominium suscepistis, tantum evic-
tionis promissionem sollemnitate verborum vel pacto promissam
probantes eos conveniendi facultatem habetis.
192

C. 8. 20. 1 (Imp. Antoninus A. Venusto) :

Frater tuus, sicut vobis invitis portionem vobis competentem

obligare non potuit, ita suam dando obligationem creditori quac-
siit. unde intellegis nullum praeiudicium dominio vestro contrac:-
tum eius facere potuisse.

On the other hand, we do find some texts wherein the joint

property is given in real security in toto and the rights of
the creditors are established over the joint property in totci.
apparently.

(iii) D. 10. 3. 6. 8 (Ulpianus 19 ad edictuwz) :

Si fundus communis nobis sit, sed pignori datus a me, venit

quidem in communi dividundo iudicio, sed ius pignoris creditoiii
manebit, etiamsi adiudicatus fuerit: [nam et si pars socio tradita
fuisset, integrum maneret.] arbitrum autem communi dividundo
hoc minoris partem aestimare debere, quod ex pacto vencier??
eam rem creditor potest, Iulianus ait.

It has been suggested that tradita should be replaced with

mancipata 121). If this is so it seems likely that the text
originally treated of a case of fiducia. But indeed, the nam et
sentence hardly seems to be ad rem and may be ignored for
our purposes. In fact, the sentence may be an interpolation
to stress the fact that real security may only be constituted
pro parte. For when we consider the text we have a case
where real security is constituted over joint property ( fiducia
or pledge or hypothec?a: it is not clear what form thi:>
security took) by one of the socii. The right of the creditor
(obviously his security over the whole) is maintained. Indeed,
with the division, as amongst the partners, the fact that the
one has conceded a real security in toto over the joint proper-
ty gives rise to a pestao personalis due to the other soC'U
and which is settled at the division. Ulpian is a contemporary
of Papinian. It seems peculiar that he should hold a view

121) Cf. Kruger-Mommsen edition of the Digest; Lenel, Palingenesia.

adh.L.(640).
 193

diverging so radically from that of Papinian and the consti-

tutions we have referred to. He, furthermore, bases his
decision on Iulian. It would, therefore, seem that he either
gives a classical ruling which was still valid when he wrote
it down or (and this seems more likely) that we have a
special rule for a special case - say, the societas omnium
bonorum maintaining an old rule derived from the societas
ercto non cito and consortium.

(iv) D. 43. 33. 1. 2 (Iulianus 49 digestorum) :

Idem servari conveniet et si colonus rem, quam cum alio com-

munem habebat, pignoris nomine induxerit, (scilket ut pro parte
dimidia pignoris persecutio detur].

Whether this text gives the true words of lulian or not, it

is obviously a typical case of hypotheca : the colonus? pledging
Mtec et illata which happen to be joint property. The rights
of the creditor are secured in the same way as in the first
part of the text (Idem servari conveniet) : that is to say,
where we have joint creditors to whom things are given in
security ita ut utrique in solidum obligatae essent. Thus the
creditors are secured in solidum and each creditor is secured
in toto. The final sentence of our text (scilicet etc.) seems
to modify this statement and again wishes to grant security
pro parte, only. It does not seem unlikely that this final
sentence is a later addition. (How are we to know that the
pro parte security covers one half of the whole?)
From these texts it would appear that there were cases in
classical law where a joint owner could grant real security
over joint property in toto. It seems likely that this would
only be so in such cases where he had the possession of the
thing, or, at least, where he had as much control over it as
any other socius.. This would usually be the case in a societas
omnium bonorum.

7. --- Mortuum inferre. It seems abundantly clear that

where a joint owner buries the dead in common ground this
194

ground does not become res religiosa 122). If it were possible,

we would have a form of disposition by one socius whereby
a plot of ;ground becomes res extra com?nercium. No trace
seems to be left, as regards this matter, of any other rul,e
whereby it would be permissible for a socius to dispose of
ground in toto in this way. Involuntarily the question arises:
where did the socii omnium bonorum bury their dead?

E.
To conclude, it would appear that in the ancient consortiun?,
and societas ercto non cito the general rule was that thee
several socii could validly dispose of joint property in toto.
This is not an unreasonable rule, for it presupposes that the
joint property forms part of that socius' "personal belong-
ings" or forms part of a common pool. In several instances
this rule was maintained in classical times and probably
where there was a societas omnzum bonorum. At the same
time the rule arose that dispositions could be valid pro parte
only, and this is the general rule of the law of Justinian.
Furthermore, condominium, at least as we know it in the
cases of societas ercto non cito, consortium and societas
omnium bonorum, does not seem to be an "absolute" right
in the usual sense of the term. It is not so much a form of
doniniuml over things pro parte indivisa. For the Romans,
according to whose views dominiurn should not be viewed
abstractly and divorced from the res itself, the condominium
was apparently, in the same way, a right of dominium over
a res whereof the party having that ri,ght had some form of
control (the res might form part of his "personal belongings"
or be at his disposal in a common pool). However, the socii
had some claim, also, on that thing. Accordingly the con-

; 11,7.41; Bonfante, Il regime

122 ) Cf. D . 10 . 3 . 6. 6.D;. 17 . 2. 39D.
positivo etc. at p. 465 sq.; Eisele, op. cit. at p. 47. Also Berger, op. cit.
p. 117 sqq. For a critical examination of the texts, Albertario, Appuw;I
sul condominiodi sepolcro, Studi di dir. rom. II (1941) p. 39 sqq. who
rejects as a Justinian creation the rule of: in commune sepulcrum etiam
invitis ceteris licet inferre.
 195

dominium (at least, in the cases mentioned above) may be

conveniently seen as a form of "personal" dominium over
things whereof the one socius had control; but as a result
of his acts in law regarding that res he might have a
p'raestatio personalis accruing to himself, or such a praestatio
may be owed to the other co-owners.