Societas quod sortem u Rimskom i savremenom uporednom pravu

Abstract

Ovaj članak prati sudbinu ortakluka sa suvlasničkim režimom nad ortačkom imovinom (Societas quoad sortem) od rimskog do savremenog prava. Ovaj tip ortakluka je u rimskom pravu bio verovatno najčešći ili bar jednako čest kao i slučaj kada ortaci unose imovinu u ortakluk samo na upotrebu (Societas quod usum). U modernom zakonodavstvu evropskokontinentalnog kruga s izuzetkom Nemačke, Societas quoad sortem se više ne pojavljuje. Umesto njega zakonodavstva predviđaju režim posebne imovine ortakluka koja je odvojena od imovine ortaka i kojom ortak ne može samostalno raspolagati. U engleskom i američkom pravu, međutim, Societas quoad sortem ravnopravan je s ostalim oblicima imovinskog režima nad imovinom koja služi svrsi ortakluka. Usprkos tendencijama u zakonodavstvu, Societas quoad sortem nastaviće svoj život u stvarnosti u okviru slobode ugovaranja.

Two kinds of regimes have existed in Roman Law in the sphere of partnership property: the first one according to which the partner joined his property into the partnership. only to be used (societies quod usum), and the second one in which partners have been at the same time co-owners of the property involved in partnership (Societas quod sortem). It is not possible today to be sure as to which type prevailed in the Roman Law, but one thing is for certain: co-ownership has always existed in a partnership of all the property taken together (Societas omnium bononim). Such co-ownership took place independently of existence of a special act, otherwise necessary to acquire ownership (the so-called transitus legalis). In other kinds of partnership both regimes of the partnership property did exist. The type of partnership property called Societas quod sortem presupposes a stricter cohesion between the partners, as compared to the Societas quod usum type of partnership property. This latter type, however, according to the author of the present article, creates more complicated relations between the partners and rather frequently results to mixing of partnership with the simple co-ownership. In contemporary law a new type of partnership is created that is characterized by a particular partnership property, which differs from the property of individual partners, who are able to dispose of it autonomously. That means that the Societas quod sortem type is today mostly eliminated from the legislative solutions of the countries of the European continent. The only exception is found in German law that still retains a specific type of the co-ownership partnership, known as Bruchteilgemeinschaft. The Societas quod sortem type, however, is rather a common practice in the English and the American law, remaining on an equal footing with the two other types of ownership relations. On the other hand and in spite of the legislation, as the author points out, this co-ownership type of partnership will continue to hold its place in the real life activities within the wider scope of the principle of freedom of contracting. The problem as to possible uncertainty of the type of ownership, i.e. a simple co-ownership relationship - or a co-ownership partnership, can be resolved by applying the method of interpretation of parties' genuine intention, and/or of the inquiring of possible existence of the so-called affectio societatis, which means the application of the subjective criterion which, in spite of much criticism, has survived from the Roman Law times to the present.