Casuistry and general rules: Problem of risk bearing in roman societas

Abstract

The author discusses the question of division of losses among partners occurred without anyone's fault (periculum, damnum commune). She analyses three situations in which this problem is solved differently. The first one is concerned with socii holding goods in common as co-owners. The analysed sources are Ulpian, D. 17.2.58.pr (quadriga case) and D. 17.2.58.1. The second situation is concerned with partners contributing their property into the partnership for the purpose of use and damage occurring to the goods owned by one of the socii (sources: Ulpian, D. 17.2.52.4, Pomponius/Labeo D. 17.2.60.1 and Ulpian/Iulian D. 17.2.61). The third is the case of the so-called mixed societas in which one socius contributes with capital and the other only with his work (sources: Ulpian, D. 17.2.52.2, and D. 17.2.52.3). The author stresses that rich casuistry with different solutions and even contradictions prevails, so general principles and concepts are not very helpful. However, the rule casum sentit dominus is of great importance here and should not be underestimated.