Wealth in the Roman Empire depended in the first place on the commercial exploitation of land. The state in turn depended on this wealth through taxation. Contrary to the later Empire, the Roman Republic and early Empire contracted out the taxation of land (like several other public activities) to financial enterprises, the societates publicanorum. Tax farmers had to form a financial aggregate in order to comply with the requirements to form a tax farming company. These basically implied that they had to secure, somehow, the tax revenues of a province for five years, an enormous sum requiring numerous investors and good management. The publicani were profit oriented. The temptation to squeeze the tax payers was great, all the more since the provinces were considered conquered lands. Thus, the tax farming companies must have had considerable financial and economic weight, not only because of the amount of capital needed but also to maintain the oppression of the tax payers that went hand in hand with their operations. In addition to this, they acted as bankers. How did the legal system of Roman law regulate these financial activities? How, in particular, could participation in such an enterprise function as an investment? Was it a negotiable investment as has been suggested? To answer these questions, we need to enter into the fine points of the law on partnerships.
1 Adaptation of the Law to New Circumstances
First a note about how the Roman legal system could structure and steer economic life. Was it merely a discursive and normative framework of which the rules could only be enforced if the parties in a conflict freely accepted the judgment of the court or arbiter, whether or not under social pressure?1 Roman law certainly was a discursive and normative framework, but to determine human actions it also functioned, within social and commercial interactions, with the sanction of a condemnation before a public court. Law in antiquity as such was almost always the outcome of long accepted practices. In Rome legal rules existed that changed (or supported changes in) the institutional framework that shaped economic developments but these were usually modifications of or additions to the praetorian edict, or a new interpretation of existing law devised by legal scholars to adapt it to new economic developments.2 Statute law was rarely used for this. (A notable exception was the lex Aquilia on wrongful damage.) Statutes were more often used to enforce a social convention no longer followed but still considered important, particularly for groups in society that fulfilled a reference role.3 Sumptuary laws or Augustus’ marriage laws, for example, tried to steer but their purport was to make the senatorial class in particular return to the ways of old and behave as they should.
2 The Societas as Economic Cooperation and Enterprise
An example of the way law evolved continuously out of older forms, adapting to new economic demands, is a contract very closely connected with commerce and the economic aspects of Roman life: societas. It was most likely developed out of the societas ercto non cito (the community of partners in an undivided inheritance) and accommodated to the commercial demands of the 2nd century BCE. Societas was a consensual contract that allowed for the inclusion of economic arrangements. An example is the division of profit and loss amongst members of a societas. In the 1st century BCE Q. Mucius Scaevola held that this could only be for fixed parts irrespectively of each partner’s investment (as was the case with the societas ercto non cito), whereas Servius Sulpicius allowed for a differentiation, one partner taking more profit and less loss, depending on the value of his contribution, for example travelling for the partnership.4 Such a proportionality according to each partner’s investment was of course more in line with the contemporaneous commercial views and Servius’ view won the day. The authorities, i.e., the praetors, allowed for this. Henceforth all kinds of arrangements on this division were allowed as long as the societas leonina was avoided, an arrangement whereby a partner only shared in the losses made by the societas, not in the gains.5 The societas was a very flexible contract and, being designed for commercial enterprises, was also used for investments with inventive applications as we see for the early Principate. Thus, for instance, Ulpianus commented on a societas contract that combined labour and investment arrangements, where “the value of his partnership is the disguise of his work and art”.6 Slaves could and did participate in partnerships and invest their peculium in an enterprise (e.g. in shipping companies, Dig. 14.1.1.4).7 Due to the adjecticial actio de peculio their owners were shielded against unlimited liability: their liability was limited to the value of the peculium. A slave could enter a partnership without previous approval and could not leave it on the mere wish of his master (Dig. 17.2.18), presumably to shield the societas for surprises. We may assume that such joining would be within the sphere of the slave’s work. Was it possible that such a slave, participating in a partnership and continuing to do so, be sold and thus make his new owner indirectly participant in the partnership? If this had been accepted, we would have seen the birth of the semi-anonymous company with shares consisting of living persons, viz. slaves. But that was not the case. Sale of the slave dissolved the existing partnership and a new partnership was assumed to arise with the buyer as partner.8 This implied that all special clauses of the previous partnership had similarly dissolved and that the new partnership followed the standard rules, which may not have been to the liking of the other partners.9 Moreover, the buyer of the slave assumed liability for actions deriving from of the previous partnership (as his seller had), while in addition he became liable based on the new partnership. On top of this common property, if present, would have to be divided.
3 The Other Side of a Societas: An Aggregate of Capital
Apart from the societas omnium bonorum, where all present and future acquisitions of the partners became common property, a societas would only have common property if and in so far as that was agreed upon in the partnership agreement. We may think of the accumulation of capital for a single trip to Delos to purchase slaves and sell these later on, or to contract the levying of tax (tribute or customs).10 A partner could sell his share in the common property if this was not excluded by contract (Dig. 17.2.16.1). Common property of a societas would be owned by all socii and they would form a co-property, a communio.11 What could such common property be? Leaving aside the societates omnium bonorum and having the economically more usual societas unius rei in mind (i.e., focused on a single commercial enterprise, a negotiatio), apart from slave trading partnerships which put all their capital into merchandise,12 it would usually be working capital, like a ship, a herd, slaves who had learned a profession, and of course money. Money could be used to trade, for instance to buy and sell commodities, as in Dig. 14.3.3 where a slave is authorised to deal in oil and borrow money. In Dig. 14.1.1.15–14.1.3, partners exploit a ship, evidently using the contributed capital to trade. And of course, capital was required for contracting the levy of taxes. Apart from the payment of revenues, periodically or after the conclusion of a contract or project, shares would be paid out at the dissolution of the partnership. The bona would comprise the assets plus gains and losses and the final accounts would show whether the partners had made a profit or not on their investment. Partners who had only contributed labour, would know whether their efforts were rewarded.
4 Transfer of a Share in the Capital of the societas
But a partner did not have to wait for that. He could, in principle, sell his share in the res communes at all times. As co-owner he could alienate his share as pars pro indiviso, give it in usufruct, or pledge it to boost his credit.13 Of course as long as the communio last it was an ideal share, a claim which would materialise only when the societas ended. But buying or receiving a part in the common property did not mean that one became a partner; for that an additional agreement was required.14 Socii could make various agreements that constrained the principle of freedom to alienate partes. They could agree that the sale of shares or the division of common property before a certain moment was not possible unless there was a good reason (Dig. 17.2.14 and 16.1; which implies that otherwise dividing or selling was possible). Or the partners could agree that one could sell but that the buyer could not claim division before the moment that the seller would have had that right (Dig. 17.2.16.1; an exception against such a buyer would be granted).15 Such restrictions are understandable when it concerns working capital (see above). They would prevent the co-property to be dissolved with fatal consequences for an ongoing enterprise. Fleckner amply mentions this possibility.16 He considers it dangerous since buyers would not be bound by the partnership contract and creditors might collect their claims while the buyers (being non-socii) were not liable for the debts of the partnership. I cannot agree with this. A partner who sells his part in the communio remains a partner and remains liable. His financial position is as good or bad as before since he exchanged his part for money. It might even be better since he now disposes of cash.17 It is clear that if a partner sold his part or a fraction of it, he could not remain in the co-property for his former share,18 but he nonetheless remained in the partnership.19 A buyer might be liable for his share in the co-property, but for reasons beyond the partnership.20 Besides, as Fleckner himself says, alienation or division during the time of the contract could be excluded.
5 A Dualistic Economic Institution and Two Kinds of Participants
Yet selling, if not to another socius as in the Lex Vispasca,21 meant that non-socii got a stake in the common property, but not in the enterprise as such. From that moment on the societas had to reckon with two kinds of people who participated in the common property: socii and non-socii. Everything brought into it was subject to the actio communi dividundo, which in its division of the communio included all obligations incurred during the partnership.22 A partner could claim this with the actio pro socio, but this action was directed at the partnership as such and it would automatically imply the dissolution of the partnership and, inherently, the division of the communio. With the actio communi dividundo any co-owner could claim division of the common property, provided of course this had not been excluded in the societas agreement. The communi dividundo would as said before consider next to property all claims and debts.23 Both actions concurred, but a partner could still raise the pro socio after the communi dividundo.24 One may ask: what did the actio pro socio then still serve? Well, for example, to sue a partner for deceit, bad faith, damages, the appointment of a manager, or the transfer of a claim. But regarding the final settlement of the enterprise both actions led to the same result. In that respect there was no difference between a socius and a participant in the communio.
Consequently, since portions were expressed in fractions, purchasers of a pars pro indiviso would enjoy also eventual increases. A share in the undivided capital is the same as what a partner in the end receives. Hence too the prohibition for the buyer to claim division prematurely. In the case of a public contract, there would be no fear for a premature division since the societas could not be dissolved during the contractual period.
In short, next to the socii there could be people who were involved in a societas, not as partners but as co-owners of the working capital and, in the end, of the resulting capital with gains and losses. They could buy from a partner a share for its value or, depending on the prospects of the enterprise, at a discount or at a higher price. In that way such a share could be speculative. Could it also be the other way around, that somebody added to the capital without becoming a partner? No, that would have been a loan to the partnership.25 Another question: how would a partner transfer his portion? The Digest texts simply assume it is possible, but the anonymous author of a fifth-century legal treatise states that specific methods should be applied: the mancipatio for res mancipi, in iure cessio for other things.26 However, there is no reason why this would be the case, certainly for the Republic and first two centuries of the Principate. The in iure cessio would certainly not suffice in all cases. Meissel is of this opinion, both for the societas omnium bonorum as for other kinds of societas.27
6 A Similar Dual Layer with Tax Farming Companies
Does this dual structure also apply to the partnerships of tax farmers?28 Such a partnership was concluded when the tax collection of a province was for offer, usually for the period of five years. A redemptor (or manceps) would make an offer for a group of partners. These needed capital since there would always be a time lag between the payments they had to make to the aerarium and the collection of taxes: there would be delays in tax paying, whether involuntary or agreed upon, and not all taxes could be collected in full (the arrears, reliqua). Deals with tax payers to pay later or elsewhere were possible which meant that the societas needed capital to bridge this delay.29 It implies that the tax farming societas had a net of paying stations over the provinces with some kind of accounting which allowed the consolidation of debts and payments. As we know from Cicero, private persons used this for money transfers and deposits.30 It also needed personnel, often slaves, to do the work (the familia publicanorum).31 Thus these societates needed large amounts of capital, up to the amount of five years of taxes of their province.32 On top of this they needed securities, whether consisting of people who offered real estate or personal securities, viz. that they could comply with the contract over five years. The Roman state required securities already when the offer was made, i.e. before the contract was concluded. Tax-farming companies evidently succeeded in this, but they certainly did not get these securities for free. We do not know whether socii could bring in money themselves for five years but it is more than likely that they needed capital from third parties, and their sureties in turn will also have wanted certainty on this, lest they would later be addressed to pay up.
From several texts it appears there were socii and there were people, not socii, who held partes. The latter were called participes (Anon., In or. Verr. ad 1.55.143) or adfines (Liv. 43.16.2)/ These partes are assumed to have been transferable. In the Digest the word pars is also used for a share in co-ownership.33 It may therefore refer to a share in common property.
As to the partes, Cicero relates that Vatinius forced Caesar and the publicani to give him partes. Vatinius did not pay for the partes he took, but he reimbursed the publicani by lowering the contract sum, thus, in the end, acquired his partes at the cost of the state (Cic. Vatin. 12.29).34 Rabirius Postumus gave his friends advantages like partes, the opportunity to enrich themselves, and to increase their credit (Cic. Rab. Post. 2.4).35 But that does not necessarily mean they did not have to invest. Postumus may have given them a chance to make a profit. Cicero calls the partes acquired by Vatinius carissimae, very valuable. That might refer to the use they had for Vatinius, but in the context of Cicero’s text it means rather that their value could go up and down, in this case apparently up, their value was high. Adfinis means literally ‘bordering’, ‘by marriage connected’.36 In this context it indicates that a person is involved in the entire business, but is not a socius. That would fit somebody who participates in the common property without being a socius.
A pars cannot have been a loan to the societas. It was not impossible to transfer a loan (a mandate to claim the loan combined with a procuratio in rem suam would do) but cumbersome. A loan might be valuable if repayment was certain. But Cicero’s mention of carissimae suggests a value, more than the original investment, and that a loan as such could not be.
Fleckner suggests for the partes that they concerned ‘Unterbeteiligungen’, whatever these may have been.37 This may explain why the partes were valuable. But what should we understand by ‘Unterbeteiligungen’?38 Neither does it explain the Vatinius text for how can we connect this with ‘Unterbeteiligungen’? Meissel merely suggests that pars refers to a ‘Kapitalbeteiligung’ without the position of a socius. But he does not specify the legal condition of this.39
If we apply the information of Dig. 17.2.14 and 16.1 to the above cases, the explanation for Vatinius’ case could be that in the contract for a societas publicanorum the partners granted him a portion of the capital in exchange for his labour, which consisted here, in his office as quaestor or praetor, in lowering the sum for which the contract was granted. There is no need to presume a transfer of partes. The same may have been the case with Postumus. As for transfer, if one wants to keep to this, it is possible that socii enrolled for large portions in the required common capital, forming a communio, and then split their portions into smaller parts, partes,40 selling and transferring these to other people who consequently were called participes (Anon., In or. Verr. ad 1.55.143: qui certam habet partem), thus spreading the investment. The participes shared in the end result for a defined share, as would the socii who held a share, both in the common capital and in the revenues of the contract. The partes may have been advantageous if the prospects of the enterprise were good: as with modern shares, the final payout might be higher than the price paid. Such shares in the common capital could safely be alienated as part of the property of the holder. There would be no danger that somebody might raise the actio communi dividundo because the public contract fixed the duration at five years (Dig. 17.2.52.9pr).41 They could be large or small, and would provide for many people an opportunity to buy. It would also explain why problems with tax farmers led to a fall in credit as reported in Cic. Manil. 7.19:42 a pars would in such a case fall in value and by that the credit of its owner. And if one wants to read eripuerisne in Cic. Vat. 12.29 as referring to a transfer, it explains why Caesar and the tax farmers could issue partes to Vatinius. If it were merely participations in the common capital, then there was no need to adapt the partnership contract, they simply transferred a pars or a portions of a pars. Similarly, Postumus may have cut slices for his friends from his own large portion when he set up a societas, enabling them to make good profit after five years.
Quite a number of scholars have interpreted these partes as transferable shares in the societas.43 Almost inevitably this is connected with the assumption of a stock market.44 Fleckner has taken the trouble to re-examine the literary and legal sources. He concludes that both assumptions are not borne out by the texts.45 As he writes, once the idea of bearer shares in a societas is accepted, the conclusion that there must have been a trading market follows almost by necessity. But were these bearer sharers? There is no need to repeat Fleckner’s extensive treatment of the literary and legal texts here. But should he have had to do this? Is it not rather so that when authors suggest something like transferable shares or partnerships in a societas publicanorum, it is their academic obligation to check first whether such a thing fits into the existing law, sparing by that their fellow researchers the trouble of disproving what has not been proved? If they had done this, it would have appeared that it did not fit at all. We saw that the participating slave, who might have come closest to a transferable share, be it a share subject to death and so dissolving the societas, was rejected. That text dates from the end of the 2nd century CE, about two-and-a-half centuries after Cicero, which makes it very unlikely that a more liberal view had reigned in the late Republic. Moreover, the partners in a societas publicanorum could not leave it during the period of five years that the tax contract lasted. If they died, the partnership continued and their heirs were by law liable as if they were partners.46 So what would there have been regarding the societas as economic actor to transfer? There were no negotiable instruments like the modern shares which are negotiable because they are bearer shares, nor were there shares in name. It is not that the Romans could not adapt the law to their needs. I have argued elsewhere that chirographs became negotiable instruments and easily transferable and consequently do not exclude a trade in such instruments. But that was facilitated because chirographs were contained in transferable objects (tablets, papyrus) and contained only acknowledgments of debt, not property shares or shares in a company. Such an extended use moreover—facilitating banking and the transfer of large sums of money—came about only during the second century CE, long after the high days of the societates publicanorum.47 Hence already a perusal of the private law on partnership should have warned for such speculations if not prohibited these. Public law on the societates publicanorum only changed the minimum that was necessary to safeguard public interests. Transfer of shares was not part of that. In that perspective the idea of bearer shares and a stock-market should not have arisen.
Fleckner deals with the legal texts, showing they do not indicate any transferability of shares. However, he does not discuss the underlying communio bonorum of the societas and the ideal shares which could be alienated.48 He discusses Dig. 17.2.63.8 to suggest the passive participation of the heir in a societas publicanorum is a case of his being a particeps or of ‘Unterbeteiligung’.49 I would rather underline that the text says that unlike in a common societas (where the death of the de cuius ends the partnership ipso iure) in the case of a societas vectigalium the heir, although he is not a partner, is qua heir entitled to the further gains and liable to the further losses. This is the effect of the societas as part of a redemptura. It implies the heir is and remains co-owner of the common capital and as such participates in gains and losses until its closing. Considering not the societas but the underlying communio bonorum would make this text fit the analysis of the dual structure as set out above. Participating with capital in a new societas was certainly possible, being granted a portion in it without having to pay for it (as was likely the case with Vatinius) was possible too. Societas contracts were very flexible as long as it did not become a societas leonina. Whether participes in turn alienated their proprietary portions, however, we do not know. Theoretically it was possible. It seems such divisions normally occurred when a company was established. After that, however, the fortunate holders (one evidently needed connections to get a share) kept their shares.
7 Conclusion
The mention of partes with regard to societates publicanorum has led to various hypotheses about its exact meaning. Their transferability seems certain, although the sources do not explicitly suggest that. Many authors have merely accepted the existence without entering into the legal construction and fitting it into the existing legal framework, yet here one cannot escape that necessity. What previous authors did not or did not sufficiently pay attention to is the difference between the actio pro socio and the actio communi dividundo, that is, the two structural layers in the enterprise: the level of the societas and the level of the communio. In legal jargon: the contractual and the proprietary aspects, and with it the economic importance and role of the common working capital.50 What did not help is that in the legal handbooks the first is basically treated under societas and the second particularly under inheritances. But a societas would often be a communio too. A portion in the res communes represented the economic outcome of a partnership, was separated from it since it could be claimed with the actio communi dividundo, and might imply also profit on the invested price, depending on the outcome of the enterprise. Economically it was precisely what a modern shareholder has, who usually is, in practice,51 a mere holder of capital and a co-proprietor of the enterprise while the management and investments are left to the staff. And if we look closely: what was, looking from the outside, the difference between a particeps and a socius who had invested capital but left everything to a manager? Nothing, and it is no surprise that texts mix up the actio pro socio and the actio communi dividundo. It only made a difference with active partners (who still could sue for compliance with the partnership contract). Hence there is no need to look amongst ‘Unterbeteiligten’ for transfer of interests.52
This is a hypothesis, based on the few Digest texts on partnership relevant for the present question. It is a hypothesis which at least has the great advantage of explaining the references to participations in societates publicanorum which could be obtained or transferred. It fits the sources on partes and from the point of the Roman law it is possible and probable.
For arbitration, see D. Roebuck, B. de Loynes de Fumichon, Roman Arbitration, (London 2004). The proportion of disputes in antiquity settled by arbitration is unknown.
Apart from the statutes, the written law consisted of the magistrates’ edicts. Comparison of the edicts and the commentaries on them demonstrate the enormous discrepancy between the written law and customary practice which was not written down until these commentaries but acquired after that the status of ius vetus.
See for this R.K. Merton, A.S. Rossi, ‘Contributions to the theory of reference groups’, in R.K. Merton (ed.) Social Theory and Social Structures, (New York 1968), 279–334. I would not exclude that in early times the behaviour of these groups was also considered important for the religious and political welfare of the country, just as in the Middle Ages and later on immoral behaviour was considered to call God’s wrath upon the country.
Gai 3.149, also Dig. 17.2.30; see G. Santucci, ‘The equality of contributions and the liability of partners’, in B. Sirks (ed.), Nova Ratione, (Wiesbaden 2014), 93–94, with more literature. Further, for later times, see, e.g., Dig. 17.2.6 and 29pr–2.
See M. Kaser, Das römische Privatrecht, Bd. I (München 1971), 572–576; Dig. 17.2.29.2.
Dig. 17.2.52.2; on this text see B. Sirks, ‘Ulpian Dig. 17,2,52,3: Gesellschaftsvertrag, aber auch Arbeits-, Kauf-, Verwahrungs- und Finanzierungsvertrag?’, in Th. Finkenauer, B. Sirks (eds.), Interpretationes Iuris Antiqui (Wiesbaden 2018), 323–334.
Dig. 17.2.18: apparently they did not need the consent of their owner to enter a partnership, nor was the wish of their owner that they renounce it sufficient: an act was required.
Dig. 17.2.58.3. Ulp. 31 ad (ed.), Si servus meus societatem cum Titio coierit et alienatus in eadem permanserit, potest dici alienatione servi et priorem societatem finitam et ex integro alteram inchoatam, atque ideo et mihi et emptori actionem pro socio competere, item tam adversus me quam adversus emptorem ex his causis quae ante alienationem inciderunt dandam actionem, ex reliquis adversus emptorem solum. A different view (silent continuation) by Ulpian in Dig. 17.2.58.2 where a filius familias is partner and then is emancipated. That is because the son acquires full right of action and now may be held liable also for the time before his emancipation (and we may assume, the same would be the case if his pater familias died and he became sui iuris).
One would indeed expect that it were to be rejected from the beginning with the argument that partners should not be confronted with a shareholder they might not have wished to contract with; as would be the case with an heir, even one who was already mentioned in the contract, Dig. 17.2.35 and 52.9.
See Kaser 1971, op. cit. (n. 5), 575; M.A. Fleckner, Antike Kapitalvereinigungen (Köln/Weimar/Wien 2010), 117–143 on the societas.
See Kaser 1971, op. cit. (n. 5), 575 and 575 note 30: it would be considered to form a communio if nothing else was agreed.
F.-S. Meissel, Societas (Frankfurt 2004), 270: the bought slaves were common property; 271: actions could be raised against any socius in proportion to his share.
See Kaser 1971, op. cit. (n. 5), 411, and 590–592 for the communio.
Meissel 2004, op. cit. (n. 12), 272–273, viz. a new partnership contract.
See Meissel 2004, op.cit. (n. 12), 277 ff.
Fleckner 2010, op. cit. (n. 10), 356–361. It seems that Fleckner had primarily the obligatory aspects in mind, not the proprietary aspects.
Fleckner 2010, op. cit. (n. 10), 357. His following discourse on the possibility that a partner might be able to dispose of the entire co-property and so endanger the partnership is not even hypothetical.
That makes Fleckner’s exposition of Adler’s theory as cited (2010, op. cit. (n. 10), 359–360) superfluous. For this, see below note 38.
Thus in the division of the common property liabilities out of the partnership contract would be divided according to the shares in the contract, but the assets, which were the result after all liabilities and costs had been done with, would be divided according to the property shares.
Such as if the common property included a building, he might be forced to a cautio damni infecti: Dig. 39.2.40.4 Ulp. 43 ad Sab. Si plures domini sint aedium, qui damni infecti sibi prospicere volunt, nec quisquam eis damni infecti caveat, mittendi omnes in possessionem erunt et quidem aequalibus partibus, quamvis diversas portiones dominii habuerint: et ita Pomponius scribit.
R. Riccobono (ed.), Fontes Iuris Romani Anteiustiniani I (Florentiae 1968), 104 § 4.
See Kaser 1971, op.cit. (n. 5), 590–592, part. 592 for the final account.
All that returns enters the res communis and at the end it will be divided amongst the partners (see Dig. 17.2.38.1: res ex societate communes). See further for the concurrence between both actions Meissel 2004, op.cit. (n. 12), 281 ff.
Dig. 17.2.38.1.
But it is very well possible that a partner added to the common property, for instance by his work. Could he also raise his capital share, or, once he had sold his portion, begin with a new portion? It depends on the distribution of the profit and losses, established at the beginning of the contract. If it were purely a capital partnership and the shares were in proportion to the capital brought in, the first suggestion should be possible. But the second is not, because that would require a new partnership.
Consultatio 6.10.
Meissel 2004, op.cit. (n. 12), 227–312 on specific questions regarding co-ownership of partnership property, 277 ff. in particular.
For these partnerships see now Fleckner 2010, op. cit. (n. 10), 145–215. There were more occasions where such companies were used: public construction, exploitation of public property (like mining), or maintenance of public utilities, further taxes like the inheritance tax and custom duties. I restrict myself to the allocation of provincial taxes because of their size and extension, but the exposition goes for the other taxes. Classic is E. Badian, Publicans and Sinners, Private Enterprise in the Service of the Roman Republic (Oxford/ Ithaca NY 1972). A good survey is given by U. Malmendier, ‘Roman shares’, in W. Goetzmann and G. Rouwenhorst (eds.), The Origins of Value. The Financial Innovations that Created Modern Capital Markets (Oxford 2005). 31–42, 361–365. However, she too quickly assumes that the partes in these societates were negotiable shares and that there was a trading place for these, leaning on secondary literature. See also below and note 43.
See M. Corbier, ‘Lex portorii and financial administration’, in M. Cottier e.a. (ed.), The Customs Law of Asia (Oxford 2008), 202–227, especially 212 and 222. She raises the interesting point that the assets offered as security were so to speak locked up capital for the time of the contract.
Cic. Att. 11.1.2; Fam. 5.20.9. See D.B. Hollander, Money in the Late Roman Republic (Leiden 2007), 43.
See Dig. 39.4 with references to the familia, inclusive the possibility of theft by it.
See for the redemptura and the structure of these companies Meissel 2004, op.cit. (n. 12), 206–208, with older literature.
E.g., Dig. 13.7.40.1 (pars dominii); Dig. 39.2.40.4 (pars/portio dominii); Dig. 39.2.5.1 (pars dominii); Dig. 40.12.7.3 (pars dominii); Dig. 41.1.45 (pars dominii); Dig. 41.1.63.1 (pars dominii).
Cic. Vat. 12.29: et quoniam pecunias aliorum despicis, de tuis divitiis intolerantissime gloriaris, volo uti mihi respondeas, fecerisne foedera tribunus plebis cum civitatibus, cum regibus, cum tetrarchis; erogarisne pecunias ex aerario tuis legibus; eripuerisne partis illo tempore carissimas partim a Caesare, partim a publicanis? quae cum ita sint, quaero ex te sisne ex pauperrimo dives factus illo ipso anno quo lex lata est de pecuniis repetundis acerrima, ut omnes intellegere possent a te non modo nostra acta, quos tyrannos vocas, sed etiam amicissimi tui legem esse contemptam;—‘and since you despise the money of others, you pride yourself most intolerably of your richesses, I want that you reply to me, did not you conclude as tribune of the plebs treaties with towns, with kings, with tetrarchs? did not you spend money from the Treasury by your laws? did not you rob at that time participations, at that time very expensive, partly from Caesar, partly from publicans? Since these matters are so, I ask from you, were you not made from a very poor man into a rich man in that very year when the so severe statute on money claimed back was issued, so that all could understand that you despised not only our acts which you call tyrannical, but also the statute of your most dear friend.’ Fleckner 2010, op. cit. (n. 10), 480 thinks that Vatinius did not get the shares from the publicani but from the partnership itself. How this was done he does not say (it is not interesting for the question he is dealing with). Likewise he concludes that Vatinius got his partes straight from Caesar, again without entering upon the question how this might have been done.
Cic. Rab. Post. 2.4: Hoc ille natus, quamquam patrem suum numquam viderat, tamen et natura ipsa duce, quae plurimum valet, et adsiduis domesticorum sermonibus in paternae disciplinae similitudinem deductus est. multa gessit, multa contraxit, magnas partis habuit publicorum; credidit populis; in pluribus provinciis eius versata res est; dedit se etiam regibus; huic ipsi Alexandrino grandem iam antea pecuniam credidit; nec interea locupletare amicos umquam suos destitit, mittere in negotium, dare partis, augere <re>, fide sustentare. quid multa? cum magnitudine animi, tum liberalitate vitam patris et consuetudinem expresserat. pulsus interea regno Ptolomaeus dolosis consiliis, ut dixit Sibylla, sensit Postumus, Romam venit. cui egenti et roganti hic infelix pecuniam credidit, nec tum primum; nam regnanti crediderat absens; nec temere se credere putabat, quod erat nemini dubium quin is in regnum restitueretur a senatu populoque Romano. On this text and point see Fleckner 2010, op. cit. (n. 10), 482. Hollander 2007, op.cit. (n. 30), 49–51 discusses the text but does not give an explanation for the legal nature of the partes.
P.G.W. Glare (ed.), Oxford Latin Dictionary (Oxford 1982), s.v. ‘affinis’.
Fleckner 2010, op. cit. (n. 10), 488, 494. On 482: ‘die Ermöglichung der Mitwirkung an staatslichen Aufträgen’. It remains hypothetical and unclear how this materialised.
Both Meissel 2004, op. cit. (n. 12), 263 and Fleckner 2010, op. cit. (n. 10), 359 mention also K. Adler, Zur Entwicklungslehre und Dogmatik des Gesellschaftsrechts (Berlin 1895), 7–8 who according to them said that since a partner would remain partner, notwithstanding a transfer of all of his part in the res communis, he would always remain involved in the distribution of gains (and losses) due to the partnership agreement. Both do not think this applied to the Roman partnership.
Meissel 2004, op.cit. (n. 12), 208, thinking, apparently, of a depositum irregulare, with interest established by stipulations. It is not clear how such deposita could be attractive, or be transferred.
Of course their portions could be called partes too and perhaps some sold their entire portion.
Dig. 17.2.59pr., with moderation: if the redemptura depended on the personal contribution of the deceased, his heir might not be acceptable.
See Fleckner 2010, op. cit. (n. 10), 473 note 110 with this and other texts.
Particulary on the basis of Cic. Vat., 12.29. See Fleckner 2010, op. cit. (n. 10), 450–459, 455, n. 54, gives a survey of all authors since 1835 up till 2009 who assume share companies (‘Aktiengesellschaften’) and stock markets, without, however, any evidence. On 455, n. 55 he lists those authors who are skeptical (amongst whom Meissel). The most recent author is U. Malmendier, Societas publicanorum (Köln/Weimar/Wien 2002), who makes a daring comparison with the modern stock exchanges in U. Malmendier, ‘Law and finance at the origin’, Journal of Economic Literature 47 (2009), 1076, 1089. Similarly in Malmendier 2005, op.cit. (n. 28), 32: anticipation of the modern corporation and the use of fungible shares and limited liability. Limited liability existed indeed through the actiones adiecticiae qualitatis but that was not connected to shares. See for the ringing refutation of her and other authors supporting this view Fleckner’s critique as referred to in the following note, also 474, n. 118.
Fleckner 2010, op. cit. (n. 10), 459–462 gives a survey of the authors, with again Malmendier 2002, op.cit. (n. 43), 249.
Fleckner 2010, op. cit. (n. 10), 462–485 on literary sources, 485–494 on legal sources, with 494 his conclusion; and part. 471, n. 102 on Malmendier’s errors, 485 on literary sources, 485–494 on legal sources, with 494 his conclusion; and part. 471, n. 102 on Malmendier’s errors.
See Meissel 2004, op. cit. (n. 12), 275 ff.; for the continuation see 211–215.
B. Sirks, ‘Chirographs: negotiable instruments?’, Zeitschrift der Savigny-Stiftung rom. Abt. 133 (2016), 265–285. The trade in these was apparently such that the emperor Anastasius fixated their value at the price paid, regardless of their nominal value.
Fleckner 2010, op. cit. (n. 10), 485–494.
Fleckner 2010, op. cit. (n. 10), 488.
Fleckner 2010, op. cit. (n. 10), 450 ff., notwithstanding his remarks on the communio on 356–357, focuses solely on transferability of partnership. As sole source for this his Text 16 remains (Dig. 39.4.94, at 494) but again this is not pertinent for such an interpretation.
In practice: although shareholders have, as owners of a company, the ultimate right to define the management of it, for many shareholders their investment is merely a capital investment comparable with investing in bonds, and this certainly if they have certificates.
As Fleckner 2010, op.cit. (n. 10) does, though be it with great reserves since he also acknowledges the lack of sources for this interpretation.