Page |
Change |
31, second paragraph |
The second category, reflected in factors 4-9, . . . |
74, l. 2-3 | which the southern French statutes leaned on |
78, l. 3 |
societas terrae |
121, l. 4 |
had to be considered |
123, l. 5-11 |
following way: Whereas in the case of
the societas
maris the tractator is only invested with his
partnership contract, stipulating the distribution of profits and
the route of travel, and so forth, here the socius who represents the partnership
abroad is invested with certain powers. His partners designate him
the “procurator et certus nuntius”
[agent and authorized representative] and vouch for his contract
for the full amount. |
127, l. 5 |
what was legally significant |
129, l. 2 from the bottom |
who goes on a commercial voyage |
130, third paragraph |
The capitaneus
is the person who manages the business as a whole |
132, l. 9 from the bottom |
that which each partner |
137-39 |
According to this
view, the commenda, to
which legal doctrine referred as societas
pecunia-opera at the time,
developed its unique structure basically because it was the
means by which capital attempted to circumvent the canonical
prohibition against an interest-bearing loan. Endemann
argued that even loans that represented, from an economic
point of view, a loan of capital in return for the payment of
fixed interest were constructed in the form of a partnership.
We know of similar attempts to construct the purchase of
perpetual rent as a hidden interest-bearing loan secured by a
mortgage, but this view has been abandoned. The analyses by Yet the pure form of a loan was the least suitable for maritime trade. In the case in which a maritime venture experienced a catastrophic loss, the repayment of a loan taken out for the purpose of funding this venture had to appear highly questionable. This explains the existence of the Roman foenus nauticum and of the sea loan, which competed with the commenda in the statutes. It also explains why the investment of capital took on the form of a share of the risk in exchange for a share of the profit, the latter of which nascent commerce, in need of capital, supplied willingly. As has been mentioned earlier, this institution corresponded to views prevalent in Mediterranean trade, the oldest area of large trade, where people could not perceive of the investment of capital for the purpose of an expedition overseas in any other terms than as a participation in it—that is, as sharing its risk as well. Changes in these views reflect the fact that risk became more calculable. This development, rather than a subtle attempt to circumvent the prohibition of usury, explains why part of the risk was assumed by capitalists. It also explains why forms of partnerships that economically resembled a loan still appear to have legally been constructed as partnerships with a fixed dividend. When
the doctrine of usury—if one can agree that such
existed—appeared on the economic scene, the development of the
forms of partnership, as Lastig
has strongly argued against Endemann,
had long been concluded. The role played by the canonical
prohibition was therefore not a small one, in |
157, l. 3 |
And the Statuta mercatorum of 1393: |