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31, second paragraph

The second category, reflected in factors 4-9, . . .

that which each partner

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 Arnold and others have shown that the purchase of perpetual rent developed gradually out of renting real estate in towns, and that it fulfilled independent economic needs and not at all acted as a stopgap for the missing interest-bearing loan. This holds true even when capital available for investment later employed this institution—but not before it had come to fruition independently—as a substitute for the non-existent interest-bearing mortgage loan.  We have sufficiently demonstrated that in legal and economical terms the institution of partnership developed independently. While we have also seen that the commenda and the societas maris were indeed used as forms of investment, even for the property of wards, according to the statutes of Pisa, at that time these partnerships had already developed into their most advanced form in the Middle Ages. Therefore, it is a vast exaggeration to assume that capital invested in such a way had chosen this form of investment because there was no way for it to be invested in the form of an interest-bearing loan. There is no evidence for that; in fact, there is evidence of the contrary.  The pure interest-bearing loan did not play much of a role then, even before the canonical prohibition of usury was seriously considered beyond the forum conscientiae [the [Catholic] forum of conscience; or authority of the church regarding matters of conscience] in practical matters. Private personal credit, of which the interest-bearing loan is a part, is not a major factor in the investment of capital, even in out times, and was much less so in the past. A public system of credit did not exist in a form that would have satisfied the recurrent needs of potential capitalists. If not tied up in the purchase and rental of real estate, which was the traditional form of capitalist commerce in real property, capital available for investment in our region turned to maritime trade instead.

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 Italy as well as in other places. Almost all statutes addressed it; we need not discuss here the way in which this was done. But one cannot argue that the development of a new institution of law, or merely the further development of an existing institution, happened due to this prohibition. The prohibition led to the end of some institutions such as the dare ad proficuum maris; otherwise, it also served a restrictive, not creative, function. Even the proficuum maris, which corresponds most poorly to the institution of a partnership but seems best suitable as a paradigm of Endemann’s theory, appears to have been fully developed before the doctrine of usury was established, and it later fell victim to this doctrine once it had fully taken hold. Its demise was not due to the way in which risk was distributed but happened because of the certum lucrum. These facts show clearly that the prohibition of usury did not give rise to this form of partnership.

And the Statuta mercatorum of 1393: