10

4th, That the lessee being punctual in the payment of the rent, cannot be dispossessed or ousted, except in the case expressed by L. 6. tit. 8. P. 5. [L. 6. tit 8. P. 5.] 5th, That if the thing rented be sold within the term, the lessee ought to give it up; but the vendor is obliged to make good to him a share of the price proportioned to the time that remains to complete the term, unless it shall have been otherwise covenanted."

From the fourth principle it is inferred, 1st, That at the expiration. of the term, the thing must be restored to the rentor or lessor; and in case of delay or refusal12 on the part of the tenant or lessee, he shall restore double the amount,13, and make good the damages and deteriorations, L. 18. tit. 8. P. 5. [L. 18. tit. 8. P. 5.] 2d, That the tenant or lessee of an estate ought not to pay the rent or price if any calamity, war, fire, &c., should arise, which may destroy the fruits or produce, unless it should have been covenanted to the contrary, or unless this loss may be compensated from the abundance of other years, Ll. 22. and 23. tit. 8. P. 3. [Ll. 22. and 23. tit. 8. P. 3.] 3d, That if the estate produces double fruits, or gives a double return, not by reason of the industry, but by the melioration or augmentation1s of the thing, the price or rent ought to be doubled, L. 23. tit. 8. P. 5. [L. 23. tit. 8. P. 5.] 4th, That the full annual salary or stipend of schoolmasters must be paid, although they die before the completion of the year, because the instruction was not wanting from their fault. But the heirs of an advocate who should die before the completion of the suit, and those of a mechanic or tradesman who undertook to perform any work, cannot recover the entire wages or price, unless they provide an equally competent advocate or [204] workman to finish what was begun, L. 9. tit. 8. P. 5. [L. 9. tit. 8. P. 5.] 5th, That the person letting any thing16 is responsible for the damages which may accrue to the hirer by reason of its inutility or defect, except in the case provided by L. 14. tit. 8. P. 5. [L. 14. tit. 8. P. 5.] 6th, That if the lessors or landlords, or others, by reason of any right that they may possess over the thing rented, of which

owner, referring to L. 5. tit. 8. P. 5. Quære, if beasts belonging to the plough, and things necessary to tilling and cultivating the ground of lessee, can be distrained?

10 Until, says Palacios, the term be concluded; and that it is to be observed, that L. 6. tit. 8. P. 5. cited, does not speak of lessees or tenants of estates (heredades), but of tenants or lessces of houses.

Or the lease should have been granted for the life of either lessee or lessor perpetually. 12 L. 18. tit. 8. P. 5. says, until sentence given against him (lessee).

13 Palacios says, the restitution or payment of double the amount, in such case is not practised.

14 Either former or subsequent. See L. 23. tit. 8. P. 5., cited: provided, adds Palacios, according to the law, 22, ibid., the event by which the produce is destroyed should not be one of those accidents often accustomed to happen; and he refers also to Greg. Lop. Gl. 3. on the same law; or unless it should be the custom of the place for this loss to belong or attach to the lessee.

15 That is, accidental See also Greg. Lop. Gl. 6. on L. 23. tit. 8. P. 5., cited. 16 Such as easks or vessels for holding wine, oil, &c.

17 With respect to bad grass in a pasture or meadow, of which the lessor was ignorant. See, L. 14. tit. 8. P. 5. cited.

the lessors or landlords were cognisant, should impede or obstruct the lessees or tenants in the use of it, they ought to pay to the latter the damages and prejudices occasioned by such obstruction,18 L. 21. tit. 8. P. 5. [L. 21. tit. S. P. 5.] 7th, That the herdsman, or keeper of cattle, shall satisfy the damage done by the animals, which proceeds from his fault, L. 15. tit. 8. P. 5. [L. 15. tit. 8. P. 5.] 8th, That the master workman who shall have undertaken any work by the job or lump, is obliged to do it over again, or to return the price with the damage, if it should tumble down while it is building, or if after it is finished, in the opinion of honest men of his calling, it should be judged faulty and dangerous through his fault, L. 16. tit. 8. P. 5. [L. 16. tit. 8. P. 5.] But if the work should be undertaken under the agreement of paying the price after it is finished, the payment cannot be delayed under the pretext of its not being considered good, because the inspection of skilful persons will be sufficient to destroy this excuse. And if the agreement were to pay on the work being done to the satisfaction of him who ordered it to be done, and that till then it should be at the risk of the workmen, if this approbation should be deferred through the fault of the former, from the period of this delay, all deterioration ought to be at his risk, provided it does not arise from the faultiness or defect of the work, L. 17. tit. S. P. 5. [L. 17. tit. 8. P. 5.]

Hence it follows, 10th, That the freighter of a ship must pay the value of the thing that shall be laden in it, with all prejudices to the owner of it, if it was endangered or broken by the fault of the former,19 L. 13. tit. S. P. 5. [L. 13. tit. 8. P. 5.] 11th, That a carrier of goods is liable to the same penalty, if they be lost through his fault,20 L. S. tit. 8. P. 5. [L. 8 tit. 8. P. 5.] 12th, That every error of an artist or professor, from which loss or deterioration may arise to the thing which he took under his charge, induces the obligation, on his part, of satisfying or paying the value of it,21 L. 10. tit. s. P. 5. [L. 10. tit. 8. P. 5.] 13th, That if the lessor or lessee should die within the term, the reciprocal obligations pass, or are transferred to [ 205 ] the heirs of both, except that the thing rented were the usufruct of an estate; because being personal, the lease or term will expire with the death of the lessee, Ll. 2. and 3. tit. S. P. 5. [Ll. 2. and 3. tit. 8. P. 5.] 14th, That the owner of a warehouse is not answerable for the things placed there by the tenant or lessee;23 but he is not by this absolved from the obligation of paying the damages occasioned by his fault or fraud, L. 25. tit. S. P. 5. [L. 25. tit. 8. P.

22

18 See the amplifications and limitations to this contained in L. 21. tit 8. P. 5. cited. 19 See L. 13. tit. 8. P. 5. cited.

20 See also L. 8. tit. 8. P. 5. cited.

21 This extends to physicians, surgeons, farriers, &c. See L. 10. tit. 8. P. 5. cited. 22 Palacios says, that this is not understood with respect to particular successors, nor to those of an entail. And for a clearer comprehension of the difference, he refers to Gom. var. res. Lib. 2. cap. 3. to Murillo cur. jus. can. this title. Ferraris prompta Biblioth. verb. Locatio.; Febrero reformado, p. 1. c. 10. § 1. tom. 2.

23 Unless he undertook their charge or custody. See L. 25. tit. 8. P. 5. cited.

5.] 15th, That innkeepers are responsible for the property of their guests, because they ought to exercise hospitality with good faith, and return or justify the confidence placed in them, Ll. 26. and 27. tit. 8. P. 5. [Ll. 26. and 27. tit. 8. P. 5.] 16th, That as the lessee or tenant is obliged to pay the damages which the thing shall sustain while in his possession, in the same way the lessor or landlord ought to satisfy the lessee or tenant for the value of the improvements, which, by his industry, the property rented hath undergone,25 L. 24. tit. 8. P. 5. [L. 24. tit. 8. P. 5.]

24 Also owners, &c., of vessels; and this responsibility extends to loss by negligence, theft, &c. See L. 26. tit. 8. P. 5. cited.

25 Palacios says, it must be observed by way of conclusion to this title, that by a royal order of 21st June, 1768, it is forbidden to tenants or lessees to underlet the lands rented to them, which order it is necessary to bear in mind, because Gomez, 2 var. res. cap. 3. n. 11., and some others allege, that the tenant or lessee may under-let that which was rented to him. The royal order, however, referred to by the Learned Professor, is not found in the Chronological Index of Pragmaticas, &c., to the Nov. Rec.

TITLE XV.

OF PARTNERSHIP OR SOCIETY.

[206] CAP. 1. THE third onerous contract is that of partnership, which is a union of two or more men, formed with the intention of making gain from their joint stock, associating themselves with one another, L. 1. tit. 10. P. 5. [L. 1. tit. 10. P. 5.]

There is a partnership which is called universal or general, by which all the property of the partners present and future is joined together. The other is particular, as regards certain specific things or objects. All partnership must have for its object an honest and just purpose, and which must not be opposed to good manners or customs, of which examples are given in Ll. 2. and 9. tit. 10. P. 5. [Ll. 2. and 9. tit. 10. P. 5.]

§ 1. Hence proceed the following axioms: 1st, That partnership is a contract which derives all its force from the consent of the partners. 2d, That all profits and losses arising from the things which should be brought into the partnership be common. 3d, That it proceed from good faith.

From the first axiom it follows: 1st, That partnership may be formed, tacitly or expressly, by mere parol agreement, by instrument or deed, by mensagero, &c., L. 7. tit. 10. P. 5. [L. 7. tit. 10. P. 5.] 2d, That all persons may enter into it, with exception of the madmani and minor under fourteen years; but the minor under twenty-five years has always the right of restitution in integrum against the damages or fraud which he may suffer, L. 1. tit. 10. p. 5. [L. 1. tit. 10. P. 5.] 3d, That this contract can only be made for a certain time or for the life of the partners, but never for that of their heirs, unless it be a partnership of rent regarding things belonging to the crown or any corporation, L. 1. tit. 10. p. 5. [L. 1. tit 10. P. 5.] This does not prevent the heirs from being responsible by reason of the passive actions which their ancestors and members of the partnership transmitted to them, L. 17. tit. 10. P. 5. [L. 17. tit. 10. P. 5.] 4th, That from the day in which the partnership was formed, there is no necessity for a formal delivery of the things, in order to their being considered common to the partners in their use and right of them, except actions of seignory or dominion,2 and against debtors, for which, in

1 Palacios observes, that every person who cannot consent, by what reason socver it may be, is unable to make this, or any other contract.

2 Palacios says, this means, that if any of the partners should have a seignory or jurisdiction (manorial jurisdiction), the other partners cannot exercise this jurisdiction, unless special power should have been given to them for the purpose. Also, if one partner should have any debts due to him (individually is meant), the other partners cannot demmand or sue for those debts, without a like power or authority.

order to their being rendered common, an express power or authority is required from the lord or proprietor, or the creditor, L. 6. [ 207 ] tit. 10. p. 5. [L. 6. tit. 10. P. 5.]

From the second axiom it is inferred, 1st, That the distribution or partition of losses and gains may depend upon the will of the partners, provided it be proportioned to the capital or labor of the partners, L. 4. tit. 10. P. 5. [L. 4. tit. 10. P. 5.] 2d, That the partnership called leonine is not valid, by which one partner is deprived of all, gain, and charged with all loss,3 L. 4. tit 10. P. 5. [L. 4. tit. 10. P. 5.] 3d, That if the contracting parties do not determine the gains or losses, they shall be equal; and if the gains are determined, and not the losses, the latter shall be proportioned to the former, and vice versâ, L. 3. tit. 10. P. 5. [L. 3. tit. 10. P. 5.] That the injuries arising from the fault of any particular partner are chargeable entirely to him, L. 7. tit. 10. P. 5. [L. 7. tit. 10. P. 5.] 5th, That if the determination of these gains or losses be left to the decision of a third person, provided such decision be not conformable to the said rules, it ought to be reformed by experienced persons, L. 5. tit. 10. P. 5. [L. 5. tit. 10. P. 5.] 6th, That in particular or limited partnership, as regards gain or loss, only the things specified enter into communion, L. 7. tit. 10. P. 5. [L. 7. tit. 10. P. 5.]

To the third axiom appertains, 1st, That one partner cannot exact more care from the other than what he bestows on his own property or affairs, L. 7. tit. 10. P. 5.o [L. 7. tit. 10. P. 5.] 2d, That this good faith and care ought to accompany all the affairs of the co-partnership, so that the prejudice or loss caused in one firm or branch of commerce by the fault of one of the partners cannot be compensated or set off by the gain which he should make for them in another, L.

3 Palacios here observes, that the partnership in which it is agreed, that one partner shall bear the whole loss, may be valid; and that this is laid down in L. 4. tit. 10. P. 5. which says, ó se fazen pleyto que perdiesen en la compania en aquellas cosas que usan, que non oviese parte en la perdida; tales pleytos como estos valen é deben ser guardados. Such, he adds, would be the case, where one partner should contribute a thousand dollars capital, and the other partner his labor; with the agreement, that if they lost, the capital so contributed should be lost by the former. Quare, however, if the loss should extend beyond the amount of the thousand dollars contributed by the one partner, would not each partner be liable to his moiety or proportion of such excess or loss? The learned Professor con cludes by stating, that a partnership is therefore termed leonine, when it has been agreed that one partner may have all the gain, and bear no share in the loss, or that all the loss should be his and he should be entitled to no part of the gain, and that this is not valid. It may be observed, that the epithet leonine, is taken from the division made by the lion in the fable.

Proportionably, it is presumed, to the goods, &c., brought into the stock. This ob. servation, it is found, is confirmed by Palacios, who says that what is above stated, is implied or understood in the text.

But a partner was obliged to observe only the same ordinary care and diligence in the affairs of the partnership which he observed in keeping his own private property, and proof of this being done, would absolve him from the entire or particular loss. Vide L. 7. tit. 10. P. 5., quoted in the text.

• Vide note 5, ante.

7 This is brought more within the meaning of the law 13, tit. 10. P, 5. cited in the text, than given as the literal translation of the text. See this law, and Greg. Lop. Gl. 4. and 5, thereon.