The History of Commercial Partnerships in the Middle Ages 0742520498, 9780742520493

Citation preview

Legacies of Social Thought Series Editor: Charles Lemert Roads from Pa.st to Future Charles Tilly

The Voice of Anna Julia Cooper: Including "A Voice from the South" and Other Imparumt Essays, Papers, and utt.ers edited by Charles Lemert and Esme Bhan Making Sense of America: Sociological Analyses and Essays Herbert J. Gans Crime and Deviance: Essays of Edwin Lemert edited by Charles Lemert and Michael Winter

The Erhics of Modernity Richard Munch Ethnamethodowgy's Program: Working Out Durkheim's Aphorism Harold Garfinkel, edited by Anne Warfield Rawls Forthcoming Visions of Social Inequality: Clan and Poverty in Urban America

William Julius Wilson

The History of Commercial Partnerships in the Middle Ages

MAX WEBER

Translated and Introduced by Lutz Kaelber

ROWMAN & LITTLEFIELD PUBLISHERS, INC. Lanham • Boulder • New York • Oxford

ROWMAN & LITTLEFIELD PUBLISHERS, INC. Published in the United States of America by Rowman & Littlefield Publishers, Inc. A Member of the Rowman & Littlefield Publishing Group 4720 Boston Way, Lanham, Maryland 20706 www.rowrnanlittlefield.com P.O. Box 317, Oxford OX2 9RU, United Kingdom Copyright © 2003 by Rowman & Littlefield Publishers, Inc.

All rights reserved. No part of this publication may be reproduced, scored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photo· copying, recording, or otherwise, wtthout the prior permission of the publisher. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Weber, Max, 1864-1920. [Zur Geschichre der Handelsgesellschafren im Miuelalter. English] T'le history of commercial partnerships in the Middle Ages/ by Max Weber; translated and inrroduced by Lutz Kaelber. p. cm. - (Legacies of social thought) Includes index. ISBN 0- 7425-2049-8 (cloth) I. Commerce-History-Medieval, 500-1500. 2. Commercial law-History-To 1500. 3. Partnership-History. 4. Law, Medie\'l!L I. Kaelber, Lua. II. Title. Ill. Series. HF395 .W4313 2003 338.7'3'0902-dcZl 2002008054

Printed in the United States of Alllt.'rica QTM

The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences-Permanence of Paper for Pnnted Library Materials, ANSI/NISO 239.48-1992.

'C:?

Contents

Series Editor's Foreword: Max Weber, a Man of Many Words

XI

Charles Lemert Acknowledgments

xvii

Introduction: Max Weber's Dissertation in the Context of His Early Career and Life

Lutz Kaelber

The History of Commercial Partnerships in the Middle Ages

49

Max Weber

51

Prefatory Remarks Roman and Current Law: Plan of the Investigation

• Soeietas and General Partnership, 53 o Roman Law of the Societas, 54 o Modem Law of the General Partnership, 55 • Putative Beginnings of Change in the Principles of Roman Law, 58 Digest of]ustinian (17.2.63.5), 58 Digest of Justinian (21.1.44.1), 58

V

53

vi

-

Contents

o Bankers, 59 °ଯ
Charter of Malaga (Section 65), 59 Negative Results for Roman Law, 60 • Plan of the Investigation: The Relationship between Economics and Law, 60 2 The Partnerships of Maritime Law • The Commenda and the Needs of Maritime Trade, 63 The Lombard Laws and Maritime Trade, 64 0 Economic Foundations of the Commenda, 6.5 0 The Character of the Commenda as a Partnership, 67 o Economic Status of the Parries in a Commenda, 67 • The Societas Maris, 68 Legal Character of the Societas Maris, 69 0 Economic Significance, 70 • Geographical Area of the Commenda, 71 Spain, 72 o Sicily and Sardinia, 72 o Trani and Ancona, 72 oAmalfi, 72 0 Pisa, 73 Venice, 73 Genoa, 74 • The Law of Property of Maritime Partnerships, 75 The Partnership Fund. 75 o Beginnings of the Development of a Separate Fund, 76 o Obligations of the Partnership, 77 o Results, 78 • The Societas Terrae and the Limited Partnership, 78 o The Societas Terrae, 78 o Beginnings of the Limited Partnership: Piacenza, 80 0 Significance of the Socieias Terrae, 82

63

3 Family Communities and Communities of Labor

85

• The Joint Economic Household of the Family, 85 o Consequences of the Economic Unit of the Family for the Law of Property: Joint Property, 86 0 Legal Foundations of the Community: Joint Household, 88 o Development of the Law of Property: Shares of the Members, 89 • Household Communitie~ Outside the Family, 91

Contents

-

vii

Associations of Artisans, 92 Common Characteristics of These Communities, 93 • Special Characteristics They Have in Common, 94 o Limitation to Male Socii, 94 o Exclusion of Real Property, 94 • Changes in the Statu; of Property, 95 • Legal Relations to Third Parties: Liability on the Basis of Kinship, 96 • Liability on the Basis of Having a Joint Household, 97 • Twofold Significance of Liability of the Community, 98 0 Liability of Joint Property, 98 0 Personal Liability of the Members, 99 • Origin and Development of Household Members' Liability, 100 • Family Communities and Communities of Labor in the Statutes, 102 o Preliminary Remarks, I 02 oSpain, 102 o Venice, 104 o Other Communal Statutes in Italy, 107 0 Liability of Dependent Members of the Community, 109 o Obligation to Distribute a Share in the Inheritance in Family Communities, 110 0 Personal and Joint Debt, I 13 Solidary Liability Outside the Family: Joint Scacio, 114 o Personal and Company Debt, 114 0 The Separate Fund of the Partnership, 115 o Parmerships in the Crafts (Production) and in Commerce' (Trade), 119 o Characteristics of General Partnerships and Contracts of Parmerships: The Firm, 121 • Documents Concerning Contracts of Partnerships, 123 0

0

4 Pisa: The Law of Partnership According to the Consritutaim Usw •The Constitutum Usu.s, 127 • Area of the Constitutum Usu.s, 128 • The Natute of Legal Principles in the Usu.s, 129 • Contents of Legal Arrangements Concerning Partnerships, 129 o The Societas Maris, 129

127

viit

-

Conrenrs

• Distinctions in the Law: Significance of the Capitaneus, 130 • The Law of Property of the Socie£as Maris, 13 l • Separate Fund, 132 u Relation to the Personal Creditors, 132 u Relation of the Socii to the Partnership Assets, 132 w Relation to the Creditors of rhe Partnership, 133 0 Extent of the Parmership Assets, 13 3 • Result: The Limited Partnership, 134 o Partnership without Separate Fund (Dare ad Portandum in Compagniam), 135 o Partnership with Fixed Dividend (Dare ad PTOficuum Maris), 136 o Excursus: Significance of the Doctrine of Usury for the Law of Partnership, 137 o The Soder.as Maris and Family Community, 139 • Putative Origin of the Societas Maris in Family Associations, 139 • Nature of the Family Community, 140 • The Continued Community of Heirs in Pisa, 142 • Vita Communis, 142 Preconditions, 142 Effects, 143 • Sacier.as Omnium Bonorum, 144 • Principle of Solidary Liability in Pisa, 145 o The Compagnia de Terra, 145 • Basic Differences between the Limited Partnership and rhe General Partner..hip, 146 • Partnership Documents, 147 • Results, 149 0 0

5 Florence • industrial Wealth in Florence, 151 • Statutory Documents: Plan of the Investigation, 15 2 o Relevance of Kin for Solidary Liability, 152 • Analogies between Families and Partnerships, 154 o Arbitration, 154 o Liability and Separation of a Person's Assets, 154 "Personal Relations of the Socius, 155 0 Son and Clerk, 155

151

Contents

-

ix

• The Family's Character as a Partnership and the Partnership's Character as a Family, 155 0 The Law of Property of Partnerships: Partnership Debt and Personal Debt, 156 • Characteristics of Partnership Debt, 156 0 Registration in the Books, 156 a Contracting in the Name of the Partnership, 15 7 • Personal Creditors Are Precluded from Attaching Partnership Assets, 159 • Documentary Sources: Ledgers of the Albeni and the Peruzzi, 160 o Joint Household, 160 0 Partnership Agreements as the Foundation of the Community, 161 o Equity and Contribution of the Sodus, 162 o Separate Assets of the Socius Outside the Partnership, 162 • Real Estate, 162 • Movable Personal Property, 163 0 Inheritance Recor~ of the Alberti in 1336, 164 • Results, 166 6 The Legal Literature: Conclusion • Juridical Literature and Its Relationship to Partnerships, 169 o Limited Partnership, 169 o General Partnership, 171 • Separate Fund, 171 • Solidary Liability: Presumption of Mandate and Institor, 172 o Actual Foundations of Solidary Liability, 173 • Legal Effects on International Development: The Partnership Firm, 175 • The Decisions of the Rota of Genoa and the Genoese Statutes of 1588-89: Conclusion of the Development, 177 • Conclusion: Possible Significance of the Results for Legal Doctrine, 180

169

Appendix: Overview of the Documents

183

Index

189

About the Author and Translator

197

SERIES EDITOR'S FOREWORD

Max Weber, a Man of Many Words

How does one write a foreword of modest length to a foundational work of Max Weber, a man of so many words, so few of them wasted? If one counts only the serious reading of educated readers, it is certain that Weber wrote more words than most will read in a lifetime. The volume of Weber's collected writings is all the more remarkable in that he lost so many years to the famous crisis of his adult life after 1897. Plus, by contemporary standards, he died young, at a mere fifty-four years of age. Hence, the writings by which Max Weber has become, after Karl Marx and Sigmund Freud, the greatest of the still-avidly read of the classical social theorists were composed in fewer than two decades--in the time berween his recovery in 1902 when he was already thirty-eight and his death in 1920. Among those now considered founders of modem social thought, only W. E. B. Du Bois and Freud (both blessed with extraordinarily long lives) may have written more than Weber. One suppc>Ees that, were a word count ever taken, Emile Durkheim would rank far behind these others. I say this because I have read a very good number of Durkheim's writings, as I have of those of Freud and Du Bois-and thus allow myself the conceit of having read most, if not all, of these others. But I would never claim to have read more than a minor portion of Weber's published works. This reticence is interesting because, like most who belong to my guild, I have read all the more prominent of Weber's writings, including those on methods, politics, religion, and economics, including the compendium of writings in Economy and Society, as well as others here and

XI

xii

-

Foreword

there. Inasmuch as few are likely to care one way or another, why should 1, on this occasion, profess an unlikely accomplishment with respect to Freud, Du Bois, and Durkheim and deny it with respect to Weber/ The answer goes beyond the number of words, to their literary kind. One tends to stand back a bit before any of Weber's works because there is something daunting about the words. Not just their number, but their fabulous density-by which I do not mean their difficulty so much as the formidable mass of learning packed into each of the imponant words. Even when the delight of reading Weber is great, that pleasure usually rushes from the desire to return to rhe most erotic of places for a reader, at least-that special, secret spot between ideas and words. For those of us who live for the love of reading, this is our G spot-the ,me hard to find yet always there tempting us. It exists somewhere between the realization that we all have ideas, but only a few have the words to make them mean something. And, although popular opinion holds just the opposite, for me the pleasure to be found between ideas and words is heightened by the German language. It has been years since I read German with stumbling fluency, yet the allure of the words lingers on. In German, words, especially nouns, are commonly composed as finely articulated compounds of ocher lesser words. Hence, in English we speak of science; in German one speaks of Wissenschaft, which in tum allows the tongue to create such wonderfully exact discriminations as that between Geisteswissenschaft and Naturwissenscha/t-between, that is, the sciences of the human spirit and the natural sciences (a distinction Weber himself made quite a lot oO. Thus, even when Weber is translated into avernacular, the language has its own irregular shape-as when, for notable example, we speak of Weber's concept spirit of capitalism, an expres&ion that bears within so many of the intellectual nuances its German author had in mind. Though the English reader may not fully sense the details, such an expression contain.~, with a simple elegance, Weber's preoccupation with ethics as the practical basis of economic action as well as his devotion to the idea of sociology as a science of the {human] spirit. Those who read to the end of that book eventually get the point when they come upon Weber's famous lament on the iron cage. There is an intricacy to many of Weber's words that very often thrills when and where one least expects it-as, for example, upon teaching Weber to beginning ,tudents. Before teaching Max Weber's Protestant Ethic and the Spirit of Capitalism, I sometimes hold up before the students my first paperback copy of the Scribner's edition of the great text. There it is with its signature green, shades of gray, and white cover of no particular distinction. Those were the days when readers bought books without the inducements of a striking cover design. The book was purchased, l believe, in 1963 on discount at the Harvard Divinity

Foreword

-

xiii

School bookstore for an astonishing $1.17. How my then-teacher, also the translator of the book, could have gained any other than honor from the hard work of translation seems now impossible to imagine. But for Talcott Parsons the honor may have been enough, for it is well known that he valued Weber's contribution to the special providence of Parsons's upbringing in the parsonage of a Congregational minister, a Calvinism only slightly less pure than that of Max Weber's mother. Both men, no doubt, understood their labors in some proper sensibility to their circumstances of origin. What most impresses my students by this little show-and-tell ceremony is that the copy I own is so badly worn. Its binding has come undone, leaving entire signatures, as well as individual pages, to fall where they may. Hence the rubber band that holds it all in place. I also own a Christian Bible that was given to me about the same time. le, too, was in bad repair, but I have had it rebound. The edition of Weber's great book I leave in disarray so as to enhance the pedagogical performance. I tell the students to whom the book has been assigned that I have read the book at least once, sometimes more, every year since---on the order of fifty or so readings since the likely date of purchase. They forgive both my foolish boast and the exaggeration evident to them in the next class when they see me teaching from a more recent edition, fresh with an introduction by Anthony Giddens and a picture of Max himself. Whatever they think of my show, what impresses me is that students of all degrees of scholarly enthusiasm are typically fascinated by Weber's book. Some of them actually read it. Others at least enjoy my lectures, if that is what they are, on selected features of the book's stunningly original, still compelling, argument. The Protestant Ethic and the Spirit of Capitalism is still read today, even by students very early in their studies, precisely because it tells a trustworthy story of where we (so to speak) came from-and tells its story in terms anyone willing to work at it can understand without sacrifice to the scholarly details. The very idea that, in Weber's own phrase, the immense cosmos of capitalism came from beliefs, not just hard work, is a wonderfully comforting idea-especially now in a somewhat broken capitalist world where belief is at least a solace when hard work is not enough, as it seldom is. Still, a reader of the present book would not embarrass himself were he to ask what, if anything, might be the connection between Weber's best-known book and the one in hand, which is surely one of his least well known? An answer is ready at hand. Lutz Kaelber's remarkable translation of and introduction to Weber's Him.nJ of Commercial Partnerships in the Middle Ages may well be the mis.sing link to a more honest answer to the question for which so many wrongly consider The Protestant Ethic sufficient. Whatever our differences otherwise, we who live in the still-immense cosmos of the capitalist world system live in a very different sort of capitalism than the one Weber wrote about

xiv

Foreword

just about a century ago. If the spirit of capitalism is still in evidence-as it isits practical workings in daily life are very much more hemmed in than they were when Weber visited the United States in 1904. The capitalism he saw then in his travels was still that of barons of the Gilded Age who, men all, towered over the strivings of the ordinary folk. The common men and women were themselves imbued with the original Protestant values, thus willing to work hard with frugality and discipline. Just the same, they were very far from being among those financially graced by capitalism's immense cosmos. Whether the grandchildren of freed men and women in the South or the sons of meatpackers in Chicago Leaming the spirit for the first time, hard work /OT the big-money capitalists had its rewards only when measured against the worse-still evils of slavery and famine. Today, just shy of a century after the appearance of Weber's famous thesis in the work ethic book, capitalism reigns, but in a very different form. This is an age when another side of Weber's vast sociological imagination comes ever more to the fore. He also well understood-more imponant, he invented-the modem study of social organizations. Thus, when Weber concluded T~ Protestant Ethic on that gloomy note about the iron cage of modem life, he was thinking not so much of the dehumanizing effects of the economic system as of the rational organization necessary to capitalism's economic success. In other words, though the better-known Weber thesis was concerned with the origins of the capitalise ethic, it was, in the end, equally well caught up in what then, as now, was the form by which that immense cosmos presents itself. Th.is, in another famous essay. Weber described as the Bureaucratic Machine. But those who remember that essay remember that its historical meditations reached wide and far beyond seventeenth-century Calvinism. The insanely overrational bureaucracy was cenainly advanced on the growing rational spirit of capitalism. But it could hardly be ignored that it also had long roots, even in the West, well into the centuries before the Protestant Reformation. Returning again to my students and their appreciation of T~ Protesrant Ethic, l must add that another of their reactions has always fascinated me. Students seem to understand the social nature and consequences of the medieval Roman Church-and understand them far more intuitively than even the presumably more proximate effects of Protestant thinking. It is a struggle to get across cert:icu.:lo salutis but none whatsoever to convey the power of extm eccle, sium nulla salus. l suppose this is because few of my students are old enough to have taken the increasing silly gamble on life insurance, but all have seen othen; (or been them5elves) sent at least to detention or the principal's office. In any case, hardly anyone can fail to understand, today, that whatever choices we make in the remains of our rational heads, we all face, sooner or later, the threat of expulsion by the new priestly classes who operate the Bureaucratic

Foreword -

xv

Machine-the functionaries who take their authority from officers and rules no one ever meets or reads and thus freely impose their indifference on our urgent needs to get our motor vehicles registered or our babies admitted to hospital care. This, then, is why rhe present book is so very imporrant. Lutz Kaelber's rendition of Weber's History of Commercial PartneTships in tli£ Mid.die Ages takes LL, back to the other shoe of Weber's more famous thesis. Weber was, of course, young when he wrote his dissertation and thus wrote a~ young scholars do---with an assiduous attention to the facts that some other more notable scholar is likely to challenge. Though this may make the book somewhat less accessible than Weber's later writings, it does not make it any less important. In fact, it may make it more important in two ways. First, we who care about truth in scholarship must grant char we owe a very great deal to the caution and care of the young-in this case, Lutz Kaelber, who I would think is roughly at the same professional age Weber was when Weber wrote his dissertation. Both works (that of the translator no less than the author) exude precision from beginning to end. Second, both efforts provide us with the facts we need to make better sense of the book (The Protestant Ethic) we had thought we understood perfectly well. In short, the truth of the matter is that everyone knows, or suspects, that the social order of medieval society-including, of course, the rigidly structured Roman Church but also its canon law and its systematically Aristotelian theology, not to mention the legal system it inherited from the earlier Romans-has had a powerful effect on the formal organization of the modem business corporation. The origins, then, of the rational partnership that lies behind the modem business firm that stands before the managed corporation chat gave rise to che multinational corporation-these origins all can be traced back to the Middle Ages. The History of Commercial PartneTships is the story of those origins. One can hardly understand Weber's more famous books without understanding something of the work with which he began it all. Before Weber's lost decade, he wrote of the lost Middle Ages. Before he came out of his crisis to wrire with sadness of the fate of modem rationality in daily life, he wrote of the formal origins of that reasoning, not in the practical mind so much as in that day's immense cosmos-the Roman Church, without which there could not ha\·e been a modem age ac all. Hence again the magnificent subtlety of Weber's thinking--yes, the modem business organization arose in earnest after the Protestant era; but yes, too, it arose on an edifice. The Roman Church was but one of the pillars of the medieval social order. We know that the church conducted business-with the crown, to be sure, but also with its principal consumers, the faithful-and the business it did was done with maddening efficiency. It was this that led to the Protestant rebellion that began, mundanely, when Martin Luther called the pope a pimple on the body of Christ.

xvi

-

Foreword

Knowing this (as my students seem to, and as I suppose many of us do), we must also suspect, even when we are not sure, that the troubles men and women experience today when faced with the intractability of the corporate state, not to mention the free-standing business corporations, are troubles chat arose very long ago. For years to come, scholars and just plain ordinary readers, not to mention students, will want to thank Lutz Kaelber for having made this gift of translation and commentary to us. The History of Commercial Partnerships speaks to beginnings of the twenty-first century as The Protesranr Ethic spoke to the beginnings of the twentiech. It helps us understand that we are dealing with a social order, now global in its reach, that may well outlive the modem age it helped invent. CHARLES LEMERT

Acknowledgments

This project began as a conversation with my colleague S. D. Berkowitz about the early Weber and the subject of his dissertation. Subsequently, the circle of those who advised and informed me quickly widened to realms beyond sociology to include scholars in the fields of classical and medieval Latin, Germanic studies, Romance languages, medieval history, and law on both sides of the Atlantic. Without the contributions of these scholars, and their selfless dedication to the pursuit of scholarly excellence, this book would have never materialized. I wish to thank Tony Blasi, Nick Danigelis, John Drysdale, Susanne Lepsius, Wolfgang Mieder, Guy Oakes, and Bill Swatos for their detailed suggestions on the manuscript. Gerhard Dilcher, Andy Kozmin as rriy research assistant, Charles Lemert, Guenther Roth, Alan Sica, and Sam Whimster also provided valuable input. I owe gratitude to the heroic efforts of Gene Brucker, Jean Davison, Richard Goldthwaite, Robert Rodgers, and Enrica Salvatori to render the meanings of arcane Larin and medieval Italian passages in modern English. I have also been lucky to receive comments and suggestions from Antonello Borra, Martin Alvira Cabrer, Kristin Caterer, Rebecca Emigh, Juan Maura, and Cristina Mazzoni. I am indebted to Christopher Davis, Esq., for teaching me about some of the intricacies of American business law, the librarians at the University of Vermont's Bailey-Howe library for retaining materials for me that are difficult to

xvii

xviii

-

Acknowledgments

find, and Dean Birkenkamp at Rowman & Littlefield for his encouragement. Financial support came from a faculty development grant by the dean of arts and sciences, Dr. Joan Smith, a research and scholarship award by the Graduate College, and a faculty laptop grant by the Center for Teaching and Leaming, University of Vermont. Finally, I dedicate this book to my children, Amadeus and Cecilia, whose laughter and playfulness have always meant a lot to me, and to my wife, Ellen Arapakos, who in many ways helped make it all possible.

INTRODUCTION

Max Weber's Dissertation in the Context of His Early Career and Life Lutz Kaelber

I am working the way I did thirty years ago: I am in a flow. -Max Weber in the spring of 1920 (Marianne Weber 1988: 687) 1

I simply am not ... a real scholar. -Letter to Emmy Baumgarten, dated 18 February 1892 (Weber 1936, 339)2

The "Lost DecadeO' Perhaps no other work by Max Weber has received as little attention as his first book, which was based on his dissertation. When Weber published The History of Commercial PartneTShips in rhe MidiHe Ages in 1889, it constituted the first of several ingenious studies that would launch Weber's career. The studies made him one of the most promising scholars in German academia before a severe emotional illness derailed him personally and professionally from 1897 to about 1902, after which he resurrected his career in 1903, with the first of a series of I. Translation alrered. 2. In her biography of Max, Marianne Weber (1986: 166) rendered the phra&: without the omission and without indicating the .source.

Z -

Introduction

methodological essays, and in 190~5 with The Prore.uanr Ethic and the Spirit of Capitalism (Weber 1903 [English translation in Weber 1975), 1904, 1905 [English translation in Weber 2001c)). If the scholarly literature's indifference to Weber's early work and life is any indication of their significance, the dissertation and its personal and historical contexts must be deemed inconsequential, almost as if they had been a preliminary to Weber's scientific corpus. Due to the hiatus of scholarship, the ten-year period after 1889 has consequently been termed the "lost decade" in Weber's life (Sica 2000: xiii). Yet it is not as if Weber's early career had not received any attention alto~ gether, at least not in more recent scholarship. When Reinhard Bendix ( 1962) wrote Max Weber: An Intellectual POTtrait to introduce Max Weber to AngloAmerican sociology, he gave a terse, two-page account of Weber's life in the opening chapter, "Career and Personal Orientation" (Bendix 1962: 1-2). Yet Bendix made no reference to Weber's studies on medieval partnerships in the subsequent chapter, "Weber's Early Studies and the Definition of His Intellectual Perspective." The condition of neglect of the early Weber was somewhat abated over the following decades by the publication of newer studies. To use Lawrence Sca.ff's ( 1984b) apt phrase, these studies furthered the study of "Weber before Weberian sociology." An early contribution to such a line of study came from Vernon Dibble (1968), whose essay ostensibly thematized ''Social Science and Political Commitmenr.s in the Young Max Weber." Curiously enough, Dibble's study begins in 1892, with Weber's (1984) publication on the conditions of agricultural workers in East Elbian regions, but it omits any reference to Weber's dissertation or his study of Roman agricultural history of 1891. Neither does it refer to Weber's personal situation before that time in exploring his political ideas. Dibble's treatment of Weber remained symptomatic of the scholarly literature for some time. By the mid- I 980s, Scaff ( I 984a: 83) was still able to comment that "with few exceptions ~he pre-1898 texts have been either completely ignored, dismissed as immature productions, or relegated to the esoteric marginalia of Weber's scientific corpus." Scaff's statement heralded a new focus on Weber's studies before his illness. Some of the most prominent contributions include explorations by Scaff himself of Weber's studies on German political economy and agrarian conditions (Scaff 1984a, 1984b, 1989: 34-72), by Wolfgang Schluchter (1980) of Weber and imperial German capitalism, John Love ( 1991) on Weber's studies of Roman antiquity and capitalism, and Martin Riesebrodt (1985) and Keith Tribe (1983) in their essays on Weber's studies on politics and Pmssian agriculture. 1 l These and other essays (including one by Scaff), togerher with a partial translation of a few of Weber's writinj!s at the time, are included in the excellent collection ..Jited hy Keith Tribe (1989).

Introduction

--

3

These studies contribute significantly to Weberian scholarship and go a long way-together with several tomes of the Max Weber Ge.samtausgabe covering this period (Weber 1984, 1986, 1993, 1999)-coward remedying the paucity of information on the early Weber. However, they share one other character· iscic: except for occasional small bits of information, they leave out Weber's earliest work and eady career. Such a selective treatment of Weber's early career, and concomitant neg· lect of his dissertation and its contexts, is indicative of Weberian scholarsh.ip to this day. Most recently, the dissertation and its contexts received a cursory treatment in Richard Swedberg's recent study of Weber's economic sociology (1998: 181; see also Swedberg 1999: 5), and no detailed references to it can be found in the Cambridge Companion to Weber (Turner 2000), Stephen Kalberg's (1994) exploration of Weber's comparative historical sociology, or Jack Barbalet's (2001) study of Weber's inaugural address in 1895 and earlier writings. Even works that specifically deal with Weber as a legal scholar, such as the influential study by Stephen Turner and Regis Factor ( 1994) and by German scholars of law (Breuer and Treiber 1984; Rehbinder and Tieck 1987).~ do not make reference to Weber's earliest work. As Alan Sica (2000: xiii) puts it, "His dissertation on late medieval trading companies in the Mediterranean is reasonably well known by name, but has not yet substan• tively penetrated Anglophone scholarship, since most students [of Weber's work] rely upon capsulizations for their knowledge of this important work." What does exist are, with perhaps but one exception, brief overviews of Weber's dissenation work (Roth 1978: xi-xiii; Sica 1988: 101---4; Zingerle 1981: 76-77; but see Marra 1992)5 and equally short considerations of Weber's pri• vate and professional life, largely based on his youthful letters and his biography published by Marianne Weber (1936, 1988). 6 This intoduction seeks to address these shortcomings. First, it explores how Weber chose and developed his dissertation, and it describes and analyzes the academic contexts that framed it. This includes an exploration of how Weber's dissertation influenced his early career. Second, it sheds new light on W~ber's personal life during this time. Of particular interest are Weber's early romance with his cousin Emmy Baumgarten and his life as a bachelor at his parents' 4. Schieras e.say in the latter volume and especially Reali no Marra's ( 1992) ,tuJv are esccp, tions. For further comments on

tho!ie studies, see my later discu5Sion in this introduc.tion.

5. fu a consequence, mischaracterizations of Weber's earliest sruJv abound. See. for example, the peculiar as.essment in Love ( 1991; 277, n. l ). where the author writes that "Weber began his scholarly career ba.,ically as an ancient historian." 6. &sides Marra (1992), Kasler (I 988, 24-28) provides one of the most perceptive treatments of Weber's dissertation stuJies. On the need to integrate biographical research with an an.~lysis of Weber's work, see Kiisler (I 989).

4

-

Introduction

home, ruled by Max Weber Sr. Both parts reveal both the extraordinarily difficult circumstances in which Weber did his work as well as his remarkable academic achievements. Third, this introduction gives an account of the major results of Weber's dissertation. The dissertation was a technical study, and it.1 major lines of argument were sometimes buried in a flow of historical and legal ccnsiderations. This part serves to outline those lines of arguments. Finally, thii introduction provides an analysis of the ways in which Weber reintroduceci some of the themes explored in the dissertation in some of his later studies, particularly The Protestant Ethic and the Spirit of Capitalism (2001 b) and Ecanom:, and Society (1978) and also how they resurfaced in General Economic History ( 1981 ). It is shown that while the themes explored in the dissertation were not central to his later work, Weber nevertheless made ample references to them. and he saw no need to revise hi5 major arguments.

Ebb and Flow: Historical and Biographical Contexts of Weber's Early Career Flow: Weber's Studies and Early Career After Weber took his final high school examination (AbituT) in the spring of 1882, he left Berlin, his parents' homestead,7 to enroll at the University of Heidelberg for the spring/summer term of the 1881-82 academic year. 8 Weber's main area of study was jurisprudence, but he also studied history, economics, and philosophy, and some works in theology (Marianne Weber 1988: 64-69). 9 Weber remained in Heidelberg for three semesters. He then moved to Strasbourg for a one-year stint in the army from October 1883 to Septem-

7. Shortly before completion of thos manuscript, Guenther Roth (2001) published hi• study of Weber's family history. For the most part, new information contained in thos groundbreakmE book has been incorporated in foomotes. See al,c my forthcoming review of this study 1n the /n. le't1lt1lilmnl}oumal of Politics, Culture. and Society. 8. To this day the academic vear at German universities commences and ends later chan ar American one,. The fall/winter tenn, called the winter semester, begins typically in early to mid· October and lasts unril mid· to late February. Thesprmg/summer ternl, or summer semesrer, com· mences m mid- to late April and ends in mid-July. 9. According to the vita that accompanied his di'-"'rnition, Weber's teachers m Heidelberg incluled the legal ,cholan; &mt Immanuel Bekker. Otto Karlowa, Karl Fricdnch Rudolf Heinze, and Hermann Johann Friedrich Schulze, the philosopher Kuno Fischer, the economist Karl Knies, and the historian Bernhard Erdmanrudorfer (see Weber 1689a, 59). For Weber's srudies, their intellectual and •ocial concexts, and the identification of and further infonnarion on Weber's teachers. see the extraordinarily detailed account in Marra (1992, 21-33), which supercedes those m Kasie, (1988, 3-5). Deininger (I 986: 4-U ), and Schiera (\987). Other intellecrual influences on rhe "young Webec" an di.st-s in Strasbourg as a reserve offker ( Deininger 1986: 11). The contact with Goldschmidt is men, tio....d in Weber's l-er and Goldschmidt. 35. Gold6Chm1dt', lettrr to Althoff 1s printed m Gold1nuoned who entrust natives with commmdas. All the meager documentary sources for Spain, southern Italy, and the islands in this territory allow for rhe conclusion that the institution was known there bur also thar an original development of it is not to be found. 26. Presumably of the year 1063 (acrnrding to Pardessus). The age, as 1s well known, is controversial. The statutes of Ancona of I 397 follow thf Trani. 27. See Laband for rhe Tawla de Amal/a he published m the Zeitschrift fur Hand,lsrecht, vol. 7, and Silberschmidt, cited earlier.

The Partnerships of Maritime Law

7J

applicable to primitive trade along the coast with little capital. The institu· tion as such, belonging to the category of large-scale trade, does not appear to have developed there independently. 28 All coastal areas mentioned so far, with the exception of Barcelona, did not have a permanent large-scale trade of their own. While the institutior: and its characteristic principles were known, they did not emerge there originally, and its casuistic development was not complete, which it was in the large Italian coastal cities.

Pisa Pisa is treated separately and therefore excluded from consideration here (see chapter 4). Venice As is evident in the extant documents, Venice fully developed the principles of the commenda and the societa.s maris in the coll.egantia, which Silberschmidt documents for as early as the tenth century. 29 The documents reveal also that the actual entrepreneur can be the holder of the collegantia; the coll.egantia is a form of productive investment of capical.3° 28. The Consuetudines cwiratis Amalpl,iae (ed. Volpicella) of 1274 c. 14 puc the socittru va,cdl; (- Colonna) next to the sock'laS mans, but without the principles characteristic of the latter. In particular, if in doubt, the profit is divided according to the conrributions (pro rata). That the statute cons,den. it necessary co make a special statement rhat the capitalist assumed the risk of a venture makes it likely that the socieras mans was imported and Jid nm develop independently here. 29. See the settlement document of 1081 (A,-divio V=w VI p. 318), which mentions rog,,dia, tTartm1issum, commendacio, and collegantia. Of those tcnns, tTansmis.!um likely pertains to a venture involving freight, perhaps wich ,he commenda of a shipper. Com"""""1cio is probably, a.s "' often ,he CM panner.;hip Juhus Alexander has put up as ready cash or proceeds 500 denarir and Secundus the slave, as agent of Cassius Palumbus, put in 26 7 denarii ( ?) ... will be owed to Al bur· nus. If in this pannershop anyone wrll have been discovered ro have committed fraud by deceipt in regard to one's assets, for one denar1us he will be obligated to pay to the other person JO ( ?) ... and when the rime ( of the panner>hip) is up, after deduction of the debts, they will need to recover the sum described above, and if something will have been left over, they will need to divide that.) The etymology of the term "arrenarum" remains wtelear. Mommsen, in Bruns, Fonr,,, p. 269 (ed. 5) 3S5Umes that it means "sub artha mutuo datum" (mutually gi,~n as earnest money). &eems more probable to assume the vulgar compo;ition ad-Te•na.sd for eveiyrhing that "comes our of' the con· tribution of capital in the form of a profit or a I°"'. This would fit the views that are customary fur the commenda-we will come back to thia is.sue in our discussion of the estimauon in Pisa. Furthermore, an e..sential characteristic of this case, as well of the medieval, particularly the Pi,an, sociera., '""""· was the consideration of contributions nor made m cash. The whole document makes a likely ca.,;e fur the foundation of the sea panner>hip in Roman vulgar law. 35. Identically in the.different redactions of the Genoese statures: The Fragment of Datta IV: de pea.ma ad statutum remiinum tu:ereliUm stu:cec/i1 in locwn tti Ithe price stands in the place of the thing sold), and vice versa, applies. The same in S1 which there was to be an equal dlVlston of that which was acquired by the industry of the brorhers who lived together. See also O.ms. II 45 I; and lll 30: the inherited joint prnperty was m be distnbuted by kin groups. the property acquired through work, per capita. Cons. I 19 demand., strictly following rhe Roman pomt of view, evidence that a socittas has been entered into, which othenv1se i, presumed to eKist when people live together and worl< jointly. 11 UJO negates the decree of I 19 by staring d1ot 1f a panner cannot provide evidence of the means by which he acquired something, it is to be pre,umed that he acquired it ex communi [with the means of the commumry). which therefore assures joint ownership in spite of the fact that there is no e,idence of an intent of acquiring 1t for the communiry. 9. &maim, Sran,li inedili della clltil di Pisa. vol. II, p. 880.

90 -

Chapter 3

rook place, as. a credit or debit related to his share 10-and once the commu• nity participated in business, this became inevitable-the principal question had to arise: Who among those who were members in the household had an individual share in the property-the sons, perhaps! More and more an individual's part in the community had to be viewed as a share, and there had to he the tendency to constitute such a share as a contribution to a partnership. With its important legal ramification, a decision had to be reached on the question whether family property was reduced to being a communio with quota shares of the members, or whether actively and passively property remained an undivided entity that was stronger than individuals' claims to the shares. Following Nordic reminiscences, 11 southern Italian and Sicilian law 12 fore· most took to the first direction. Accordingly, ir regarded family property as divided between the father and his descendants, and inter vivos and moms causa [among the living and in view of death) the father could only dispose of acertain quota, just as any of the children.

10. The difficult casuisrry that resuhed from thi• necessity to account is clearly evident in the many dec!Slons of Baldus regarding the question of what was to be held in common in a jomt hoasehold. See Cons. I 21. 97, 260, II 87, 347, IV 189, 239, 3.35, 461. V 40, 65, 234, 259, 284. 372, et ceter-a. The issues of how to rake into account a wife's marriage porrion, and her ,l.,s which mstitigated a ,peoal provision i11 the Lombard l.nws (see aoove), are also of major corisider.i:!.tion here.

11. Analogies to this can he found mold Frisian law and in the law of the Bul')lundians who See Briinneck, Skilieru mirtdalrerliche Stadmchte; Pappenheim, lAunegild um Garethinx, brings together the pan c. SI, I lib. leg. Gundob. with Westgotalagen I Arfl>aer b.

came from the Baltic.

9 pr. IZ. In Sorrento (Consuelltdine> rubr. 4.H, the father acquire• for himself only what he gain; through hi• own lahor, while he administers the revenues that derive from inherited propeny for jotnt suppon as long as the children live in the •muse. However, when the children reach legal age (rubr. 43 cit.), as soon as they no longer live with h,m (rubr. 7; r,ee also Consuet. ofNeapel 1. 7), the division of the revenue among the father, the mther, and their children in equitable .shares (Virilporrionen), and sons can bring suit ( rubr. 43) to have such divLSion. Hence, [we have here[ a communion of family members. The statutes of Catania of 1345 (Tit. III Con.suet. unica) e>press the .,ame relationship as follows: the assets of the family member became "unum corpus" [one body[. The statures of Messina (from the time of the Hohenstaufen), Caltagirone ( 1299), and the On:lina..imin "'1Tae No1i dcrermine the father's quota share further: rhe father and any member of the family-can legally dispose only of his quota, bur without further resrricttoris. The statute of Messina c. 33 corisiders it rn>ce..,ary to explicitly eKclude the pombility to bring suit fur a disrributmn of propeny as long as the parents were alive. for which the otatute of Caltagirone makes the exception "nisi pater emancipet eum vel eam" (unless the father gives up his authorlty over him or her). As fur as is known, the oldest juridical menrion of such condition, i, the Novella Rogerii of I ISO (Greek and Latin: "sl genitor in vita habuerit 3 liberos ... con.,uerudo est ex omni substanria eorum ipsum obrinere dua, panes, id est.8 uncias, filios autem terciam" [if t:1-.e father has had thr..-e offspring in his lifetime ... it is customary for him to retain two pans of thetr

Family Communlties and Communities of Labor

.....,._.

91

However, no other parts of Italy had such legal views. 13 The financial significance of this form of property for the individual became increasingly important. Therefore, after the communities began to play a role as such in larger business endeavors, the individual claim to the joint assets had to be considered as a contribution to a joint business, even though a division of family assets into ideal quotas did not happen to the same extent as in southern Italy. The principal unity of the assets remained intact, however. The particular principles that applied to such communities-that is, its orientation toward communal acquisition and the unrestricted disposal of the joint assets of all individuals involved-were particularly well suited to bestow upon the community the ability to conduct business.

Household Communities Outside the Family Yet due to this latter factor, we have no reason ro think that these principles were at first limited to the members of the family. As has been emphasized earlier, a domestic community included other persons besides its family members. Since the Lombard Lau•s considered the fact of a domestic community, rather than the kinship element, as the decisive characteristic, the legal principles that applied to this community could also be applied to conditions in which the same ba~ic elements-namely, a joint household and joint acquisition through labor-were present among persons not related to one another. Indeed, nowhere in medieval law were the effects of the domestic community limited to kin groups. Instead, such community relations existed also outside the family and were treated as its equivalent. For the earlier periods, this situation first applied to the crafts.

whole property, that is eight-twelfths, hut rhe children retain a third)). Already, the principle of /)art disp.mible of the Code is appliec to the relations inter vioos (those who are .rill alive) here.

The unmed1ated 1uxtapoo1tion of Norman and Byzantine law in Sicily, where the principle of perwnal law was nor abandoned beiore rhe Consututiones Regni Siciliae of Emperor Frederic II (I. II t. 17)-in 1286. in a document in Amalfa, the declaration "vivens lege Romana" Ito live by Roman law) snll exist., (Volpicella, Con.suet d' Amalfi)-may have facilitated the transferal o( rhc Roman concept of communio onto Germanic family property. See the Sicilia:, statutes (on this, Briinneclc., S~iberu 11Utrelalterbche Sradtrechr,,). 13. The Lombard Laws, coo, ha,·c a tendency to consiitute family property according to the principle of its members having quota-shares, as IS clearly ev,dent in documents of the Regism,m Farfe= (II Regesw di Fa,fa pubbl. ddla Soc. rom. di swr. pat. vol. II, Roma 1879; .see also Brunner in the Mirr,,ilungen cl.es ln.stinas cl.er 6Irerreichischen Geschichrsforschung, vol. 2, pp. lOf.). The cmcs parrook, as we will see, m this development only pamally.

92

Chapter 3

Associations of Artisans We have touched on the fact that in inland cities the conditions for a largescaie distance trade came about slowly with the cities' increase in power in their relations to the outside world. We have also stated that naturally at firsc their trade consisted of transporting products to the next marketplace, possibly a seaport, which took over from there. Hence, commerce consisted more of selling manufactured goods than retailing them, and commercial labor had therefore to be the basis for the cities' affluence, 14 as the rules concerning the policing of the crafts made up one of the largest parts in their statutes. Commercial labor was at first a matter of the crafts. Hence, it is here that we can find the beginnings of the formation of partnerships. At first there was little need for, and possibility of, either the creation of joint funds through the aggregation of capital or the sociation of the type of the unilateral commenda. 15 If an artisan joined up with a colleague, he did so to work jointly, co share with him the work in the workshop and office. Since this activity mainly cook place in his domicile, which principally was also workshop and office, the colleague at work became his associate at home and shared with him table and household. This was true for the dependent journeyman (famulus, factor) as mu.:h as for the independent associate (socius). The stare ad unum f)aTICm et vinum is thus the main characteristic of this association of labor (to use this term), and this is of importance for it~ legal structure. Only the origin of this form of association in the artisan professions 16 can explain that even later 14. Lasrig, Entwicldungswege o.cnd Qu.elJe11 des HandeLn-echts. clearly delineated the difference between places of maritime trade and industrial production. Goldschmidt argues against putting the difference too sharply and overgeneralizing the results ('Zeitschrifrfur Handelsrecht, vol. 23, pp. 309ff.). Lanes (II dnitto commetciale nella /egisl sr.at.) follows Lastig but focuses more un givmg an overv,ew of the existing legal principles than addressing the historical development. His account is rhus less suitable for our pu'l'(>SC of dealing with legal history, even though it is an excellent introduction to statutory law. 15. We will bridly address the application of the commendti as a legal form to the relation· sh1r betwe.en the worker in a putting-out situatUln aml the employer in our chapter on Pi.an law. 16. See Baldus, Consilia V 25, who de;cribes a soctety of butchers who are at the same banco [a publtc bench or stall where they displayed thetr wares!. See further the following passage in rhe Saxon Min'or (book I, chapter 12): "Sw6 brudcre oder anderc lute ir gut zu ,amene habn, erh6en si daz mit 1rre kost oder irme dinste, der ,,.ome ist " aller gemeine, d:welbe ist der schadc. Swaz aber ein man mit sime wibe nimt, da:1 en reilt he rr,it sinen bnldem nicht. (Cf. the pas.sage in the umba,d Laws.) Venpilt aber ein man sin gOr oder verhuret eri oder verguftet erz m1t gift oder mit kost, da sine briidere oder die ir gOr mit ime gemeine habn, nicht ztlphhcht en habn, der schade den her daran nimet, sol sines eines sin, und mchr siner briidcre noch siner gewerken, die tr gut mit ime gemeine habn" (When brothers or other people own property jointly and rhey improve it either through expenditure or through their own labor, the gain !,.,longs 10 them jointly. The same

Family Communities and Communities of Labor

-

93

the joint household remained, as we will see, an important, if no longer a necessary or constitutive, element of the larger industries and the commercial partnerships that in financial terms dominated the world.'7

Common Characteristics of These Communities The influence of having a joint household on the structure of such associations is unmistakable. It is clear that the status of such a socius had to be based on trust, to a much higher degree than it had to be the case in a partnership, anyway. His position is to a participant like a servant's to a wage laborer hired on an ad hoc basis. The semblance of this relationship to a family io obvious, and except for the kinship element, all elements of a family household community are present. Hence, it needs no special explanation that son and famulus are created the same wa), which is also true for the facwr, the socius, and the coheir who has not received his heritage, respectively. 18 One cannot say that principles of "family law" carried over to other forms of association. Rather, for the law of property the same basic elements existed, and this led to a parallel development of law. The relations between fellow workers were basically similar to the relations between members of the family household. The family household, in tum, found it necessary, if it also intended to be the basis for a commercial enterprise, to set up its bookkeeping system and to represent itself toward third parties-in short: to cover all aspects relevant to the law of property-the same way a commercial company did. Thus, in both cases the legally relevant aspects coincide, 19 but in the case of the family community, its foundation, the joint household, existed a priori, whereas in the case of the community of labor inter ext:raneos [between nonfamily members], such a foundation had to be intended and created. For this reason, the family community appears as the primary institution in the documents, which it was indeed, and receives primary consideration in places where both are addressed. holds for their losses. But whatever a man gains from his wife (in marriage), he does notshare with his brothers. If a man gambles away hi, properry, or squanders it through debauchery, or wastes it on gifrs or expenses to which his brorhers or those with whom he stands m joint ownership have not agreed, then the resulting losses are hi• alone and not those of his brothers or peers with whom he owns properry jointly(. [For the translation, see The S/lxon Mim>r, A Saclurnspiegel of the Fourteenth Century. tran._ Maria Dobmy (Philadelphia; University of Philadelphia Press, 1999), 72. L.K.) On an almost regular basis the Italian statutues count the anisans among the ITl£'carores and regulate their busmess there as well. [ 7. [Weber makes a second reference to the previou., footnote under the same nLmber here. L.K.) 18. We shall return to this issue specifically in the chapter on Florence. 19. See the passag,- in the Saxon Mi'ITDT in note 16. According to the Saxon Mmm, 1t IS obviously assumed that rhe peers have joint property.

94 -

Chapter 3

In the cities the older foundation of public law and private law in kinship had already eroded by the time medieval law began to develop, and here and in other places this foundation was replaced with another, purely economic one.20 Commercial labor is the common foundation of the structure of community within and outside families.

Special Characteristics They Have in Common Limitation to Male Socii I briefly wish to point out two particular characteristics of the community at this time. First, its consequences were limited to the male1 1 members of the community. 22 That is, only acquisitive members working in a business can have ownership in the joint assets. This is another proof of the fact that the basis for all of this is joint acquisitive labor "for better or worse." Exclusion of Real Property Sec0nd, real property is regularly not part of the joint fund. As was the case for the societas mans, where the privileged rights of the creditors were limited to the movable assets, 23 here the movable assets are owned by the community and subject to the consequences of this condition.H The joint house stood at the beginning of the development of the community and represents its core element, but as far as is known, it is not considered part of the joint assets, 25 and the other real property is always not part of it. Therefore, further developments only concerned capital not vested in immovable property. 20. For other conditions, sec Lamprecht, Deut.,dies Wmschaftsl.eben im Mitrdalrer I, p. 288, n. 3,

and v. lnama-Stemegg, Deousche Wirudiaftsgcsc/uchr,e, p. 75, n. I. 1ne remark> of Heusler, lruri!Uliorum, vol. 2, pp. 304ff.. an: also important. If the assets mainly coosisr of real proper!}', then: is a ten· clency tow-.,d having separ.rte assets and individual owneiship, whereas 1f the assets mainly cons.,,, of mo.,.ble property and commercial labor, the tendency is toward Joint property. 21. See Ansaldus de Ansaldis, Di>cursw legafu ,le cummerdo et mercaum, (Genoa 1698), Disc. 49, according to which the issue of the si•"Ters· sha,e wao contested in common law. 22. Cons tin.cum Usus Pisanae Citliraris m Bornum, rubr. De sociew.e inter enraneos facia (On the partnership among nonkin(: "inter laicos et masculm" (among male members of the community). Funhe, examples will be given lateeussion for Florence.

Family Communities and Communities of Labor

-

I 07

in other Italian cities later the situation was exactly the opposite; that is, the characteristic of being a coheir does not already constitute the status of a socius. Rather, even family membeIS enter into a special, time-limited contract, which is regularly associated with a notice to the public register, and only then these members become socii with all consequences. The family partnerships had thereby fully entered the realm of other associations; it is the special characteristic of the family pannership that is was easy to found due to the already existing joint assets and business activities. >7 Venetian law followed its own path compared to the development of law in the other parts of Italy. It was little affected from the spread of Roman law but was therefore also of little influence on the further development of customary law. The latter, because it was affected by different overlapping influences, does not present nearly as clear a picture as could be obtained for the legal situation in Venice.

Other Communal Statutes in Italy We find contained in almost all statutes of the more important inland cities a rule that we took as the starting point for further development: a person who lives with others in a community that encompasses commercial activities and a joint household, be it as a socius of a craftsman or as a petty business owner in a shop (stacio) or office (tabema, bottega), the latter of which in earlier times coincided with the domicile, is liable for the members of the community as a debtor. The following passages deal with the community of family members:

Uber dvilis

UT~

Yemnae c. 150 (determines the mutual liability of father and

son).

Sto.tur.a cammunis Vissi I. Ill c. 19. Statutes of Rome of the fourteenth century (ed. Camillo Re) c. 108: Liability of rhe "brothers of aforesaid merchant moneychangers or those who have lived together with them."18 Uber tercius causan,m dvilium communis Bononiae, printed in 1~91: to the landlord are liable the colonus and those who live "m the same famJy or com· munity or partnership."59

57. The other contents af the Venetian statutes are trivial. The only thing that ,. remarkable about them is that in I. I c. 37 the father's liability for a ,on's debt contracted by a car3n 1 not dividing this part by the number of merchants and persons but instead by the numb,-: of shL>pS]. Hence, the shares m the partnership are d1v1deent• et alii solvt>re teneantur si confiteantur vel probatur conrractum factum e.sse pro societatt . , . et in..

telligancur soc1i." LK.J 84. Wuh the exception of the qu,wira ex successmne [gains from succession], which probably were not considered m the older law, the connection to the Lorn~ 1 aws is evident in the character of lucra on a separate account (see aoove). Like the goods owne,,, '. • women and th• pur· chase money (Kaufschilling) in the Lomba,d Laws, the dos [dowry( plays as gnificant role for the community in the passages in Baldus (cited in note 10) in terms of how to, ccount for it.

118 -

ChapterJ

prempposition is supported by the aforementioned passage in the statures of Modena. Contracts formed by a socius "pro societate," constitutive of rights and obligations, are attributed to the community and affect it in such a way as to give each socius legitimatio ad causam [the right to bring suit or be sued independently) in case of a legal dispute. The statutes of Massa, cited earlier, emphasize this direct consequence: the community is not constituted according to the Roman practice that only the net profit was to be given to it; instead, the existing obligations are directly, both actively and passively, those of the community. The statutes of Arezzo, as c.ited earlier, express this most clearly: c. 42: 1f a panner of a partnership in a mercantile business or trade has contracted an obligation, ownership, possession, an action by the mere operation of law, and even a direct action, may be sought from another partner.... Payment to toncal foun:lations of the firm, which is undoubtedly an important aspect of the history of corporate law, is incomplete without reference to the developmtnt of the principles of legal representation. For our purposes, it suffices to presume that the finn succeeded the joint store in reference to the issues addre!SN 1n the text. 98. Arch. de !'Orient laan Vol. II Docum. p. 5: "Ego Raffus Dalmacus facio, con1tiruo ct ordino meum certum nuncium et proc.uratorem Lanfrancum de Lenaris socium meum presentum etc." [I, Raffi.ts Dalmacus, make, establish, and ordain as my authori,ed representative and aJ;ent ·.anfrancus of Lenaria, my partner present, etc.I. ln rum, literally with the same wonls Lanfrancu, le Lenar,a designates Raffus Dalmacus his emus nuntius and pmcurcuor. Similar Jocuments with th, pled~e to be liable for the contract., of the pErtne!S for the full amount are found in the same puolications. taken Imm the notary registers in Famagusra on Cyprus, Ajaccio in Armenia, and similar ca. 100.

124 -

Chapter 3

socii liability for the full amount was desired and that the corresponding customary law developed out of it?99 It should be noted, first, that the face that documents for earlier periods in the Middle Ages contain a certain agreement does not mean at all that the expressly stipulated consequences of the agreement would have resulted from it anyway, ex lege-to the contrary. The notary documents of the time usually contain such provisions in great descriptive detai!, 100 and these documents had much cause to include an express clause on joint liability. We are dealing here with international relations. Just as the Florentine guild statutes in the fourteenth century still prescribed, for the sake of rhe certainty of the law in such international relations and at a time when joint liability of the socii had long been established as a legal principle, that parmerships had to give legal authority to their representatives abroad in the form of a document, in this situation, too, the same need existed to have such a doc.ument in order to demonstrate actual authority. In fact, there existed a special need to document actual authority because commerce to foreign shores was involved and the commenda wa~ the typical form of partnership. Hence, in such a case, a traveling "socius" was put in the position, lacking documented authority to form contracts that would solidarily bind the socii, of being regarded as a tractator in a limited partnership. But, importantly, the evidence provided in this chapter, I would like to think, refutes an affirmative answer to the question asked earlier, as the evidence shows that statutory law developed not, as one would need assume for the case that commercial practices had resulted in the development of solidary liability, in the direction of further extending of the principle of solidary liability but in the direction of limiting this principle, and limiting its applicability co a joint commercial business. This does not preclude that the issue of which cases joint liability was stipulated for in commerce was not of significance for the statutory development of law as well. Since the notary documents are clearly influenced by Roman notions of jurisprudence, the drawing up of such documents might very well have been the avenue by which the perspective of jurists brought itself closer to commerce and thereby the ,reation of law. 99. As early as in the Lombard Laws, in I. II rubr. de debitis tt quadimDniis, cited carher, there

•< a re'ierence to cartis ofthe documents in Archwes d,, l'Onen1 latin, all of which use this form of law. 14. Baldus, Con,i/ia V 155. 15. It is, however, likely the basis for the view of the p,umers as joint debtors (Ko,realschuld,,,.,.) expressed in the Decis. Rot& Romanae P. Ill d. 168.

Conclusion -

173

satisfactory to make reference to the joint liability of the argentarii in Rome, which Petrus de Ubaldis intimated, 16 where associations joined together by solidary liability carried out banking deals, since these associations by no means had their main business in banking. Finally, it was believed that the Roman institor provided the legal formula for the institution. As in the case of the institor of the Pandects, this penained to liability on contracts formed for a business managed by the person who entered into the agreement and materially formed contracts on the account of others. Those others were the socii jointly, but it also included the contracting person; yet the inclusion of the latter constitutes a depanure from Roman law. As for the institor, others are liable for the socius for the full amount solely on the basis of the fact that the socius carries on business without having a special authorization to do so. If, finally-which seemed especially significant-several persons have one joint institor, then each of these persons was liable for him for the full amount. Accordingly, a mutual praepositio insr:itoria [agency relationship] of the socii was presumed, and this view ultimately remained, as is known, the dominant one. 17 This led, wherever Roman concepts were employed sincerely, to astounding consequences: In his commentary on the statutes of Milan, Carpano concludes that joint liability was in effect only when an individual socius formed contracts in the name of the pannership, whereas in the case of a contract formed in the name of the parmership in which all socii were involved as individuals, there was no joint liability, only a liability pro rat.a, because in that case each partner formed a contract on his own behalf; therefore, no institor existed, and there was no legal basis for joint liability.18 This is yet another example of how the development of legal casuistry became the basis for legal decisions and how little justification exists for the view that this was the outcome of a deeper philosophical or social theory. In general, no one seems to have been bothered by the problem raised by Carpano, even though other authors mentioned it. 19

Actual Foundations of Solidary Liability In spite of these attempts at a purely Romanist construction, jurisprudence could not ignore the view that joint liability, where in fact it existed, did not relate to the legal constructs mentioned previously but to concrete and existing conditions. The conditions and the constructs therefore had to be related

16. De duob. fratribw IX. 17. One can still find it in v. Treitschke, Die Gewerl,egoseUschafr, and expressly in Th6l, Handelsrecht. 18. Carpano on cap. 483 ofrhe star. of 1502, n. I. 19. Bartolus and Petru• de Ubaldis. Pettus de Ub., De dUDb. fratr. IX.

174

Chapter

6

to one another, an undertaking rhat was not always successful. The legal literature always stressed that the point of departure for this development was the community of the household. In the larger legal works, the topic of the duo frarres communicer viventes [two brothers who live together) is explored repeatedly, and it was also the subject matter of monographs. 20 If possible, the Roman schema of the socier.as omnium bonorum was applied, but its real foundation, the joint household, only played the role of justifying the presumption of a mandate or instiwr relationship, in the sense of the earlier passage. This point of view reflected little of the actual conditions, but it was important for its further development. Since jurisprudence viewed the community of the household, and later of the sr.acio or tabema, merely as a symptom of the existence of an association, it was led to analyze the elements central to the existence of an association, and whose presence would then legally constitute it. At first jurists emphasized that living together as such did not matter. What mattered was living together for the purpose of doing joint business. A wife living with her husband, as Rot.a Florencina Dec. 65 explains, is not socia of the husband because of it, for their living together is based on a different legal principle than the intention to do joint business. The same applies to brothers who live together. Here, too, the legal basis of liability is not found in the simple cohabiratio21 but in the corresponding intent to work and do business jointly. Jurisprudence found this intent expressed in the lack of keeping accounts and their settlement among the fratres.zi All these characteristics [of joint business) that the law alluded to also existed in reality, as we have seen. If the most important aspect was the intent to do joint business, then this intent had to express and manifest itself accordingly. Baldus demar.ds joint "negociatio,"23 and also that each one of the persons involved, be they members of the family or extranei, was indeed working and held himself our as "ne-

20. See Pettus de Ubaldis de Perusio, De duobus fnuribus; Franciscus de Porcellini, of Padua, De duobus frambus. 21. Baldus, Consiua IV 472: Cohabiratio ru:m foot soci,tatem. 22. Petrus de Ubaldis, at the beginning of his writing D, duob frat:r. Ansaldus de Ansaldis, Viscursus legal.es de oommercio. Disc. 49. Baldus, Con.silia V 482, count• the following as criteria for the societaS omnium lxmorwn intJ!T frat:res. I. coarctatio in una domo [confinement in a household); 2. commensahtas (vixisse communi sumptu) (companionsh1p at dinner; having lived at joinr ex· pense]; 3. lucrorum communicatio [sharing of profits); 4- defens10 communis m lmbu, ~oin1 de· fense in lawsuits]; 5. communio bononim pro mdiviso (joint ownership uf goods as undivided]; and 6. pubhca fama super soc1etare omrium honorum [public knowledge of the partner;hip of all goods]. None of these condmons (beyond the one mentioned in no. 6 was sufficient for the prcsumptmn that a societaS existed. The negotiJuio commwus (joint bus,nessJ was always considered nece~ary.

23. See at the end of the previous note.

Conclusion

-

175

gociator."z.t The conclusion that only the profit that derived from this type of gainful activity belongs to the community suggested itself quickly; lucrum of another kind is considered "additional gain" (Ad11entizgut). 15 A further consequence of this is that actions undertaken on the account of the association also had to be formally distinguished from others. Jurisprudence found such a formal characteristic in the phrase that only actions undertaken "nomine communi," formally on the account of che association, pertain to it26-a per· spective engendered by the presumption of a mandate as well as an instiwr. With the acknowledgment of this characteristic, jurisprudence once again operated on the basis of legal practice, which, as we have seen, led to the same result. That this happened can perhaps be partly attributed to jurists who were responsible for the redaction of statutes and legal practice, and who had recognized those consequences clearly.

Legal Effects on International Development: The Partnership Firm The Romanist legal perspective was not comfortable with joint liability on the basis of the mere existence of such a community, and despite all attempts to interpret its character differently, it did not fir the scheme of the Romanist view. Baldus recognizes its existence vis-a-vis the existing law, but his individual decisions are obviously motivated to limit this institution, which he did not like, by exaggerating the difficulties in proving that the parties were indeed motivated to see their community as a socieras. 27 In his commentary on the statutes of Milan, Carpano is doubtful whether cap. 415 of the statutes of 1498, refer· ring to the father's obligation to release his son's share of the inheritance to the son's creditors, was not contra dillina et humana jura [against divine and human law].18 He thereby seeks to make the proof difficult, a difficulty he seems to view as desirable. He remarks, in regard to cap. 481 of the statutes of 1502, referring to brothers who live and have their assets together, that one should

Z1. Baldus, Cons. V 125 (associauon of butcheri); V 172: only members who are capable of domg business, and who act,vclv carry it on, are considered socii; I 19: only if a sOhip or account, in whose name activities arc undertaken, are to be held liable for the full amount for aU undertak· ings and to all (and) individual creditors of the account or partncrship.-The parmers or partic· ipan~ in whose names thE' activities do not take place, are not considered t.o be, nor are, in any re.peel liable beyond their contribution or the amount by which they participate; and nonetheless they are able to receive proportionally to their conrnbution the profit and benefits of their contribution ....-The creditors of a parlncrshlp ot ac.count of this type, whether they be under the name of one person only or of several persons ... in regard to the goods and assets of the partnership or account are to be privileged over any other creditors of individual partners, either under their own or any other name, and in refl'ard to the said things and good the aforementioned creditors are considered co be, and are, in a superior position and earlier in time htronger in nght), concerning their security and privilege. so that they are preferred and ought to be preferred in respect to property and other things of whatever sort, e.xcept for the one who laid claim to his own property or what was once his own.--On accommenda and implicua (partnership in which the prollt is reinvested in goods to be reimported)). Older stipulations of the Oenoese sta-utes regarding the commenda are repeated here with changes that are not of interest in this context, indudin1 the stipulations concerning the privileged right oi the partnership's creditors a.-id socii to the en trusted good.

Conclusion

-

179

arisen whether the partner managing the business (is qui complementum dct [he who gives the "complement''~Dec. R. G. 18---the general partner) has to be considered as its institor. This is reminiscent of the time when originally the parmers who contributed the. capital, and not the general partner, had to be regarded as the entrepreneurs. This is obviously the limited partnership. For these two types of companies, partnership assets exist in the sense stated here. When comparing c. 12 l. IV of these statutes to the old redactions of the statutes (Stat. Perae 207), it is apparent that the chapter in the former contains the further development of beginnings contained in the latter, and on further inspection of cap. 12, there is no doubt that the partnership without joint liability described therein is an outcome of the socieras maris. The chapter that follows provides a treatment of the old unilateral commenda, and it is obvious from the definitions given at the end there that it had turned into an agency based on commission. The old uniform legal institution of the commenda therefore developed in two different directions: in the one direction, where it developed into the societas maris and the limited partnership, and in the other direction, where it developed into the commission agency.10 Since in cap. 12, as we assume, the constitution of a sep· arate partnership fund for both the general partnership and the limited partnership is alike derived from older beginnings of this institution in the commenda, it appears likely, as had been implied as a possibility earlier, that the development of a separate fund for the commenda indeed influenced the development and formation of partnership assets in the case of the general partnership. The statutes of Genoa of 1588/9 have been discussed herefirst, because they clearly depict the differences between the limited part· nership and the general partnership side by side and, second, because these institutions reflect the influence of jurisprudence, in the way the legal stip· ulations contain common-law practices regarding the general partnership,

40. See Lepa in the Zeiuclrri/1 fur Hand,ls-rerlu, vol. 26, pp. 438{. lepa seem. to date back too far the fonnation of the commission agency. One cannot label the old traveling associate a commission agent. He is, as shown earlier, either a person who represented the capital-supplier and i& dependent on him or, in his latet status, an enmpreneur himself who merely uses the investor's capital as a contribution to his business. Ir seems inappropriate to consider the quart,, r,ro/icui as a commission, or at least n seems inconsistent with me views expre.sed by c·ontemporaries, as shown in chapter 2. Contemporaries viewed him as a socrus; he did not cany on business exclusively on the account of someone else. The separate development of the commission agency appears later, but this is not the place to dtseuss this. A clear-cut distinction between the two forms of business does not exist, however.

I80

-

Chapter 6

as described before. This exploration concluded after we had followed up on these institutions in the local statutes up to the point where, on a scienttfic foundation at first, the international development commences and the formation of law was no longer a matter of local customary law. Ir is not the purpose of rhis investigation to explore further how the product of this international development, in tum, was incorporated into the legislation of modern territories.

Conclusion: Possible Significance of the Results for Legal Doctrine If one were to inquire now into the legal-dogmatic and practical significance of the results of the analyses carried out here, one would have to admit that the significance does not lie in the individual findings. This would perhaps be otherwise if the analysis resulted in an answer to a question chat can only be raised, but not answered, here, namely that of the relationship between the institution of"joint hands" (gesamle Hand) and the institutions that served as the basis of the general partnership. This issue has to be raised, for splendid scholars have argued that the institution of "joint hands" was the basis of the general parmership,41 and they did chis so decidedly that indeed the question ought to be posed as follows: In terms of its history and doctrine, is the general partnership based on "joint hands," or on something else? And only then we might ask: What else is it bared on? This question must remain unanswered, for several reasons. First, because the question pertains to terminology, in that the concept of "joint hands," when applied to the relations between creditors and debtors, was not generally limited to the formation of contracts communi manu-but this terminological question pertains to Germanic law and cannot be answered in the context of Romanist law. Bi;t the same applies, regardless of the answer to the previous question, also to a related issue, namely whether that concept applies to those institutions that are considered the predecessors of the general partnership in Italy. The concept of "joint hands'' is a purely Germanic one. But even if in the process of this investigation we have unearthed some clues about the extent to which Germanic legal thought influenced the developments under consideration here or whether these developments were of a different provenance, we cannot jus• tify an attempt to come to a definitive conclusion here without establishing what parallels to it existed on the soil of purely Germanic law. Yet wichout some notion about the extent to which Germanic law is relevant, the relation 41. Gierke. Sohm, and, first, Kunt:ze in the ~ir.schnftft,r Handelsreclu. vol. 6.

Conclusion

-

181

between the institutions explored here and Germanic legal thought pertaining to "joint hands" remains in the dark. And since this issue becomes perti· nent at once when legal-dogmatic issues of this institution are discussed, the discussion must be suspended until similar institutions that developed on the soil of Germanic law have been brought to light and discussed. The passage in the Saxon Mirror (see chap. 3, n. 16) shows that such institutions did indeed exist. This issue is to be addressed in a separate investigation. However, there is a finding in regard to a different issue. From a historical perspective, we cannot discuss the general partnership and the limited partnership as two separate forms of enterprise that rely on the same principle and differ only to an extent. They both have a separate fund, but both institutions arrived at it historically from completely different points of departure, and the capacity to have separate assets is not something that is reserved to these forms of association, or a pertinent characteristic of them, even though it is important. A true characteristic lies in the legal nature of the sociation (Vergesellschaftung), and in that regard the two types of part• nerships are very different. The limited partnership has a very different history from the general partnership. The so-called liability of the limited part· ner can in no way be compared to the liability of the general partner or considered to be an attenuation and limitation of that liability. For according to the historical development, it is completely unjustified to speak of a "liability" of the limited partner. 42 He is not "liable" but participates to the eKtent of his capital contribution in profit and loss of another businessthis is the position of the Italian documents-and he can therefore reclaim his contribution only after the deduction of debt, or he has to make a contribution so that the debts can be covered. In terms of the law of property, the general partnership takes on the collective personality of the socii, whereas in that regard the personality of the limited partners is not affected by the limited partnership. The credit basis is completely different. While the general partnership is an association of partners, the limited partnership has to be construed as a participatory relationship.

42. See also lastig in Endemann's Harulbuc~. vol. I.

APPENDIX

Overview of the Documents

Spain Lex Wisigothornm in Lindenbrog, pp. 1-238 Fuero Luzgo en Larin y Castellano, Madrid 1815 Fueros francos, ed. Helffrich-Clermont, Berlin-Paris 1860 Collecdon de [ueTos municipales y cartas pueblas de los reinos de Castiella, Leon, Corona de Amgon y Navarra-p. D. Tomas Munoz y Romero, Tom. I, Madrid 1847 Nueva Recopilacion deLeyes, Madrid 1745 Fuero Viejo de Castiella, Madrid 1774 Ordenamiento de Leyes de Alcala, Madrid 1774 Ordenanzas de Burgos, Madrid 1647 Ordinacioru y sumari de!s privilegs, consuetuds y bons usos del regnt de Mallorca, Mallorca 1663 Costums de Tortosa in Oliver, El derecho de Cataluna T. IV, Madrid 1881 Cruolat del mar in Pardessus, Collection des lois maritimes Statutes of Barcelona and individual ordinances in Pardessus Las Siete Partidas del sabio Rey don Alfonso Nono per las cuales son deremida.s 'J determinadas las cuestiones y pleytos que en Espana occurnn. Con la glosa del egregio dotor Alfonso Diaz de Montalvo Commentarii Jacobi de Marquitles super usaticis barchinonensibus, 2d ed., Barcelona I 502

183

184

-

Appendix

Gonzali Suarez de Paz, PTaxis ecclesiatica et secularis, Francofurti 1613 Capmany y Monpalan, Memorias historicas sobre la marina, comme,-cio y aTtes de la antigua dudad de Barcelona, Madrid 1779

Southern France Statutes in Pardessus (see above)

Sicily and Southern Italy Statutes in Briinneck, Sivliens mittelalterliche Stadtrechte Constituciones Regni Siciliae lmperatoris Friderici, Folio-Edition "Tabula Amalfitana," ed. Laband, in Zeitschrift f'ii'r Handelsmht, vol. 7 Le ConsMetudini della citt.a di Amalfi, ed. Volpicella, Napoli 1849 Consuetudini della citta di Sorrento, ed. Volpicella, Napoli 1869 Stat. of Trani, Sassari, Ancona in Pardessus

Genoa Fragment of Datta, ed. Desimoni, in Aui de/la Societa Llgure cb storia patria I Bre11e della compagna in Historiae Patriae Monumenta Leg. Municip. Statutes of Pera, ed. Prom is, in Miscellanea di storia l taliana edita per cura della r. deputazione di storia patria T. XI, Torino 1820 Statuti d'Albenga, ed. Valeschi, Albenga 1885 Statuta et Decreta Communis Genuae, Venetiis apud Dominicum Nicolinum 1567 StatutoTUm civilium reipublicae Genuensis libri VI, Oenua 1609

Pisa Bonaini, Statuci inediti della cittil di Pisa

Venice Vi.:lebis lectoT hoc in volumine Statuta Veneta i. f.: stamp. in Venetiis 1528 Novissimum Statutorum et Venetarum Legum Volumen (A. Oryphi), Venetiis 1779 Individual laws in Pardessus, others in Lattes, Della libeTt.a delle banche a Venezia

Appendix

-

185

Milan Uber cansuetudinum Mediolani 1216 in the P. M. The same statutes are edited in Lambertenghi 1869 Statuta Mediolani, Mediolani 1502 Statuta Ducatus MediolaTie11Sis, ed. Carpano, Francofurti 1611

Verona Leges et statuta civiratis Veronae, Vicentiae 1478 Uber civilis urbis Veronae, ed. Bart. Campagnola, Veronae 1728 Statuta domus mercatorum Vtronae

Florence Stat. in Emiliani-Giudici, Sroria dei communi italiani, Firenze 1866 Stat. in Fierli, Della societii chiamata Accomandita 1846 Stat. in Lastig, Zeitschrift fur Handelsrecht, vol. 24

Statura Populi et Communis Florentiae publica auctoritate collecta, castigara et praeposita ao sal. 1415. Friburgi, 3 vols. Tractatus de cessantibus et fugitivis, ed. Fuchs (Programm), Marburg 1865

Other Towns Statutes of Como, Vercelli, Novara, Brescia, Bergamo, Nizza, Moncalieri, lvrea in H.P. M. Leg. Munic. Brescia: Statuti della Mercanzia di Brescia. Brescia 1788 Visso: Statuta communis Vissi, e.d. Santoni. Camerino 1884 Modena: Statuta civiratis Mutinae a. 1337 reformata, in Monumenti di SeoTia patria, Series degIi Statuti I Piacenza: Statuta Varia civitatis Placentiae, Parma 1860, in Monumenta historica ad prowncias Parmae et Placentiae spectantia Ferrara: Statuta urbis Ferrariae. Ferrara 1624 S. Giorgio: Statuta Burgi et Curie Sti Georgii, in Monumenti Legali del Regno Sardo Disp. IV Siena: Statuti de' lanajuoli de! 1292 ss., in Collezione di opere inedite e rare T. I. Bologna 1869 Sinigaglia: Statutmum et Reforrnationum magnif. civic. Senae GaUicae volumen 1584

Rome: Statuten, ed. Camillo Re, Rom 1880

186

-

Appendix

Lodi: Landensium Sr.atuta. Lodi 1586 Statuti wcchi di Lodi, ed. C. Vignati, Milano 1884 Bergamo: Sr.atuti e privilegi del P11rl,ltico e foro della universita de' Mercatanti di Bergamo. Bergamo 1780 Bologna: Libe-r tertius causarum civilium communis Bononiae, printed 1491 Statuta Bononiae 1:1.. 1250 ss., in Monumenti lstorichi pertinenti alle /]rovincie

della Romagna Statuti della honoranda universita de' mercatanti di Bologna a. 1509 Padua: Statuti del Comune di Padova dal sec. 12. all' a. 1288 Massa: Statuta Massae, printed Lucae 159 2 Arezzo: Liber statutorum Aretii, Florence 1580

Italy in General Lex Longobardorum seu capitulare divini et silcratissimi Caroli magni imperataris et Franciae regis ac novellae constitut. dni ]ustiniani imp. p. dnum Nie. Boherii Anschutz, Die Lombarda-Kommenr.are des Ariprand und Albertus. Heidelberg 1855 Petri exceptiones legum Romanmum, in Savigny, Gesch. d. R. R. im M. -A.

Collections of Legal Decisions Rotae Genuae de Mercatura et rebus ad earn pertinentibus Decisiones. Francofuni 1603 Decisiones Rotae Fl.orentinae, ed. Hieron. Magonius, Francofurti 1600 Decisianes Rotae Lucensis, Lucae 1580/1 Decisiones Rotae Ramanae, ed. Veraller

Documents Historiae Patriae Monumenr.a, Chartarum Tom. II Archives de !'Orient latin Vol. I, IL Documents Archivio Veneta T. VI, XII Monument.a spectantia historiam Slavorum MeridiOnalium Vol. I Zagrabiae 1868 Ricardi di Miliadusso Baldiccione de Ca.salberti Pisano, in Arch. Srolico Iral, iano App. Tom. VIII

Ricordanze di Ghido di Filippo di Ghidmie dell' Ante/la e de suoi figliuoli e discendenti, in Archivio Swrico Italiano T. IV

Appendix

-

187

Estratto del episrolario della Repubblica Fiorentina, in Archi11io Storico Italiano, Nova Serie Tom. VI Documents in Bini, I Lucchesi a Venetia Documents in Buchon, No1111e/les Rechn-ches sur la prindpaute frtmfaise de

Moree Documents in Giomale Storico degli Archivi Toscani Tom. I Documents in Passerini, G~ Alberti di Firenze Documents in Peruzzi, Storia del commerdo e dei banchieri di Firenze

Contemporary Literature Baldo de Ubaldis Consilia, Francofurti 1589 Petrus de Ubaldis, De duobus fratribus et aliis sociis (in the Tractatu.s Illus-

trium Jurisconsult.orum) Franciscus de Porcellinis de Padua, De duobis fratribus (in the Tractatus Il-

lustrium ]urisconsult.orum) Angelus de Periglis de Perusio, De societatibus (in the Tractatus Illustrium

Jurisconsultorum) Ansaldi de Ansaldis, Discursus legales de commercio et memuura, Genoa 1688

Note: The listing of sources is not intended to provide a complete bibliography. Rather, its purpose is to give an overview of those documents that were available to me.

Index

accounting capitalist, 29-30, 34 in family household, 86-87 in Florence, 156 and foundation of household, 25-26 actio tributoria, 109 Aegidi, Ludwig Karl, 5nl I agency, 24, 173 commission, 13n38, 64, 66, 77n35, 179 agent, compensation of, 66 Alberti, Leon Battista, 31-32 Alberti family, 95, 141, 151, 153, 156 ledgers of, 106, 111 n69, 160-66 Althoff, Friedrich, 12 Amalfi, commenda in, 72-73 Ancona, commenda in, 72 arbitration, in family versus partnership, 154 area c-ommunis, 54-55 Ane di Calimala, 151-52, 154-56, 160 anisanal associations, 92-93

assets, separation of. in family versus partnership, 154-55 bankers, in Roman law. 59 bankruptcy, and societas, 54 Bar, Karl Ludwig von, Sn I 2 Barbalet, Jack, 3 Baumgarten, Anna, 17 Baumgarten, Emmy, 8, 15-18 Baumgarten, Fritz, 20 Baumganen, Hermann, 5, 9, 15-16 Baumgarten, Ida, 15-16, 21-22 Baumgarten, Otto, 9, 16, 18n50 Bekker, Ernst Immanuel, 4n9 Bendix, Reinhard, 2 Bergamo, liability issues in, 108 Beseler, Georg, 5nll bilateral commenda, 23-24. See also

socieras mans Bologna, liability issues in, I 08 bottega development of, 114-15, 119 tractator in, 146

189

190

-

Index

Bremer, Franz Peter, 5n10 Brentano, Lujo, 11, 32 Brunner, Heinrich, 5nll, 9n26 capitalism, Western modern barriers to, 3 I, 36 features of, 29 rise of, 33-34 capiranew, in COTtStitutum Usus, 130-31 cash fund, in socieras, 54 Cohen, Jere, 36n82 collegantia,65n6, 73n29, 74n32 commenda( s), 63--08 character as partnership, 67 definition of, 65--06 document for, 66nl 0 economic foundations of, 65--06 evolution of, 65---06, 136, 170, 179 geographical area of, 71-75 operation of, 23-24 status of parties in, 67--08 commendacio, 73n29 commendare, 64 commendator, n commercial law formation of, 51-52 history of, 22-27 Goldschmidt on, 6-7 commission agency, I3n38, 64, 66, 77n35, 179

commodare. 64 communities of labor, 26 m Florence, 152 statutes on, 102-23 community for acquisition, 99-101 family household as, 86--87 community of consumption, family household as, 88 community of heirs, continued, 142 community of production, family household as, 88 com/)a€nia di terra, 24-25 in Constitutum Usus, 145--46

See also 1ocieras terrae Consti1utum l..egis. 128 Constitwtum Usus, 127--49 area of, 128--29 un family household, 89 legal principles in, 129 on partnership law, 129--46 on s.ocieras temle. 82 contracts in name of firm, in Florence, 157-59 of partnerships documents of, 123-25 in Florence, 161--02 in Pisa, 147--49 contribution, 95, 166 corpo del/a compagnia, 162--06 corpus socier.atis, 101n43, 166, 171 craft sociat1ons, 26, 92-93 characteristics of, 93-94 and liability, 119-2 I liability in, 119-21 credit and development of liability, 10 I doctrine of usury and, 138 creditors business versus personal, 113 in Consritutum Usus. 132-33 Cremona, liability issues in, 108

dare ad porrandum in compagniam, 135-36 dare ad proficuum mllris, 136-37 death, and partnerships, 153 debt communality of, 99 and development of liability, 101 in Florence, 156-59 joint versus personal, 113 in the name of the firm, 27 in Florence, 157-59 Deininger, Jurgen, 6ni5, 8--9, 9n28, 14, 16 dependents, liability of, 109-10

Index

depositum, 64n3, 73n29 Dernburg, Heinrich, 6nl6, 9nl6 Dibble, Vernon, 2 Digest of Justinian, 58-59 Dilcher, Gerhard, 40 disposition, 95 and relations between socii, 118-19 doctrine of usury, 137-39, 170 documents for commenda, 66nl0 on contracts of partnerships in Florence, 161-62 liability in, 123-25 in Pisa, 147--49 on family communities and communities of labor, 102-2.3 for societas maris, 68 Dove, Richard Wilhelm, 5nl2 dowry, 87, 143, 171

Eck, Ernst, l 4n39 economics, law and, 60-61 Econmn, and Sociery (Weber), dissertation and, 27, 32-36 equaliry, and general partnerships, 147 Erdmannsdorfer, Bernhard, 4n9 factoT, 92 status in family versus partnership, 155 Factor, Regis, 3 Fallenstein, Emily, 18n50 family analogies with partnerships, 154-55 as partnership, 155-56 family community, 85-125 constitution of, 88-89 in Florence, 152 legal foundations of, 88-89 liability in, 98-100 origin and development of, 100--102 obligation to distribute shares of inheritance in, 110-13

-

191

and societas maris, in Constiwtum Usus, 139--45 statutes on, 102-23 family household, 25, 85-91 property law on, 86--88 on shares of members, 89-91 famulus, 92 feudum, 145 firm,23,27, 121-23 functions of, 56 legal literature on, 175-77 name, and liability, 176 and relations between socii, 118 Fischer, Kuno, 4n9 fixed dividend, partnership with, in

Consl'iiutum Usus, 136-37 Florence, 27, 151-67 foenus nauticum, 63, 138. See alw sea loan formal sociation, 25-26 development of, 26 Frank, R. I., 39 Franklin, Benjamin, 31 fraterna compagnia, l 04-7 Frensdorff, Ferdinand, 5, 6n 15, 7, 8n23, 1 I. 13n37

General Economic History (Weber), dissertation and, 28-31 general partnerships charact.eristics of, 53, 121-23 development of, 60, 146-47 legal literature on, 177-81 German equivalents of, 22 law of, 55-57 legal literature on, 171-73 versus limited, 146--47 versussociew, 53-57 Genoa,commendain, 74-75 Genoese Statutes, 177-80

Gierke, Otto, 5nll, 12n35, 88n7, 149n41 Gneist, Rudolf von, Snl 1, 9n26 Goldschmidt, Levin

192

-

Index

comments on Weber's dissertation, 11-12 as Weber's supervisor, 6--8, 52 guilds, in Florence, 151 Heinze, Karl Friedrich Rudolf, 4n9 heirs, continued community of, 142 hentica, 131-33, 135-36 Hinschius, Paul, 9n26 Honigsheim, Paul, l2n35 household, German term, 85nl household communities, 25 characteristics of, 93-94 legal literature on, 174 nonfamily, 91-94 and rise of capitalism, 33-34 implicare,67 industry, 114 and households, 111 wealth from, in Florence, 151-52 inequality, and limited partnershii;s, 146--47 inheritance obligation to distribute shares of, 11~13 records, of Alberti, 164--66 institor, 113 and solidarv liability, 172-74 instrumental rationalization, 31-32 investment, forms of, 138 joint debt, 113-15 joint fund in family household, 86 in socieras mari.s, 70 See also separate fund joint hands concept, 99-100, l~I joint household, 88-89 m Corutitutum Usui, 143 versus family, 100--101 in Florence, l ~ I liability in, 97

joint liability, 23, 83 development of, 14 7 joint property of family household, 86--88 liability of, 98--99 joint Sr.ado, 114 joint venture, 53 Kaelber, Lutz, 1---47 Kalberg, Stephen, 3 Karlowa, Otto, 4n9 Kaster, Dirk, 35 Knies, Karl, 4n9 Kronman, Anthony, 34

Laband, Paul, 57nl, 166-67 Lastig, Gustav, 13, 78, 92nl4, 139, 169 on commenda, 7lnZl, 146 on Aorence, 151-52, 154, 156-57 on partnerships, 51-52 law and economics, ~ l literature of, 169-81 on socieras mari.s, 69-70 See also commercial law liability on basis of joint household, 97 on basis of kinship, 96-97 of dependents, l 09-10 development of, 100--102 documents on, 102-23 in family community, 98--100 in Constitvtum Usus, 141 origin and development of, 100--102 in family versus partnership, 154 in general partnerships, 53, 55 in limited partnerships, 82 in socieras, 54 changes in, 58--60 See aLso Joint liability; solidary liability libel/aria, 145 limited liability, 26-27

Index limited partnerships in Constiiur:um Usus, 134 development of, 80--82, 136,

-

193

in general partnership, 55 to revenge, 96 in societas mans, 77-78

146--47, 17S--81 versus general, 146-47 Gcnnan equivalents of, 22 legal 1itcrature on, 169-71 societas ten"ae and, 78--80 Lombard Laws on family household, 87--S9 on maritime trade, 64-65 on relations between socii, 116-17 Lotz, Walter, 9

Love, John, 2 Malaga, charter of, 59~ mandate, presumption of, and solidary liabiliry, 172-74 maritime law partnerships of, 63--S3 law of property of, 75-78 in Pisa, 127-49 maritime trade features of, 64 needs of, 63-{)8 Marra, Realino, 3, 4n9, 5, 6nl6, 7n21, 12n34,26n69,35 Mediterranean trade, 63 Meitzen, August, 6, 14 men, as socii, 94 military service, status of property acquired in, 103 modem law, of general partnership, 55-57 Mommsen, Karl, 9 Mommsen, Theodor, 5-6, 9, 11 movable property, personal, in Florence, 163 name, joint. See firm obligations to distribute shares, 110-13

Pappenheim, Max, 11 participatio, 71n21

participation and comm.enda, 136 and limited partnership, 181 partnership( s) analogies with families, 154-55 of brothers, in Constitutum Usus, 142 characteristics of, 121-23 documents of, 123-25 in Pisa, 147-49 as family, 155-56 of father and son, elements of, 141 with fixed dividend, in Constitutum Usus, 136-37 law of, in Pisa, 127-49 law of property of in Florence, 156-59 of maritime law, 75-78 legal literature on, 169-75 of maritime law, 63--aJ types of, 25n68 without separate fund, in Constiiutum Usus, 135-36 partnership assets in Constitutum Usus, 132-34 in Florence, 159 in general partnerships, 55-56 legal literature on, 179 in socieras, 54 in societa.s maris, 70 partnership debt, in Florence, 156-59 partnership fund, of maritime partnerships, 75 parronus natlis, 65 Pernice, Alfred, 5 personal debt, 113-15 in Consliruiwn Usus, 132 versus debt of community, 119

194

-

Index

in Florence, 156-59 personal liability, in family communiry, 99-100 Peruzzi family, 141, 151, 153, 156, 159 ledgers of, l 06, 111 n69, 160---66 Piacenza, 13 l liability issues in, 108 limired pannerships in, 80--82 Pisa, 27, 127--49 presumption of mandate, and solidary liability, 172-7 4 profit in Corutiiuium Usus, 130 legal literature on, 175 in pannerships with fuced divident, 1.36-37 and relations between socii, 117 in socieras maris, 70 property, changes in status of, 95 property law development of, 93 on family household, 86--88 on shares of members, 89-91 of maritime partnerships, 75-78 of partnerships, in Aorence, 156-57 of socieras maris, in Consci!U!Um U.su.s, 131-32 The Protesrant E rhic and the Spirit of Capitalism (Weber), dissertation and,27,31-32 Pryor, John, 23-24 putting-out system, 146 rationalization, type8 of, 31-32 real property exclusion from household communities, 94 as outside partnership, in Florence, 162-63 Regel.sberger, Ferdinand, 5nl 2 registration, 15(>-57 documentation of, 153 rent of capitol, 147

on capital, 136 of labor, 147 perpetual, 138 taboos on, 85 renunciation, right of, 142 revenge, and obligation, 96 Rhodian laws, 63, 80 Riesebrodt, Manin, 2 right of renunciation, 142 risk, 24 incommenda,67 Lombard Laws on, 64-65 in socieras maris, 69 roga communis, 73n29 rogadia, 73n29 Romanist law on Consciiutum Usus, 134 household in, 25-26 on joint hability, 175 on solidary liability, l 72- 7 3 Weber and, 13, 13n35, 14 Roman law on family household, 86 household in, 25 on maritime trade, 63 and Pisa, l 27 of socieras, 54 Rora of Genoa, 177-80 Roth, Guenther, 3, 4n7, 7n21, 13n38, 14n39, I 7n48-49, 19, 21, 21n60, 22n62,38,38n88 Sardinia, commenda in, 72 Scaff, Larry, 2 Schluchtet, Wolfgang, 2, 29, 31, 35-36 Schmoller, Gustav, 11-12, 13n38 Schroder, Richard, 5n 12, U7 Schulze, Hermann Johann Friednch, 4n9 Schulze-Gavemitz, Gerhart von, Z2n63 sea loan, 137-38. See also foenus nauticum separate assets, in Florence, 162--63

Index separate fund, 23, 27 in Consr:itutum Usus, 132-34 development of, 76-77. l 15-19 legal literature on, 171-72, 179 pannership without, in Constitutum Usus, 135-36 terms for, 166 servants, legal status of, 88--89, l 13 shares distribution of in Florence, 164-66 obligation to, 110-13 in family household, 89-91 in family versus pannership, 154-55 Sica, Alan, 3 Sicily, commerula in, 72 Silberschmidt, Willy on commenda, 68--69 on evolution of partnerships, 24, 136 and Goldschmidt, 7, 12 on origin of societas maris, 139-40

-

195

societas-opem, 13 7 socier