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Incomplete Organizations: Legal Entities and Asset Partitioning in Roman Commerce

36 Pages Posted: 9 Oct 2014 Last revised: 1 Nov 2014

Henry Hansmann

Yale Law School; European Corporate Governance Institute (ECGI)

Reinier Kraakman

Harvard Law School; European Corporate Governance Institute

Richard Squire

Fordham University School of Law

Date Written: October 3, 2014

Abstract

In this chapter we analyze ancient Rome’s law of business entities from the perspective of asset partitioning, by which we mean the delimiting of creditor collection rights based on the distinction between business assets and personal assets. Asset partitioning, which is an essential legal attribute of modern business forms such as the partnership and the business corporation, reduces borrowing costs by simplifying credit-risk assessment and expediting insolvency proceedings. We find that ancient Roman business arrangements, such as the societas (very loosely, “partnership”) and the slave-run business endowed by the slaveowner with a peculium (a sum of capital), did not give business creditors the first claim to business assets, making these forms of organization non-entities according to the criterion of asset partitioning. It appears that the only true legal entity used to form profit-seeking firms was the societas publicanorum, which roughly resembled the modern limited partnership. But use of that form was generally limited to firms providing services contracted out by the state. Moreover, the societas publicanorum was largely a creature of the Republic, and was largely abandoned during the Empire. Although Rome had a complex economy and sophisticated commercial law, and was familiar with most of the types of asset partitioning we see in modern legal systems, it ultimately failed to develop legal entities for general use in commerce. Apparent reasons include the Roman aristocracy’s disparagement of commerce, the emperors’ wariness of strong organizations outside the state, and the society’s continuing reliance on the family -- a durable and complex legal entity in its own right -- to handle many of the needs of commerce.

Keywords: asset partitioning, entity shielding, limited liability, legal history, Ancient Rome, business organizations, corporations

JEL Classification: K22, N80

Suggested Citation

Hansmann, Henry and Kraakman, Reinier and Squire, Richard, Incomplete Organizations: Legal Entities and Asset Partitioning in Roman Commerce (October 3, 2014). European Corporate Governance Institute (ECGI) - Law Working Paper No. 271/2014; Yale Law & Economics Research Paper No. 511. Available at SSRN: https://ssrn.com/abstract=2506334 or http://dx.doi.org/10.2139/ssrn.2506334

Henry Hansmann

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4966 (Phone)

European Corporate Governance Institute (ECGI)

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

HOME PAGE: http://www.ecgi.org

Reinier Kraakman

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
617-496-3586 (Phone)
617-496-6118 (Fax)

European Corporate Governance Institute ( email )

c/o ECARES ULB CP 114
B-1050 Brussels
Belgium

Richard Squire (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States
212-964-1584 (Phone)

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