Contratti socialmente tipici e clausole pattizi nell’esperienza giuridica romana. L’exemplum della societas venaliciaria

This essay analyzes the topic of ‘socially typical’ contracts and covenant clauses in Roman legal history, with particular regard to the societas venaliciaria, which was founded by slave traders. In particular it is questioned whether sufficiently typical traits that defined this type of company as ‘special’ existed or not. The study is conducted starting from the profile of the external relevance of the corporate contract, with particular reference to aedilician actions taken against the ‘majority’ venaliciarii shareholders (or holders of shares equal to those of their partners), about which is reported in D. 21, 1, 44, 1 (Paul 2 ad ed. aed. cur.). Starting from the analysis of this text, we examine the theories relating to the external relevance of the contract of societas venaliciaria and of the mutual praepositio pact of the individual shareholders who, in the conclusion of contracts with third parties, acted in the interest of all the partners. Then we argue about the use of pacta adiecta ex continenti as an instrument for altering the typical contract with regard to the voluntas contrahentium, concluding that the use of these clauses (as functional to fraudulent maneuvers) was obstacled or discouraged by the legal system with reference to the societas venaliciaria, which, with the exception of the possible but frequent pact clause that provided mutual representation for single shareholders, was lacking of relevant distinctive features.