f risk there is no partnership';[3] and Paul de Castro says, 'A
partnership when the gain is shared, but not the loss, is not to be
permitted.'[4] 'The legitimacy,' says Brants, 'of the contract of
_commenda_ always rested upon the same principle; capital could not be
productive except for him who worked it himself, or who caused it
to be worked on his own responsibility. This latter condition was
realised in _commenda_.'[5]

[Footnote 1: _Greg. Decr._, iv. 19, 7.]

[Footnote 2: II. ii. 78, 2, ad. 5.]

[Footnote 3: Brants, _op. cit._, p. 167.]

[Footnote 4: _Consilia_, ii. 55; also Ambrosius de Vignate, _De
Usuris_, i. 62; Biel, _Op. cit._, IV. xv. 11.]

[Footnote 5: _Op. cit._, p. 172.]

Although the contract of partnership was fully recognised by the
scholastics, it was not very scientifically treated, nor were the
different species of the contract systematically classified. The only
classification adopted was to divide contracts of partnership into
two kinds--those where both parties contributed labour to a joint
enterprise, and those where one party contributed labour and the other
party money. The former gave no difficulty, because the justice of the
remuneration of labour was admitted; but, while the latter was no
less fully recognised, cases of it were subjected to careful scrutiny,
because it was feared that usurious contracts might be concealed under
the appearance of a partnership.[1] The question which occupied the
greatest space in the treatises on the subject was the share in which
the profits should be divided between the parties. The only rule which
could be laid down, in the absence of an express contract, was that
the parties should be remunerated in proportion to the services which
they contributed--a rule the application of which must have been
attended with enormous difficulties. Laurentius de Rodulphis insists
that equality must be observed;[2] and Angelus de Periglis de Perusio,
the first monographist on the subject, does not throw much more light
on the question. The rule as stated by this last writer is that in the
first place the person contributing money must be repaid a sum equal
to what he put in, and the person contributing labour must be paid
a sum equal to the value of his labour, and that whatever surplus
remains must be divided between the two parties equally.[3] The
question of the shares in which the profits should be distributed was
not one, however, that frequently arose in pr