actice, because it was
the almost universal custom for the partners to make this a term of
their original contract. Within fairly wide limits it was possible
to arrange for the division of the profits in unequal shares--say
two-thirds and one-third. The shares of gain and loss must, however,
be the same; one party could not reap two-thirds of the profit and
bear only one-third of the loss; but it might be contracted that, when
the loss was deducted from the gain, one party might have two-thirds
of the balance, and the other one-third.[4] In no case, of course,
could the party contributing the money stipulate that his principal
should in all cases be returned, because that was a _mutuum_. The
party contributing the labour might validly contract that he should
be paid for his labour in any case, but, if this was so, the contract
ceased to be a _societas_ and became a _locatio operarum_, or ordinary
contract of work for wages. In all cases, common participation in the
gains and losses of the enterprise was an essential feature of the
contract of partnership.[5]

[Footnote 1: _Summa Astesana_, iii. 12.]

[Footnote 2: _De Usuris_, i. 19.]

[Footnote 3: _De Societatibus_, i. 130.]

[Footnote 4: _De Societatibus_, i. 130.]

[Footnote 5: _Ibid._]

Before concluding the subject of partnership, we must make reference
to the _trinus contractus_, which caused much discussion and great
difficulty. As we have seen, a contract of partnership was good so
long as the person contributing money did not contract that he should
receive his original money back in all circumstances. A contract of
insurance was equally justifiable. There was no doubt that A might
enter into partnership with B; he could further insure himself with C
against the loss of his capital, and with D against damage caused
by fluctuations in the rate of profits. Why, then, should he not
simultaneously enter into all three contracts with B? If he did so, he
was still B's partner, but at the same time he was protected against
the loss of his principal and a fair return upon it--in other words,
he was a partner, protected against the risks of the enterprise. The
legitimacy of such a contract--the _trinus contractus_, as it was
called--was maintained by Carletus in the _Summa Angelica_, which was
published about 1476, and by Biel.[1] Early in the sixteenth century
Eck, a young professor at Ingolstadt, brought the question of the
legitimacy of this contract before th