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Review

Author(s): Hilliard A. Gardiner


Review by: Hilliard A. Gardiner
Source: The American Journal of Comparative Law, Vol. 19, No. 4 (Autumn, 1971), pp. 787-
789
Published by: American Society of Comparative Law
Stable URL: http://www.jstor.org/stable/839524
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1971] BOOK REVIEWS 787

BUSINESS ORGANIZATION

ENKLA BOLAG AND PARTNERSHIPS. A COMPARISON OF THE STATUTORY


BASIS OF PARTNERSHIP LAW IN SWEDEN AND THE UNITED STATES.
By K. R. Olson. Stockholm: Almqvist and Wiksell, 1969. Pp. 137.

Reviewed by Hilliard A. Gardiner*

A short, incisive study of this type does a lot to further under-


standings in the field of comparative law. The author's aim is to
stimulate discussion and change in the law governing Sweden's enkelt
bolag. This is a contractual arrangement not unlike that known in
American jurisprudence, although there are clearly variations. These
are spelled out by the author in some detail in the course of his
comparative analysis. The five chapters treat with, among other
things, the nature of the firm in Swedish and American settings, the
relationship between the partners, their property rights, the rights
and obligations of the partners to third persons, and the process of dis-
solution and winding up. Both American and Swedish judicial pro-
cesses are introductorily discussed.
Both enkelt bolag and partnership share a common historical par-
entage, the Roman societas and the Italian merchant structure of the
16th century. While sharing of profits is an essential element of the
partnership structure, however, it is not necessary for the presence of
either a societas or an enkelt bolag relation. Roman theory has been
extended to create contractual obligation on benefited parties in con-
temporary arrangements, nevertheless. The prototype of the Uniform
Partnership Act partnership first appeared in the law merchant of
England and became reasonably well entrenched by the last part of
the eighteenth century, it might be noted. While legal scholars have
helped to formulate the firm relationship in Sweden, the American
judiciary has shaped the partnership form, the role of academe being
limited to commentary.

Both Swedish and American legal systems have endeavored to de-


fine the firm relationship by statutory interpretation and by distin-
guishing it from other legal, economic, and social relationships. Unlike
the partnership which may be required by the law of certain states to
comply with fictitious name or trade name statutes in order to file suit
or enforce a contract, the enkelt bolag is free from any registration
statutes. A striking similarity in the statutes as to statutory form and
matters of substantive law exists, on the other hand; absent agreement,
certain statutory presumptions relating to the division of profits and
losses, the admission of new partners, and the partner's obligation to
compensate for loss arising through his negligence in the firm's af-
fairs come into play. Each statute additionally stresses the import-
ance of the partners' mutual trust and confidence (upon which their
business relationship to one another is grounded). Both Sweden and

* The City University of New York.

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788 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 19

the United States require partners to account and do not permit a


partner, absent agreement, to receive remuneration for services per-
formed on the firms' behalf.
In the realm of property rights, there is a paucity of specific codi-
fication, case law, and legal writing on the subject of Sweden's enkelt
bolag. The author advocates legislation that bears precisely upon the
property rights of the partners and the modes of determining same.
"Firm property" as applied to enkelt bolag connotes all property used
for the firm goal, regardless of whether such property is owned indi-
vidually, jointly, or in common. Applied to American partnership,
the term partnership property does not include either that property
used in the firm's business which is a partner's individual or personal
property or the property right of a partner to participate in the firm's
management. Both legal systems start from the same premise that
these types are to be determined by the partners, however.
On the issue of the partner's power to cohtractually bind his co-
partners to third persons, the Swedish statute provides that "a con-
tract concluded on behalf of or under the name of the partners where
reference is to the partners jointly, neither binds a partner nor gives
him rights under it if he has not participated in the contract." The
UPA, on the other hand7 embodies a much broader power in each
partner to bind his co-partners even though they have not "partic-
pated" in the contract. Though no complete merger occurs, there is a
convergence of these third person liability concepts toward a common
center.
In both countries, the process of extinguishing the firm is similar.
There is a dissolution, a winding up of the firm's affairs, a distribu-
tion to creditors and partners, and a formal termination. Dissolution
is basically similar especially since the broad language of the Uni-
form Partnership Act allows that "whenever other circumstances ren-
der a dissolution equitable, liquidation of the enkelt bolag may be
conducted by all the partners or by one or more court appointed liqui-
dators." A partnership, on the other hand, can be "wound up" only
by those partners who have not wrongfully dissolved the firm or by a
court appointed receiver. In Sweden a liquidator will be appointed
when it is "probable that liquidation is being unreasonably delayed or
where it is being conducted in such a manner as to jeopardize a part-
ner's rights." The enkelt bolag statute requires that firm property be
converted into cash as soon as possible without causing "obvious
harm" whereas the Uniform Partnership Act merely "permits" a part-
ner to demand such a conversion, which the court may in its discre-
tion grant or deny.
There are four appendices as well as a preface and introduction to
this book; the appended materials include an index of Swedish cases,
an index of American cases, a list of states (and dates) which have
adopted the Uniform Partnership Act (and those which have not), and
two tables treating with sole proprietorships, partnerships and corpo-
rations in terms of number, receipt, deductions, and profit between
1939 and 1964, and big industry for 1964 (U.S.), based on filed tax

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1971] BOOK REVIEWS 789

returns. This is a study of some technical content that the general-


ist may find tedious but that the specialist and generalist both require
for certain knowledge.

COLLECTIONS, FESTSCHRIFTEN, ETC.

GUTACHTEN ZUM INTERNATIONALEN UND AUSLANDISCHEN PRIVATRECHT,


1967-1968. M. Ferid - G. Kegel - K. Zweigert (eds.). Materialien
zum Auslandischen und Internationalen Privatrecht, Vol. 30. Max-
Planck-Institut fur Auslandisches und Internationales Privatrecht.
Published under the auspices of the Deutscher Rat fur Internation-
ales Privatrecht. Berlin: de Gruyter; Tiubingen: J.C.B.Mohr,
1970. Pp. viii, 996.

Reviewed by Ignaz Seidl-Hohenveldern*

This is the second volume of a very valuable German publication.


It aims to inform the wider public of a scientific activity of German
Institutes of Comparative Law and of Private International Law,
which had hitherto not been accessible. Upon request of German
law courts these Institutes submit to the court opinions on points of
foreign law and of conflict of laws. Hitherto these opinions were
merely joined to the files of the particular case. Sometimes the deci-
sion of the court referred to the opinion of an institute. This merely
served to whet the appetite of the reader who remained ignorant of
the content of the opinion. The present volume contains eighty-four
opinions of this type covering a very wide field of topics such as con-
tract, talk, family law, infants, inheritance, and recognition of foreign
judgments. The opinions deal with the law of many foreign states.
Thirteen of the reported opinions concern the law of the United States
of U.S.-State Law.

CRIMINAL LAW

VAN DER KEESSEL'S PRAELECTIONES AD Jus CRIMINALE. Latin text


edited and translated into English by B. Beinart and P. van Warmelo.
Cape Town/Wynberg/Johannesburg: Juta & Co. Ltd., 1969. Pp. 517.

Reviewed by M. Andre Rabie*

South African criminal law has its origins in Roman-Dutch law,


which is an amalgamation of Roman law and Dutch law which oc-

* Professor of Law, University of Cologne.

* Senior lecturer, Faculty of Law, University of South Africa, Pretoria,


South Africa.

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