ownership with partnership by saying, when it distinguished the action comuni dividundo from action pro socio, that "comuni dividundo judicium ideo necessarium fuit, quod pro socio actio magis ad personales invicen praestationes pertinet quam ad communium rerum divisionem." (Dig. Lib. X, tit. III.) Notwithstanding this plausible idea of the Roman legislator, diverging opinions were not lacking. Roman jurists, according to an author, had seriously advanced a new but contrary idea "that co-ownership was nothing more but a rudimentary form of the contract of partnership, an incidental association without the solemnities of an agreement." (3 Manresa, 374.) This opinion may be perhaps accounted for by the rigidity and formalism of the Roman law: in Rome property was not conceived but subject to a state of absolute individualism, and, in its consequence, agreement as a source of co-ownership was not admitted. Whether this view is true or not, the fact is that subsequent legislations have gone to the same direction and on the same road. First of these was the Siete Partidas of Spain, promulgated in 1343, which, as has been stated in a previous chapter, had laid confusion in the use of the terms "co-owners" and "partners" and in the application of the provisions regarding partnership to co-ownership. (Part. 5, Tit. 10, law 11.) The second piece of legislation, worthy of mention, was the Code Napoleon, promulgated in March 21, 1804, (Rose, Am. Law Rev. XL, 851-3), in which partnership is markedly and greatly confused with co-ownership (see Arts. 1837-39); and, lastly, the most recent enactment is the Code of Holland which, adopting the Code Napoleon, provides that community property are those belonging in a collective manner to a juridical person. (Art. 582; see also Art. 628.) The writer confesses that he is not very positive in explaining why the Code Napoleon had been inspired by this theory. Considering that this Code had for sources (1) the customs of Paris; (2) the Justinian's legislation, in Bk. III, Tit. 27 of which co-ownership was treated as a quasi-contract and not as a partnership; and (3) the commentaries of Domat and Pothier, the latter having sustained that co-ownership was not always an involuntary and incidental partnership, but a quasi-contract of negotiorum gestio (see page 15, supra); and considering, further, that the said Code had been drafted by four learned Frenc men, one being "profoundly versed in the Roman law," and all of them are mature men and conservatives (XL Am. Law Rev. 845-51), one is naturally driven to a perplexing situation, and forced to conclude that the four French legislators had been, perhaps, influenced by the customs, if any, prevailing in Paris at the time of codification of the French laws, or that they have been inspired by a different criterion progressive in character. Hence, this theory may be called the "French Theory." Not only when the Justinian's Institutes governed Rome, nor in Spain when the Partidas were in force, or in France at the time of the enactment of the Code Napoleon, but also in ipsissima Hispania after the publication of the present Civil Code,— the same opinion that co-ownership is partnership had been urged. With this view Mr. Otero y Valentin in his treatise of "La Persona Social," concurs by saying: “If partnership, as it is logical, enjoys the juridical personality, the patrimony of the latter must have the concept of co-ownership. 'Colectiva' is also an asso ciation by shares, just as is a scientific partnership or a public corporation (corporación oficial), and nevertheless there is nothing farther in them to exist co-ownership." (Otero y Valentin, La Persona Social, pages 312, 315.) The same "blunder" was committed in the Philippines, as will be noticed in the course of the discussion of this thesis, and the writer fears that it may still be committed by Filipino lawyers in open twentieth century. The idea, however, is no longer a debatable question. Modern conceptions had already discarded and abandoned it as a groundless view. For example, the Italian author, Ricci, says: "Co-ownership is nothing more but a material condition of things as to its manner of being, condition that is also found in partnership; while the latter, not only results from a condition or manner of being of the things, but it also possesses a life and an organism that are found in partnership only. Coownership, considered as such, may be said to be a condition of inertness and immobility, when it is created by the fact that the thing belongs to several persons, there being yet no division made among them; while partnership is a means and life when it constantly tends to accomplish an object which consists in profits. (9 Curso Teorico-Practico de Dch. Civil, page 2 et seq.) More explicit is the expression given by Sanchez Roman when he said that “Coownership is an idea which results from a condition of the property or things with relation to plurality of persons who have rights over them; while partnership has only for true basis the will of the partners in order to create partnership; co-ownership, therefore, being created upon the condition of the subject-matter and the contract of partnership arising from the will of the contracting parties." (4 S. R. 520.) Even French authors, such as Pothier, Treilard and Douvergier, have condemned the same idea found also in the Code Napoleon. Treilard said: co-ownership is a species of partnership between persons united by any act independent of the will, such as in co-inheritance; while Douvergier said that co-ownership is created by blood ties, and partnership is established for the only object of profits. Pothier is more clear when he said that co-ownership was not always an involuntary and incidental partnership, because partnership is formed in all cases by means of an express agreement. (3 Manresa, 367.) The above were the antagonistic and incongruent views in foreign jurisdictions. The Philippine view, on the other hand, did not differ therefrom, but on the contrary they both keep in fine parallelism. Thus, in the case of Gallemit vs. Tabiliran (20 Phil. 241), the litigants verbally agreed to purchase a piece of land, each party was to pay by halves and the land to be divided also by halves. After the purchase, the de fendant, a piece justice, held the land alone and collected the fruits solely for his own benefit. After the plaintiff's demand to divide the land was refused, an action for this purpose was brought, the attorney for the plaintiff alleging that said property was purchased "under a verbal civil contract of partnership." The attorney for the defense, on the other hand, contended that in order that a demand for the division of a realty acquired jointly and undividedly by two or more parties, it is necessary to show the existence of a contract of partnership. The issue brought for the decision of the court being whether under the facts of this case a contract of partnership should be first shown in order to prosper the action for the division of the thing held in commonthe Supreme Court held in the negative, saying that "the contract entered into in this case relates to the acquisition of the land by the two purchasers, not for the purpose of undertaking any business, nor for its cultivation in partnership, but solely to divide it equally between themselves." Two views may be gathered from this case: the first is that advocated by the lawyers for both parties that co-ownership is a partnership, and the second is that elaborated in the opinion of the court that co-ownership is not a partnership, because the co-ownership relation (as to the land in controversy) was created by the litigants, "not for the purpose of undertaking any business, nor for its cultivation in partnership”— i. e., not for profits. The first view followed that suggested by Roman jurists, Siete Partidas, Code Napoleon, Dutch Code and Otero y Valentin; while thesecond concurred with the modern view defended by Pothier, Ricci, Scaevola, Sanchez Roman and Manresa. (3 Manresa, 364 et seq.; 4 S. R. 520; 9 Ricci, 2 et seq.; 7 Scaevola 105 et seq.) For the view of the Supreme Court that co-ownership is not a quasi-contract, see the case of Smith et al., vs. Lopez et al., 5 Phil. 81. III. Third (or Modern) Theory: Co-Ownership, an Independent Juridical Institution. With progress and civilization of the time, a third theory, neutralizing the first two views, was born. It strikes a happy mean between the first and second, and while admitting that from quasi-contract may spring the life of co-ownership, and recognizing that partnership may imply co-ownership, yet co-ownership has not either the character of a partnership itself or of a quasi-contract. According to this theory, therefore, co-ownership is neither a quasi-contract nor even a partnership; but it is an entirely different, separate and independent legal institution. This was the view maintained by modern authors, among whom are Vitalevi, Ricci, Scaevola, Sanchez Roman and Manresa, and by court decisions, Spanish and Filipino; hence, this theory may be designated as the "Modern Theory." It may be observed that this theory is the best in point of reason, principle and justice, preserving as it does the independent and separate existences of the three legal institutions of quasi-contract, partnership and co-ownership. It may also be observed from the exposition of the different views that the second false theory has been greatly advocated. If its constant practice in the future and that misconception and misunderstanding on the law of co-ownership would not be checked on time, the rights of a party plaintiff or defendant entrusting his case to a lawyer who has a confused and vague idea between the laws of partnership and co-ownership, would be at a stake, and due justice would not be given him. Hence this paper is mainly written for this purpose. (To be Continued) PHILIPPINE LAW JOURNAL Published monthly, August to April inclusive, during the academic year, by the alumni and students of the College of Law, University of the Philippines. FACULTY ADVISORY COMMITTEE Jorge Bocobo, Dean of the College of Law. Quintin Paredes, Professorial Lecturer on Criminal Law. Enrique Altavas, Professorial Lecturer on Land Registration and Mortgages. DECEMBER, NINETEEN HUNDRED AND NINETEEN NOTE AND COMMENT FRANCISCO VENTURA, Senior.. 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