equally.[3] The question of the shares in which the profits should be distributed was not one, however, that frequently arose in practice, 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 the University of Bologna, but no formal decision was pronounced, and, had it not been for the reaction following the Reformation, the trinus contractus would probably have gained general acceptance.  As it was, it was condemned by a provincial synod at Milan in 1565, and by Sixtus V. in 1585.[2]