Abstract

T h e C o m m e n d a C o n t r a c t in t h e M i d d l e A g e s
Summary
The author of this article deals with the commenda contract in the Middle Ages. First of all he characterized the most important features of the commenda contract in Italy, because in this country it appeared already in the 10th century. One kind of the commenda contract was one-sided. The contract of this kind consisted in an agreement, in accordance with which one party invested some capital and the other contributed his enterprise. The liability of the partner who invested capital was limited only to its amount. Differently from the modern continental Kommanditgesellschaft or société en accommandite, in the one-sided contract the active partner was not liable for possible losses. This feature of the contract was connected with the fact that commenda was made for a single trade expedition, in which the risk of loss concerned the invested capital only. In the mutual commenda the partner who put into commenda the enterprise made his own material contribution which enlarged his share in the profits.

The commenda spread subsequently throughout Europe. This phenomenon was supported by the general development of the lex mercatoria i.e. common merchants law, whose basic provisions were widely accepted everywhere, from Iberian Peninsula to Scandinavia. The commenda contract was popular also outside Europe, especially in the vast Islamic areas. Commenda was called there mudaraba. Similarly to Christians in Europe, Muslems used precise and, to some extent, standardized collection of legal rules concerning trade, including different kinds of companies. Even local rulers in south-eastern Asia who converted to Islam promoted Islamic trade law including mudaraba.

Because of the great popularity of the commenda contract in the Middle Ages, since the middle of 19th century discussions have been conducted on the origins of this contract. It is unquestionable that commenda was already well-known in Mesopotamic societies in the times of Hammurabi. However it is not clear how commenda entered the medieval European lex mercatoria. Various scholars connect the beginnings of medieval commenda with Jewish, Islamic or Byzantine law systems. The author of this article notices that at present the arguments for Arabic beginnings of the commenda contract prevail. It is not surprising, taking into consideration that many inventions and ideas were handed down to the medieval Europe just by the Arabs.