Mod. Compensatio est debiti et crediti inter se contributio.-1. 1, D. h. t. (de comp. 16, 2).' The compensatio does not arise of itself, i.e., already in consequence of the coexistence of both claimseach claim, the rather, independently remains intact— but always first by effect being given to that coexistence whether it be that the parties by agreement set both claims against one another (agreement for compensatio, or for settlement of accounts), or that the debtor upon whom the claim is made relies upon his counter-claim. Pomp.: Ideo compensatio necessaria est, quia interest nostra potius non solvere, quam solutum repetere.-1. 3 eod.a 2 a Sce Haynes, 'Outlines of Ulp. Etiam quod natura debetur, venit in Equity' (5th compensationem.—1. 6 eod.3 ed.), p. 104. 30. Gai. iv. (2) In the older Law such reliance (right of compensatio) of the defendant upon his claim against the plaintiff was admissible only in the bonae fidei iudicia-in respect of which the judge already had ex officio to take into account possible counterclaims and here also it was at first only enter- Iust. iv. 6. 28, tained if the claims made available by way of 63. compensatio had arisen 'ex eadem causa,' that is, from the same obligatory relation. In the stricti iuris iudicia, on the other hand, the defendant could indeed make good his counter-claim by means of exceptio doli, but the result was then not compen- § 28. satio at the outset, but dismissal of the plaintiff's claim in case the judge, upon proof being afforded of the counter-claim, found the exceptio doli established. 1 Set-off is the mutual balancing of a debt and a claim. 2 Therefore set-off is necessary, because it is to our advantage rather not to pay than to reclaim what has been paid. That also which is owing by Natural Law enters into set-off. C BOOK III. Pt. 1. Ch. II. a Gai. iv. 35. Iul. Unusquisque creditorem suum eundemque debitorem petentem summovet, si paratus est compensare.-1. 2 eod.' a Besides this, the compensatio was recognised as an independent and peculiar right in the actions of the 'argentarius' and of the bonorum emptor,' " for which there existed the legal precept of 'cum compensatione -cum deductione agere.' Gai. iv. §§ 64-65: Alia causa est illius actionis qua argentarius experitur: nam is cogitur cum compensatione agere et ea compensatio verbis formulae exprimitur, adeo quidem ut ab initio compensatione facta minus intendat sibi dari oportere ecce enim si sestertium X milia debeat Titio, atque ei xx debeantur, sic intendit : SI PARET TITIVM SIBI X MILIA DARE OPORTERE AMPLIVS QVAM IPSE TITIO DEBET. § Item bonorum 1 Every one repels his creditor who is at the same time his debtor, when he sues, if he is prepared to make a counter-claim. plus nummo uno intendat argentarius, causa cadat In further development, compensatio was allowed also in the stricti iuris iudicia-indeed, at first in the actiones with intentio incerti-in such way that the judge, when a doli exceptio was pleaded, was held em 1 The case is different in respect of that action employed by a banker, for he is obliged to sue cum compensatione (i.e., to embrace set-off), and this is expressed by the words of the formula. And so, making the set-off to begin with, the banker alleges in his statement of claim that the reduced sum ought to be paid to him. Thus, suppose he owes Tit. 10,000 sesterces, and Tit. owes him 20,000, he words his claim thus: 'If it appear that Tit. ought to pay him 10,000 sesterces more than he himself owes to Tit.' § Again, the purchaser of a bankrupt's estate ought to sue cum deductione (i.e., to take in the rebate), that is, for his opponent to be condemned for such balance as remains after deducting the sum which is in turn due to him (by the plaintiff) on the part of the fraudulent debtor. But between the set-off that is pleaded against a banker and the rebate which is debited to the purchaser of a bankrupt's estate, the difference is such that, in set-off, only what is of the same class and character is taken into account; as, for example, money is set off against money, wheat against wheat, wine against wine, to such an extent that some think wine cannot in all cases be set off against wine, nor wheat against wheat, but only when they are of the same character and quality. But that also may be made matter of deduction which is not of the same class; therefore, if the purchaser of a bankrupt's estate sue for money, and himself in turn owe corn or wine, he sues for the balance after deduction of the value thereof. § Moreover, the amount of a set-off is stated in the claim; the result of which is that, if the banker on making his set-off claim too much by a single sesterce, the case breaks down, and he therefore loses the cause. But a deduction is placed in the condemnatio, where no danger attends too great a claim, at least when the plaintiff is the purchaser of a bankrupt's estate, who, although he sues for a liquidated sum, frames his condemnatio for an indeterminate one. Ꮓ Ꮓ BOOK III. Pt. 1. Ch. 11. Pt. I. Ch. II. 22 pr. BOOK III powered to deduct from the claim sued for the concurrent amount of the counter-claim, and to give a Cf. D. 44, 1, judgment against the defendant for the residue." This view was confirmed and made law by a rescript of Marcus Aurelius, since which the right of compensatio was recognised in all claims-even 'ex dispari causa' -as quite universal. By Justinian, compensatio was finally declared to be allowable also in respect of in rem actiones, but on the other hand-so as to prevent delay in procedure-the necessity was imposed of every claim laid to compensatio being made provable. But comp. C. 4, 34, II. This, it is true, is contested and doubtful. Sed et in strictis iudiciis ex rescripto D. Marci opposita doli mali exceptione compensatio inducebatur. Sed nostra constitutio eas compensationes, quae iure aperto nituntur, latius introduxit, ut actiones ipso iure minuant sive in rem sive personales sive alias quascumque excepta sola depositi actione. § 30, I. de act. 4, 6.1 Already in the later classical Law compensatio ipso iure (by virtue of law) constantly occurs; that is, it is not primarily affected by a judicial act (allowance by the Court of compensatio and rebate)-as it, on the other hand, is also entirely independent of the plaintiff's consent-but certainly by legal precept: so that, if the defendant makes good and carries his counterclaim by way of compensatio (in stricti iuris actiones, by means of exceptio doli), the plaintiff's claim must be regarded as extinguished from the very moment of its arising, so far as both cover one another. In the Law of Justinian the ipso iure compensari' has the yet further signification, that it requires no other formal exceptio consequent upon the change in judicial 1 But even in actions stricti iuris set-off was by a rescript of the Emperor Marcus allowed when a plea of fraud was put in. But our constitution has more widely introduced those claims of set-off which rest upon a manifest right, so that they reduce actions, whether real, personal, or of any other kind, by mere operation of law, with the single exception of the action of deposit. procedure, in order to make good the compensatio; but that, as previously only in the bonae fidei iudicia, so now invariably, if the defendant relies upon it, it has to be taken into consideration already 'officio iudicis.' Imp. Alex. Si constat pecuniam invicem deberi, ipso iure pro soluto compensationem haberi oportet ex eo tempore, ex quo ab utraque parte debetur, utique quoad concurrentes quantitates.-C. 4, 31, 4.' Ulp. Cum alter alteri pecuniam sine usuris, alter usurariam debet, constitutum est a D. Severo, concurrentis apud utrumque quantitatis usuras non esse praestandas.-1. II, D. eod. Paul. Posteaquam placuit inter omnes id quod invicem debetur ipso iure compensari, si procurator absentis conveniatur, non debebit de rato cavere, quia nihil compensat, sed ab initio minus ab eo petitur.-1. 21 eod.3 § 141. THE AGREEMENT FOR RELEASE. NEXI LIBERATIO, ACCEPTILATIO; PACTUM De non Peten- The dissolution here ensues, not by performance of the obligation, but by agreement between the two subjects thereof, by which the debtor is absolved from 1 If it is established that there is a debt on both sides, set-off must by operation of law be regarded as in lieu of payment from the time when there was a debt owing by both parties, at least as regards amounts due at the same time. 2 When one man owes another money without interest, and the other owes money carrying interest, it has been enacted by the late Emperor Severus that interest is not to be paid in respect of the amount due upon both sides at the same time. 3 After its having been held by all that what is mutually owing is by virtue of law made a set-off, if the agent of an absent party be sued, he will not have to give security for ratification, because he makes no set-off, but his claim is less from the first. BOOK III. Pt. I. Ch. Ir. |