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COMPENSA´TIO is defined by Modestinus (Dig. 16, 2, 1) as “debiti et crediti inter se contributio:” it corresponds to the English set-off and counterclaim. The full application of this principle was only of slow development in Roman law. Gaius says (4.64) that bankers in suing their debtors were compelled to make allowance for what they themselves owed the latter, and bring their action only for the balance (Plautus, Aulul. 3.5, 56; Captiv. 1.2, 89), and that the actions of bonorum emptores (BONORUM EMPTOR) were governed by the same rule (deductio). In bonae fidei judicia (such as the actions on most contracts), the judge was bound, as acting under his commission ex fide bona, to take account of sets-off arising ex eadem causa, from the same transaction (Gaius, 4.61); and though Justinian says (Inst. 4.6, 30) that set-off was not allowed in stricti juris actions (i. e. actions in the main on formal contract and mutuum) till a rescript of M. Aurelius, and then only on the condition of the defendant's getting an exceptio doli inserted in the formula, it would seem that this had been done before in some actions of this class by special favour (Dig. 16, 2,4 and 5), and that the emperor's enactment only made the matter a general rule. Apparently, too, from that time onward, claims arising ex dispari causa could be set off in actions of either kind by the employment of the same exceptio doli. This distinction between compensatio effected officio judicis, and that resulting from the use of the exceptio doli, seems to have lasted on in the system of procedure which superseded that of the formula about the end of the 3rd century of our era, until Justinian abolished it (Cod. 4, 31, 14, pr. and 1). In his time, set-off of any kind, whether arising ex eadem or ex dispari causa, could be advanced with effect at any stage of the action up to judgment, though it is uncertain whether, by the enactment last referred to, he first allowed compensatio in Real actions. It was essential, however, that the claims set off against one another should relate to par materia or genus ( “veluti pecunia cum pecunia compensatur, triticum cum tritico, vinum cum vino,” Gaius, 4.66; cf. Cod. 4, 31, 4). But it is hardly certain how far it was required that the set-off should be clearly proved or provable: perhaps from Cod. 4, 31, 14, 1, we should infer that the proof and assessment of the counterclaim must not be so intricate as practically to reverse the rôles of the parties, and, as it were, to turn the defendant into a plaintiff.

When a person appeared as plaintiff on behalf of another (e. g. a tutor for his pupillus), the debtor could not advance in compensatio a debt due to him from the agent on his own account; and sureties when called upon to discharge an obligation in lieu of the principal debtor, might set off debts due from the plaintiff, either to the latter or to themselves. (Cf. Dig. 16, 2; Cod. 4, 31; Paul. Sent. rec. 2.5, 3; Bethmann-Hollweg, Zur Lehre von der Compensation, Rhein. Mus. 1.257; Brinz, Die Lehre von der Compensation, 1849; Dernburg, Die Compensation, 1868; Savigny, System, v. p. 467 sq.


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