COMPENSA´TIO
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lasted on in the system of procedure which superseded that of the formula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.）
[
J.B.M]
