2. The procedural framework for set-off in Roman law

(a) Indicia bonae fidd

One of the most characteristic features of set-off in Roman law was its distinctly procedural flavour.^[3906] Whether, and if so, in which manner and under which circumstances a set-off could be effected depended entirely on the nature of the formula applicable in a given situation.

Thus, first of all, there were the iudicia bonae fidei. If a purchaser brought the actio empti, a locator the actio locati, etc., the judge was always instructed to assess "quidquid ob earn rem N^m N^m A° A° dare facere oportet ex fide bona". This entailed a complete discretion to take into account any counterclaim arising from the same transaction, and to condemn the defendant only in the difference.¹⁰¹ It did not matter whether money or another kind of performance was owed, for, due to the principle of omnis condemnatio pecuniaria, judicial assessment of a specific sum of money was required even in the latter case. The one sum could then conveniently be subtracted from the other. Unlike in modern law,¹⁰² set-off did therefore not require that the parties owed each other acts of performance of the same kind and nature. But apart from that, the Roman compensatio ex bona fide was more narrowly circumscribed than its modern counterpart: the counterclaim had to arise ex eadem causa;¹⁰³ and whether set-off was effected at all was in the court's discretion. If, for instance, ascertainment of the counterclaim was likely to delay the proceedings unduly, the judge usually refused to take account of it. The defendant was then free to institute a separate action.¹⁰⁴

(b) Actiones Strict! turis

Secondly, the actiones stricti iuris. Their formulae did not contain such a convenient opening for the judge to consider the possibility of a set-off ex officio. Unless the parties came to a specific agreement (which could be informal)¹⁰⁵ to set their claims off against each other, they had to sue each other separately.

If, however, during the proceedings in iure (that is, before the praetor) it turned out that the defendant had a counterclaim which was both due and entailed performance of the same kind as the one expected of himself, the praetor could ask the plaintiff to reduce his claim accordingly and to limit his request for condemnation to the difference between claim and counterclaim. If the plaintiff was unwilling to do that, the praetor could refuse to grant an action (denegatio actionis). This he would, however, only contemplate either if the counterclaim was undisputed or if the defendant was able immediately to prove its existence and the amount involved: for under these circumstances the plaintiffs insistence on condemnation into the full amount of his claim could hardly be regarded as fair and proper. If, on the other hand, the praetor regarded the defendant's demand for a set-off as inappropriate, he refused to accept any such possibility (compensationem denegare)¹⁰⁶ and pro-

"In bonae fidei autem iudiciis libera potestas pennitti videtur iudici ex bono et aequo aestimandi quantum actori restitui debeat, in quo et illud continetur ut, habita ratione eius quod invicem actorem ex eadem causa praestare oporteret, in reliquum eum cum quo actum est condemnare": Gai. IV, 61.

“ Windscheid/Kipp. § 350. 4; § 387 BGB; Joubert. Contract, p. 290.

“ Gai. IV. 61.

“ Kaser. RPr I. p. 645.

“ Kaser. RPr I. p. 646.

“ Gai. D. 16. 2, 8.

ceeded to grant the action, as requested, to the plaintiff.

But what happened if the praetor was not sure about the substance of the defendant's counterclaim? It was, of course, not up to him to hear and evaluate the evidence and to pronounce upon the merits of the case; that was the task of the iudex in the second stage of the formulary proceedings. But the iudex could investigate these matters only if he was expressly instructed by the praetor to do so, and such instruction had to be part and parcel of the procedural formula granted to the plaintiff.

The obvious solution, therefore, was the insertion of an exceptio into the formula. This is indeed what appears to have happened, for Justinian reports that the Emperor Marcus Aurelius had made the exceptio doli available for that purpose: "... sed et in strictis iudiciis ex rescripto divi Marci opposita doli mali exceptione compen- satio inducebatur."^[3907] But this is where the problems really start. It is unlikely that this passage, and with it the attribution of a set-off, ope exceptionis, to (late) classical law, are entirely spurious,^[3908] though it is much less clear whether Marcus Aurelius really introduced a new idea or did not rather sanction an existing practice.^[3909] If, however, the whole scheme originated in classical jurisprudence, it is very difficult to make out how it operated within the rather stringent framework of the formulary procedure. Two particularly awkward questions had to be addressed. On the one hand, a plaintiff who disputed the existence of the counterclaim in the course of the proceedings in iure could not necessarily be taken to have acted in contravention of good faith and average business decency. If the defendant was able to substantiate his claim only apud iudicem, the requirements of the exceptio doli cannot usually have been satisfied, and thus any possibility of a set-off was bound to fail. On the other hand, there was the difficulty that, depending on whether the plaintiff had acted dolo malo or not, the defendant could be condemned only into the full amount claimed by the plaintiff or had to be absolved completely. "Si in ea re nihil dolo malo A¹ A¹ factum sit vel fiat" was what the exceptio instructed the judge to investigate,^[3910] and "iudex N^m N^m A° A° condemnato, si non paret, absolvito" were the two alternatives offered to him in the condemnatio. This strict all-or-nothing approach obviously entailed a grave risk for the plaintiff, for if he refused to accept the suggestion of the judge to reduce his claim by the amount of the defendant's counterclaim and if, as a result, he obtained only a formula containing the exceptio doli, he had to face the very real prospect of losing his claim altogether rather than having it cut in size.

What solutions (if any) the Roman jurists found to obviate these problems, we do not know. Only speculations are possible. Thus, it has, for instance, been suggested ¹¹ that the "neque fiat" clause of the exceptio doli (in any event a powerful tool to advance the cause of equity and fairness)¹¹² may have been taken to refer not only to cases where the bringing of the action could be regarded as an infringement of the precepts of good faith, but also to those where something in the behaviour of the plaintiff, after litis contestatio right up to the time of judgment, constituted dolus. If this was in fact the case, one could have argued as follows. In view of the exceptio doli, it was the judge's duty to establish whether the defendant had a counterclaim which could be used for set-off purposes. If he had satisfied himself that such a claim existed, he would have to ask the plaintiff to accept the balance between claim and counterclaim in full settlement of the defendant's debt. Normally the plaintiff could be expected to accede to this request. If he did, the defendant was asked to pay the balance; and once payment had taken place, the judge could absolve the defendant. This was a somewhat roundabout procedure, but in the end a set-off was effected. If, on the other hand, the plaintiff insisted on payment of the whole sum due to him (despite the fact that the existence of an offsettable counterclaim had in the meantime been established), he could now with some justification be said to have overstepped the line dividing bona fides and dolus (malus), and it was neither strange nor inequitable if the judge proceeded to absolve the defendant under these circumstances (with the result that the plaintiff lost his entire claim).

There was, thirdly, however, one actio stricti iuris where an automatic set-off was already built into the formula. A banker (argentarius) who sued his customer was granted a formula with the following intentio: "Si paret N^m N^m A° A° HS X milia dare oportere amplius quam A^s A^s № № debet...,"¹¹³ It required the banker to establish his customer's counterclaims and to reduce his own claim accordingly, for his action was limited to the balance due to him ("amplius quam").¹¹⁴ The range of counterclaims that had to be taken into account was not limited to those arising ex eadem causa; it was sufficient that things of the same kind and nature were the object of both claim and

¹¹¹ Kaser, RPr I, p.

646; for different suggestions and further discussion, see Paul van Warmelo, "Le resent de Marc-Aurele a propos de la compensation", in: Melanges Henri Leiiy-Bruhì (1959Ì. pp. 335 sqq.; Siro Solazzi. La compensazione nei diritto romano (2nd ed.. 1950), pp. 97 sqq.; Rozwadowski (1978) 81 BJDR 11 sqq.

" Cf. supra, pp. 667 sq.

® Gai. IV, 64; Lend, EP, p. 256; cf. further e. g. Solazzi, op. at., note 111, PP· 31 sqq.; Thielmann, Privatauktion, pp. 159 sqq.

Set-off thus operated "ipso iure" in this instance; cf. Honsell/Mayer-Maly/Selb, p. 273.

counterclaim^[3911]—usually, of course, we are dealing here with money. In drawing up the balance, the banker had to be extremely careful, for if it turned out, apud iudicem, that he had claimed too much (albeit only a farthing)/^[3912] he lost his entire claim:. si facta compensatione

plus nummo uno intendat argentarius, causa cadat et ob id rem perdat."^[3913] Such was the harsh consequence of pluris petitio:^[3914] the judge could condemn only into exactly the sum that the plaintiff had asked for; alternatively, he had to absolve the defendant. After all, a defendant who in actual fact owed 99 could not be said to owe the sum of 100, which a plaintiff might have claimed erroneously.

Finally, there was a special kind of set-off operating with regard to debts due to an insolvent estate. Whenever a bonorum emptor (that is, the purchaser of the property of an insolvent debtor) instituted an action, he had to do so "cum deductione": he had to deduct from his claim whatever he himself owed to the defendant by virtue of having become the insolvent person's successor.^[3915] In IV, 65-68 Gaius compares agere cum compensatione of the argentarius with agere cum deductione of the bonorum emptor, and notes three main differences: it was not in the intentio but only in the condemnatio of the formula that account was taken of deductio (which meant that the bonorum possessor was not faced with the dire consequences of pluris petitio); deductio did not operate only where performances of the same kind and nature were the object of both claim and counterclaim, but allowed a set-off even of "quod non est eiusdem generis";^[3916] and it also operated with regard to counterclaims that had not yet fallen due.

<< | >>

↑

Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

2. The procedural framework for set-off in Roman law

More on the topic 2. The procedural framework for set-off in Roman law: