Towards a generalized form of set-off

(a) Assimilation

All in all, therefore, one cannot say that the Roman lawyers developed a uniform, logical and systematic approach to the problem of set-off; what we are faced with appears—at least from a modern perspective— as a rather confused hotchpotch of different principles and criteria, dictated by procedural niceties.

In the one case, set-off operated ope exceptionis, in the other essentially ipso iure (though not quite).^[3917] Sometimes claim and counterclaim had to relate to performances of the same kind, but in other instances this was not essential for setting off the one against the other. Here the counterclaim had to be due, there even debts falling due in future were brought into account. In one situation set-off operated only where claim and counterclaim had arisen ex eadem causa; in another, it did not matter in which transaction the counterclaim found its origin. Justinian therefore faced a formidable task when he set out to streamline and rationalize this area of the law.¹²² The characteristic peculiarities of the classical formulary procedure had, of course, fallen away by his time, and thus there had been a trend, already for some time, towards assimilation and generalization.¹²³ Post- classical procedure was no longer divided into two different stages (proceedings in iure and apud iudicem). The actiones had lost their specific procedural significance, and the differences between stricti iuris and bonae fidei iudicia had largely been levelled out.¹²⁴ Particularly important in the present context was the change of attitude towards excessive claims. The strict all-or-nothing approach had not survived the demise of the formulary procedure, and thus pluris petitio no longer entailed dismissal (and consequent loss) of the entire claim. A plaintiff who had not taken account of the defendant's offsettable counterclaims could now be awarded the difference between claim and counterclaim.¹²⁵ This paved the way for the generalized form of set-off as introduced (or in any event recognized) by Justinian:..

nostra constitutio eas compensationes quae iure aperto nituntur, latius introduxit, ut actiones ipso iure minuant", as the emperor himself described his intervention.¹²⁶ In other words: it is the judge (and no longer the plaintiff) who determines the amount into which the defendant has to be condemned, and that amount, in the case of set-off, is the balance between claim and counterclaim. To a large extent, therefore, the regime governing the iudicia bonae fidei appears to have won the upper hand; thus, for instance, according to "nostra constitutio" (C. 4, 31, 14) a counterclaim could be taken into account only for the purposes of set-off "si causa... liquida sit et non multis ambagibus innodata". The same is meant when Inst. IV, 6, 30 refers to set-offs "quae iure aperto nituntur". Justinian merely formalized one of the main criteria that had guided the classical judge in the exercise of his discretion. But there were also important differences. A set-off was admissible even where claim and counterclaim originated in dispari ^[3918] ^{^[3919] causa; late classical jurisprudence already appears to have abandoned the ex eadem causa requirement which had originally restricted the set-off when it came to bonae fidei indicia.^[3920] On the other hand, however, the performances owed under claim and counterclaim now had to be of the same nature:^[3921] this was a consequence of the fact that the principle of omnis condemnatio pecuniaria had been abandoned in post-classical procedure^[3922] and that thus not every claim ultimately led to a condemnation to pay a certain sum of money.^[3923] (b) Set-off in the Corpus Juris Civilis
How did Justinian's compensation work?.. ut actiones ipso iure minuant" say the Institutes,^[3924] and in the Codex, too, it is emphasized that "[cjompensationes ex omnibus actionibus ipso iure fieri".^[3925] The implication appears to be that both claims were regarded as being satisfied without any intervention ot either of the parties being necessary. That is, however, in strange contrast to the language used in other places ("compensationis obici", "opponi compensationem")^[3926] and also to the fact that the ipso iure effect of compensatio has not been stressed more strongly (by way of interpolations) in the Digest.^[3927] Looking at the Corpus Juris as a whole, it is not difficult to see how a division of opinion could arise among the medieval lawyers about how best to harmonize the sources dealing with the operation (ope exceptionis or ipso iure?) of compensatio.
IV.}

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

Towards a generalized form of set-off

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