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ignorante, liberat eum.-D. 3, 5, 39. Cf. Inst.
iii. 29 pr.1

(3) Payment and corresponding acceptance thereof presuppose capacity for alienation."

Pupillum sine tutoris auctoritate nec solvere posse palam est.-Pupillo solvi sine tutoris auctoritate non potest; . . . si tamen solverit ei debitor et nummi salvi sint, petentem pupillum doli mali exceptione debitor summovebit.-1. 14, § 8 (Ulp.), l. 15 (Paul.), h. t.2

(4) Delegatio in effect is fully equivalent to payment. It is the stipulation concluded by assignation (iussus) of the debtor (delegans), between the creditor (delegatarius) and a third party (delegatus) and indifferently whether 'debitor debitoris ' or not-for the object of debt, especially a sum owing.b

BOOK III.

Pt. I. Ch. II.

a Gai. ii. 84.

Cf. § 142, ad init.; D. 39, 5,

Ulp. Solvit et qui reum delegat.-D. 16, 1, 21, 1. 8, 3.3

Iul. Qui debitorem suum delegat, pecuniam dare intelligitur, quanta ei debetur.-D. 46, 1, 18.4

Paul. licet is solvendo non fuerit: quia bonum nomen facit creditor, qui admittit debitorem delegatum.-D. 17, 1, 26, 2.5

Certain debtors have assured to them the legal

1 Everybody by payment for another, although without his consent and knowledge, procures his discharge.

...

2 It is manifest that a ward cannot make a payment without his guardian's sanction.-A payment cannot be made to a ward without the sanction of his guardian; . . . if, however, a debtor has paid him, and the money is untouched, the debtor will defeat the ward, if he sue, with the plea of bad intention. He too makes payment who delegates a debtor.

If a man delegate his debtor, it is treated as though he pays as much money as is owing to him.

—although the debtor shall not have been solvent; because the creditor that accepts a delegated debtor treats the debt as a good one.

BOOK III.

Pt. I. Ch. II.

a For which

alone they can

be condemned
(§ 197).
§ 204. Cf.
Bell, s. vv.

< Bell, s. v.

benefit, that they need to pay, not the whole amount of the debt, but only id quod facere possunt,' i.e., just so much as they can pay for the time being: beneficium competentiae.' This, according to a later legal opinion, was without deprivation of the means of subsistence.

Paul. In condemnatione personarum, quae in id quod facere possunt damnantur, non totum quod habent extorquendum est, sed et ipsarum ratio habenda est, ne egeant.-D. 50, 17, 173.

Ulp. Sunt, qui in id quod facere possunt conveniuntur, id est non deducto aere alieno; et quidem sunt hi fere : qui pro socio conveniuntur; item parens, patronus patrona liberique eorum et parentes; item maritus de dote in id quod facere potest convenitur.-D. 42, 1, 16, 17.2

:

Paul. Is quoque, qui ex causa donationis convenitur, in quantum facere potest condemnatur: et quidem is solus deducto aere alieno.-1. 19, § I eod.

§ 140. COMPENSATIO.C

Compensatio' (set-off) is the mutual extinction of the creditor's claim and of the debtor's counter-claim upon the creditor-the subject of both claims being quantities of the same kind-so far as they cover one another in amount.

1 In the condemnation of persons who are condemned for that which they are able to pay, not all that they have is to be taken away, but consideration must be paid also to themselves, that they be not in want.

Some persons are sued for that which they can render, that is, without deduction of debts. And indeed they are in general the following: those sued pro socio; a parent likewise, a patron, and patroness, and their children, and ancestors; a husband, again, is sued as to dos, for that which he can render.

3 He too that is sued upon a donation is condemned for as much as he can render, and indeed such person alone after deduction of debts.

:

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.a2

BOOK III.

Pt. I. Ch. 11.

a See Haynes, 'Outlines of

Ulp. Etiam quod natura debetur, venit in Equity (5th compensationem.-1. 6 eod.'

ed.), p. 104.

30.

63.

(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 Gai. iv. 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. I. Ch. II.

a Gai. iv. 35.

Iul. Unusquisque creditorem suum eundemque debitorem petentem summovet, si paratus est compensare.-1. 2 eod.1

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 emptor cum deductione agere iubetur, id est ut in hoc solum adversarius condemnetur,quod superest deducto eo, quod invicem ei bonorum emptor defraudatoris nomine debet. § Inter compensationem autem quae argentario opponitur et deductionem quae obiicitur bonorum emptori, illa differentia est, quod in compensationem hoc solum vocatur, quod eiusdem generis et naturae est: veluti pecunia cum pecunia compensatur, triticum cum tritico, vinum cum vino, adeo ut quibusdam placeat, non omnimodo vinum cum vino aut triticum cum tritico compensandum, sed ita si eiusdem naturae qualitatisque; in deductionem autem vocatur et quod non est eiusdem generis : itaque si pecuniam petat bonorum emptor et invicem frumentum aut vinum is debeat deducto quanti id erit in reliquum experitur. § 68: Praeterea compensationis quidem ratio in intentione ponitur; quo fit, ut si facta compensatione

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
et ob id rem perdat: deductio vero ad condem-
nationem ponitur, quo loco plus petenti periculum
non intervenit; utique bonorum emptore agente,
qui licet de certa pecunia agat, incerti tamen
condemnationem concipit.'

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. deduction is placed in the condemnatio, where no danger attends But a 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.

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705

BOOK III.

Pt. I. Ch. 11.

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