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Pt. 1. Ch. II.

22 pr.

BOOK III. powered to deduct from the claim sued for the concurrent amount of the counter-claim, and to give Cf. D. 44. 1, judgment against the defendant for the residue." This view was confirmed and made law by a rescript of Marcus Aurelius, since which the right of compensatio was recognised in all claims-even 'ex dispari causa -as quite universal. By Justinian, compensatio was finally declared to be allowable also in respect of in rem actiones, but on the other hand-so as to prevent delay in procedure-the necessity was imposed of every claim laid to compensatio being made provable.

But comp. C. 4, 34, II.

This, it is true, is contested and doubtful.

Sed et in strictis iudiciis ex rescripto D. Marci opposita doli mali exceptione compensatio inducebatur. Sed nostra constitutio eas compensationes, quae iure aperto nituntur, latius introduxit, ut actiones ipso iure minuant sive in rem sive personales sive alias quascumque excepta sola depositi actione. § 30, I. de act. 4, 6.1

Already in the later classical Law compensatio ipso iure (by virtue of law) constantly occurs; that is, it is not primarily affected by a judicial act (allowance by the Court of compensatio and rebate)-as it, on the other hand, is also entirely independent of the plaintiff's consent-but certainly by legal precept: so that, if the defendant makes good and carries his counterclaim by way of compensatio (in stricti iuris actiones, by means of exceptio doli), the plaintiff's claim must be regarded as extinguished from the very moment of its arising, so far as both cover one another. In the Law of Justinian the ipso iure compensari' has the yet further signification, that it requires no other formal exceptio consequent upon the change in judicial

1 But even in actions stricti iuris set-off was by a rescript of the Emperor Marcus allowed when a plea of fraud was put in. But our constitution has more widely introduced those claims of set-off which rest upon a manifest right, so that they reduce actions, whether real, personal, or of any other kind, by mere operation of law, with the single exception of the action of deposit.

Pt. I. Ch. Ir.

procedure, in order to make good the compensatio; BOOK III. but that, as previously only in the bonae fidei iudicia, so now invariably, if the defendant relies upon it, it has to be taken into consideration already 'officio iudicis.'

Imp. Alex. Si constat pecuniam invicem deberi, ipso iure pro soluto compensationem haberi oportet ex eo tempore, ex quo ab utraque parte debetur, utique quoad concurrentes quantitates.-C. 4, 31, 4.'

Ulp. Cum alter alteri pecuniam sine usuris, alter usurariam debet, constitutum est a D. Severo, concurrentis apud utrumque quantitatis usuras non esse praestandas.—l. II, D. eod.2

Paul. Posteaquam placuit inter omnes id quod invicem debetur ipso iure compensari, si procurator absentis conveniatur, non debebit de rato cavere, quia nihil compensat, sed ab initio minus ab eo petitur.-1. 21 eod.3

§ 141. THE AGREEMENT FOR RELEASE.

NEXI LIBERATIO, ACCEPTILATIO; PACTUM De non Peten-
DO; CONTRARIUS DISSENSUS.

The dissolution here ensues, not by performance of the obligation, but by agreement between the two subjects thereof, by which the debtor is absolved from

1 If it is established that there is a debt on both sides, set-off must by operation of law be regarded as in lieu of payment from the time when there was a debt owing by both parties, at least as regards amounts due at the same time.

2 When one man owes another money without interest, and the other owes money carrying interest, it has been enacted by the late Emperor Severus that interest is not to be paid in respect of the amount due upon both sides at the same time.

3 After its having been held by all that what is mutually owing is by virtue of law made a set-off, if the agent of an absent party be sued, he will not have to give security for ratification, because he makes no set-off, but his claim is less from the first.

Ꮓ Ꮓ 2

BOOK III.

Pt. I. Ch. II.

a § 116.

the obligatory nexus.
With the exception of 'pactum
de non petendo,' these agreements for release operate
ipso iure, and are only applicable to such obligations
as are created by a binding act answering to the form
of such agreements.
In 'nexi liberatio' and accepti-
latio,' the performance of the obligation can concur
with the act of release, so that this appears as a
solemn verification of the solutio (formal acknowledg-
ment of receipt); which indeed happens as a rule in
the older Law.

The 'nexi liberatio' is the solemn solutio per aes et libram, corresponding to the nexi obligatio," which was applicable to claims arising from a nexum and iudicatum.

Gai. iii. §§ 173-175: Est etiam species imaginariae solutionis, per aes et libram, quod et ipsum genus certis in causis receptum est, veluti si quid eo nomine debeatur, quod per aes et libram gestum sit, sive quid ex iudicati causa debeatur. § Eaque res ita agitur: adhibentur non minus quam quinque testes et libripens; deinde is qui liberatur ita oportet loquatur: QVOD EGO TIBI TOT MILIBVS CONDEMNATUS SVM, ME EO NOMINE A TE SOLVO LIBEROQUE HOC AERE AENEAQVE LIBRA HANC TIBI LIBRAM PRIMAM POSTREMAMQVE EXPENDO SECVNDVM LEGEM

PVBLICAM; deinde asse percutit libram eamque dat ei, a quo liberatur, veluti solvendi causa. § Similiter legatarius heredem eodem modo liberat de legato quod per damnationem relictum est; . . . de eo tamen tantum potest hoc modo liberari, quod pondere numero constet, et ita si certum sit quidam et de eo, quod mensura constat, idem existimant.1

There is also another kind of fictitious payment, that by copper and scale. This form of release has been adopted in certain cases, as for example, when anything is due on the

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BOOK III.

Pt. I. Ch. 11.

Acceptilation.'

'Acceptilatio'a is the agreement for Release answering to the stipulatio, and only applicable to verborum obligationes; consisting in a formal acknowledgment See Bell, s. of receipt, clothed in an oral interrogatory and answer, which later on was written, like the stipulatio, and § 117. also curtailed in form.

Mod. Acceptilatio est liberatio per mutuam interrogationem, qua utriusque contingit ab eodem nexu absolutio.-1. 1, D. h. t. (de accept. 46, 4).1

Gai. iii. § 169 Acceptilatio autem est veluti imaginaria solutio; quod enim ex verborum obligatione tibi debeam, id si velis mihi remittere, poterit sic fieri, ut patiaris haec verba me dicere: 'quod ego tibi promisi, habesne acceptum?' et ut respondeas: habeo.'"

Pomp.: Verborum obligatio aut naturaliter resolvitur aut civiliter: naturaliter veluti solu

score of a transaction by copper and scale, or due by virtue of a judgment. § And such matter is carried out as follows. Not less than five witnesses and a balance holder are procured. Then he who is being released must speak thus: 'Whereas I have been condemned to you in so many thousand sesterces, in respect thereof I release and free myself from you with this copper and these scales: I weigh out to you this the first and last pound, according to the public law.' Then he strikes the scale with the coin, and gives it to him from whose claim he is being released, as though by way of payment. § In like manner a legatee releases the heir from a legacy which has been bequeathed per damnationem; . . . but he can be freed in this way only in respect of that which lies in weight or number, and so if it is of definite amount; some think the same of what goes by measure.

1

1 Acceptilatio is discharge by mutual inquiry, which operates release of both persons from the same bond.

2 Now acceptilatio is, so to speak, a fictitious payment; for if you are willing to forgive me that which I owe you upon a verbal contract, it can be done by your letting me say these words: 'Have you received that which I promised you?' and by your replying, ‘I have.'

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tione; . . civiliter veluti acceptilatione.— 1. 107, D. de solut. 46, 3.1

Ulp. Inter acceptilationem et apocham hoc interest, quod acceptilatione omnimodo liberatio contingit, licet pecunia soluta non sit, apocha non alias, quam si pecunia soluta sit.-1. 19, § 1, h. t.

Id.: Acceptum fieri non potest, nisi quod verbis colligatum est: acceptilatio enim verborum obligationem tollit, quia et ipsa verbis fit.— 1. 8, § 3 eod.3

Si accepto latum fuerit ei, qui non verbis sed re obligatus est, non liberatur quidem, sed exceptione doli mali vel pacti conventi se tueri potest. -1. 19 pr. eod.*

Other obligations, for acceptilatio, must first be converted by novation into a verborum obligatio. The Aquiliana stipulatio' contained a formula applicable in general settlement of accounts for complete extinction, by means of acceptilatio, of all claims that had arisen from whatever cause.

Gai. iii. § 170: Sed et id, quod ex alia causa debeatur, potest in stipulationem deduci et per acceptilationem dissolvi."

by

1 A verbal obligation is again dissolved either by natural or by civil Law; by natural, as for instance, by payment; civil, as by acceptilatio.

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2 Between an acceptilatio and a receipt there is this difference, that by acceptilatio a release avails in all cases, although the money have not been paid: a receipt, not unless the money has been paid.

3 By acceptilatio that alone can be remitted which has been concluded by word; for an acceptilatio dissolves a verbal obligation, because it also arises by words.

If a release shall have been given by acceptilatio to one who did not become liable by words, but by a thing, he is not in fact released, but he can defend himself by the plea of fraud or by agreement made.

5 But that also which is due upon some other ground can be made the subject of a stipulation, and dissolved by an accep

tilatio.

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