1Ad Dig. 16,2,1ROHGE, Bd. 8 (1873), S. 43: Zulässigkeit der Compensation von Gegenforderungen, obschon über letztere bereits quittirt ist, sofern die Quittung die Art der Tilgung nicht ergibt und behauptet wird, daß dieselbe nicht durch Zahlung, sondern durch Aufrechnung geschehen ist.Modestinus, Pandects, Book VI. Set-off is a contribution made between a debt and a credit.

2Ad Dig. 16,2,2ROHGE, Bd. 8 (1873), S. 43: Zulässigkeit der Compensation von Gegenforderungen, obschon über letztere bereits quittirt ist, sofern die Quittung die Art der Tilgung nicht ergibt und behauptet wird, daß dieselbe nicht durch Zahlung, sondern durch Aufrechnung geschehen ist.Julianus, Digest, Book XC. Any one can bar his creditor, who is also his debtor, when he brings an action against him if he is prepared to set off his claim.

3Pomponius, On Sabinus, Book XXV. Set-off is therefore necessary, because it is more to our interest not to pay, than to bring an action to recover what has been paid.

4Ad Dig. 16,2,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 349, Note 10.Paulus, On Sabinus, Book III. The opinion of Neratius, which is also held by Pomponius, is correct, namely: that what the principal debtor can retain as set-off the surety is released from liability for, by operation of law, in every contract; just as if when I bring suit for the entire amount against a debtor I do not proceed properly, and thus the security is not liable in strict law for a larger amount than the principal debtor can be compelled to pay as a judgment.

5Ad Dig. 16,2,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 349, Note 20.Gaius, On the Provincial Edict, Book IX. Where a claim is demanded from a surety, it is perfectly just for the latter to choose whether he prefers to set off what is due to himself or what is due to the principal debtor. He should also be heard if he wishes to make a set-off against the claims of both,

6Ad Dig. 16,2,6Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 288, Note 12.Ulpianus, On Sabinus, Book XXX. Whatever is due in consequence of a natural obligation can also become the subject of set-off.

7The Same, On the Edict, Book XXVIII. What is due at a certain time cannot be set off before the time arrives, even though it may be necessary for it to be paid. 1Where the judge does not consider the set-off, the right of action is saved to the creditor, for an exception based on the ground of a decision rendered cannot be interposed. I hold that the case is different if the judge has refused to consider the set-off on the ground that no debt existed; for then an exception based on a decision rendered will prejudice my case.

8Gaius, On the Provincial Edict, Book IX. That also is included in a set-off for the recovery of which suit has already been brought against the plaintiff, in order to prevent the condition of the more diligent party from becoming worse if the set-off should be refused him.

9Paulus, On the Edict, Book XXXII. Where a partnership has been contracted with a son under paternal control or a slave, and the father or the master brings suit, we include the whole amount in a set-off; although if we should bring suit, only that which has reference to the peculium must be made good. 1But where suit is brought against a son under paternal control, the question arises whether the son can, by way of set-off, claim, what is owing to the father? It is better to hold that he can, because there is only one contract, but this should be done under the condition that he gives security that his father will ratify his act, that is to say, that he will not, in the future demand what his son has set off.

10Ulpianus, On the Edict, Book LXIII. Ad Dig. 16,2,10 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 349, Note 10.Where two of us, being partners, have been guilty of the same negligence in matters affecting the partnership, it must be said that we cease to be bound to one another, set-off for the negligence in this instance, taking place by operation of law. In like manner, it is held that, where one partner has appropriated something which belongs to the common property and the other has been guilty of such negligence that it may be estimated at the same amount, set-off is held to have taken place, as well as the release of liability of both parties to one another by operation of law. 1Ad Dig. 16,2,10,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 349, Note 5.Therefore, where anyone, being able to make a set-off pays, he can bring suit to recover the money as having been paid when it was not due. 2Whenever a right of action arises from a breach of the law, as, for instance, from theft and other offences, if only a suit involving money is brought, a set-off can be admitted. The same rule applies where an action is brought for the recovery of stolen property. But if a party is sued in a noxal action, he can claim a set-off. 3Set-off can also take place in stipulations which resemble certain forms of action, that is to say, prætorian ones; and, according to Julianus, set-off can be claimed as well with reference to a stipulation itself, as in the action based upon it.

11Ad Dig. 16,2,11ROHGE, Bd. 25 (1880), Nr. 9, S. 38: Kompensation verzinslicher Forderungen.The Same, On the Edict, Book XXXII. When one party owes another a sum of money without interest, and the latter owes the other a sum bearing interest; it was decreed by the Divine Severus that interest was not due on the sums owed to one another by the two parties respectively.

12Ad Dig. 16,2,12ROHGE, Bd. 25 (1880), Nr. 9, S. 38: Kompensation verzinslicher Forderungen.The Same, On the Edict, Book LXIV. This law is applicable not only to the affairs of private individuals, but also those connected with the Treasury. Where, however, the money borrowed by the parties from one another bears interest, but the interest is at different rates, a set-off can, nevertheless, take place with reference to the sums due to the parties respectively.

13The Same, On the Edict, Book LXVI. Labeo says, and not without reason, that where a set-off is expressly intended to be made against a certain claim, opposition should not be made to its application to other claims.

14Javolenus, On Cassius, Book XV. Any claim that can be destroyed by an exception cannot be included in a set-off.

15The Same, Epistles, Book II. I stipulated for a certain sum of money to be paid by Titius at a certain place, he demands of me a sum of money which I owe him; I ask whether the interest I had in having the amount paid to me in a certain place, as aforesaid, should be included in the set-off? The answer was, that if Titius makes the demand, the sum also which he promised to pay in a certain place must be included in the set-off; but this must be done with reference to his case also, that is to say, the interest Titius had in having the sum of money owing to him paid in a place agreed upon must be taken into consideration.

16Papinianus, Questions, Book III. Ad Dig. 16,2,16 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 350, Note 17.Where a soldier has two heirs, one of whom inherits his peculium castrense, and the other the remainder of his property, a party who is indebted to one of the heirs, who wishes to set off what is due to him from the other, shall not be heard. 1Where a party against whom judgment has been rendered in favor of Titius, brings an action against the same Titius within the time granted for the execution of the judgment, who, himself, had previously had judgment rendered against him in favor of the other party, set-off will be admitted; for it is one thing for the day of the obligation not to arrive, and another to grant time for payment through motives of humanity.

17The Same, Opinions, Book I. An ædile, who has had judgment rendered against him because he distributed a smaller supply of provisions during his term of office than he should have done, cannot be held to be a debtor for money spent for grain; he will therefore be entitled to set-off.

18The Same, Opinions, Book III. Where an agent is appointed to conduct his own case in court, and, after issue has been joined, suit is brought against him for a loan, he will justly be entitled to a set-off. 1A creditor is not obliged to set off what he owes to anyone else than his debtor, even though the creditor of him in whose behalf the party is sued for his own debt may desire to make use of a set-off.

19The Same, Opinions, Book XI. Where a debtor who has paid a tax to a public slave, but without the consent of those to whom he should properly have paid the debt, the former obligation will continue to be in force; but a set-off will be granted to the extent of the peculium which the public slave has in his possession.

20The Same, Opinions, Book XIII. Where a person having charge of furnishing supplies to troops in an expedition, has judgment rendered against him on this account, it is held that he cannot retain the money by the right of set-off, as it is not subject to it.

21Ad Dig. 16,2,21Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 349, Noten 9, 10.Paulus, Questions, Book I. Since it has generally been held that what persons owe one another is set off by mere operation of law, if the agent of a person who is absent is sued, he need not give security that his act will be ratified, because nothing can be set off, but a smaller sum can be demanded from him in the beginning.

22Scævola, Questions, Book II. If you owe anyone ten thousand sesterces or a slave, whichever he may choose, set-off of the debt will be admitted, if he states openly which he prefers.

23Paulus, Opinions, Book IX. Where a guardian makes a demand in the name of his wards for what is due to them, the debtor cannot ask that his debt be set-off against one that the guardian himself owes him.

24The Same, Decrees, Book III. The Emperor ordered that a party should be heard who desired to prove that an amount was owing to him from the Treasury equal to that for which he himself was sued.