!!Экзамен зачет 2023 год / The Law of Obligations

promisor had been able to make his way across the sea to northern Africa.25 Failing any such indications to the contrary, the creditor could demand performance at once.2ft If, on the other hand, a specific due date had been set by the parties, the creditor could—of course—not claim performance before the time stated. But was the debtor free to discharge his obligation even before the due date? Several texts in our sources indicate that he was;27 according to the BGB, this is to be presumed in case of doubt.28

The place of performance, too (if it had not been fixed by the parties), was to be deduced from the circumstances of the case. Thus, for instance, a freedman had to render his services at the place where his patron resided.29 If no such inference could be drawn, fungibles had to be delivered at the place where the creditor could sue for them,30 and that was usually the domicile of the debtor.31 Specific things, on the other hand, had to be delivered where they were at the time of conclusion of the contract.32 Generally speaking, one can thus say that it was incumbent on the creditor to go and collect the performance due to him ("Holschuld" or "haalskuld" in modern parlance), not on the debtor to effect his performance at the creditor's place (" Bringschuld " or "bringskuld").33

5 Paul. D. 45, 1, 73 pr. (". . . tacite tcmpus complecti videtur, quo perveniri Carthaginem potcst"); cf. also Pomp. D. 45, 1, 14 (relating to domum aedificari).

26Pomp. D. 50, 17, 14: "In omnibus obligationibus, in quibus dies non ponitur, praesenti die debitur." Cf. also § 271 I BGB.

27Cels. D. 46, 3, 70; Ulp. D. 45, 1, 38, 16; Ulp. D. 45, 1, 41, 1; Ulp D. 50, 17, 17. The decision depends on the determination of the question in whose interest the time clause has

been inserted into the contract; cf. e.g. Windscheid/Kipp, § 273; Joubert, Contract,

pp. 282 sq.

f § 271 II BGB.

29 lav. D. 38, 1, 21, who adds, however, that the freedman came to the patronus' place at the expense of the latter ("sumptu scilicet et vectura patroni").

0 Lie. Ruf. D. 5, 1, 38 (". . . quod pondere aut numero aut mensura continetur, ibi dari debet ubi petitur"); Ulp. D. 30, 47, 1.

31 Kaser, RZ, p. 183. The general rule is actor sequitur forum rei; cf. С 3, 19, 3; С. З, 13, 2; vat. 325, 326. A similar situation obtained in the old Germanic law: cf. G.W. Wetzell, System des ordentYxchen Civitprozesses (1878), p. 485. "Actor sequitur forum rei" became the rule in the German Code of Civil Procedure (§§ 12 sq. Civil'pro zessordnung of 1877), but since the parties were free to determine the question of jurisdiction by way of agreement (§ 38 Civilprozessordnung), it lost much of its significance (c(. e.g. Richard Schmidt, Lehrbuch des deutschen Zivilprozessrechts (1906), pp. 252, 274). This trend has, however, in the meantime been decisively reversed by the legislator (cf. the new §§ 38 sqq. ZPO, introduced in 1974, drastically curtailing the possibility of jurisdiction agreements). The rule of "actor sequitur forum rei" is generally seen today to be based on considerations of justice rather than mere convenience (BGHZ 41, 151 (154) and, for instance, Max Vollkommer, 1973 Neuejuristische Wochenschrift 1592). Generally on "actor sequitur forum rei", see Andreas Wacke, 1980

Juristische Arbeitsblatter 654 sqq.

32Lie. Ruf. D. 5, 1, 38 (". . . ibi dari debet ubi est"); Ulp. D. 30, 47, 1.

33On the terminology cf. e.g. Joachim Gernhuber, Die Erfullung nnd ihre Surrogate (1983), pp. 15 sqq. For all details on the place of performance in Roman law cf. Solazzi, op. cir., note 7, pp. 106 sqq.; Francesco Amarelli, Locus solutionis (1984); on the later history, Roman-Dutch and South African law, see D.j. Joubert, "Die Locus Solutionis", 1971 Ada

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4. Performance rendered by third parties/to third parties

In many cases (particularly when he is owed a sum of money) the creditor will be concerned only about receiving performance, not necessarily about receiving it from his debtor. Hence the provision in the BGB (§ 267) that third parties are entitled to make performance on behalf of the debtor even without the approval of the latter. In the same vein, Gaius states: "Solvendo quisque pro alio licet invito et ignorante liberat eum."34 Neither in Roman nor in modern law,35 however, does this rule apply without exception. Whenever the nature of the performance is determined by special qualities of the debtor—his skill, knowledge or experience—performance has to be made in person. If the creditor has asked a specific entrepreneur to build a ship or a house for him, he is entitled to expect performance in person and cannot be obliged to accept the work of another manufacturer: "[ijnter artifices longa differentia est et ingenii et naturae et doctrinae et institutions. "36 If it often does not matter who renders performance, it is, as a rule, important that it is made to the creditor and not to any third party. The creditor has, however, always been able to authorize another to receive performance.37 The procurator,38 particularly, was often in such a position. Alternatively, performance to a third party could terminate the obligation if the creditor was prepared (subsequently) to ratify it.39 Occasionally, even an ostensible authority was sufficient. Iulianus gives the following example:

"Si Titium omnibus negotiis meis praeposuero, dcinde vetuero cum ignorantibus debitoribus administrate ncgotia mea, debitorcs ei solvendo liberabuntur: nam is, qui omnibus negotiis suis aliquem proponit, intellegitur etiam debitoribus mandare, ut procurator! solvant."4"

At the time of performance Titius' authority to manage the creditor's affairs had been withdrawn. This was not known to the debtors, who still relied on the appointment of Titius as the creditor's procurator. Such reliance deserves protection, and thus the debtors' performance to Titius was taken to have discharged their obligations. Very similar considerations prevail in the modern law of agency.41 Finally, a debtor was able to discharge his obligation by performing towards a solutionis

Juridica 105 sqq.; for a comprehensive comparative analysis of modern law cf. Haimo Schack, Der Erfiiliunysort im deutschen, ausia'ndischen und itttemationalen Privatund Zivilprozessrecht (1985)!

34Gai. D. 3, 5, 38; cf. also Gai. D. 46, 3, 53.

35For English law cf. Trcitel, Contract, pp. 572 sqq.

36Ulp. D. 46, 3, 31. Cf. further Solazzi, op. cic, note 7, pp. ЗУ sqq.; Windscheid/Kipp,

§342, 4; § 267 BGB; Joubert, Contract, p. 275.

37Ulp. D. 46, 3, 12 pr.; Mara. D. 46, 3, 48. Cf. also Soiazzi, op. cit., note 7, pp. 54 sqq.; Windscheid/Kipp, § 342, 5; § 362 II, read together with § 185 BGB; Joubert, Contract, p. 276.

38Cf. supra, pp. 53, 417.

34 Ulp. D. 46, 3, 12, 4 ("rati enim habitio mandaco comparatur").

40D. 46, 3, 34, 3; cf. also Gai. Ill, 160.

41«S 167, 170 BGB.

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causa adiectus:42 this was a third party (for instance, a bank) specifically incorporated into the wording of a stipulation as an alternative recipient of the promisor's performance ("mini aut Titio dari spondes?").43 Of course, he could not sue for performance, for then we would have been dealing with a stipulatio alteri.44 Once the debtor had been given the choice of performing either to the stipulator himself or to a solutionis causa adiectus, the creditor could no longer unilaterally withdraw that choice.45

5. Datio in solutum

It has been stated above that the debtor was obliged to perform what he owed under the contract. If he gave something else in lieu of what he owed, the obligation was not discharged. The creditor was, however, free to accept the substitute performance. If he decided to do so, such datio in solutum had the same effect as the ordinary solutio: it released the debtor from his obligation.46 Problems could arise if, for instance, a debtor owing money gave a movable object in solutum. Acceptance of that object by the creditor terminated the obligation. But what if the creditor was subsequently evicted due to the fact that a third party turned out to have a better title? According to Marcianus, he was able to fall back upon the original obligation: "Si quis aliam rem pro alia volenti solvent et evicta fuerit res, manet pristina obligatio."47 In other words, the (original) obligation fell away only if the alternative performance led to full and final satisfaction of the creditor. There are, however, texts in the Corpus Juris, according to which even an ultimately unsuccessful attempt to satisfy the creditor appears to have had the effect of terminating the original obligation, for in the event of an eviction the creditor was not allowed to sue on the original debt but was granted an actio empti utilis.

"Si pracdium tibi pro soluto datum aliis crcditoribus fuerat obligatum, causa pignoris mutata non est. igitur si hoc iure fuerit evictum, utilis tibi actio contra debitorem compctit. nam eiusmodi contractus vicem venditionis obtinet."4H

The datio in solutum is seen here as a kind of sale, for the creditor is treated as if he had purchased the object given to him in lieu of payment

42Сf. generally Solazzi, op. cit., note 7, pp. 64 sqq.; D.J. Joubert, "Solutionis causa adjcctus", (1979) 42 THRHR 1 sqq; cf. supra, pp. 38 sq.

43Cf. e.g. Paul. D. 46, 3, 10; Ulp. D. 46, 3, 12, 3.

44Cf. supra, pp. 34 sqq., 39.

45Ulp. D. 46, 3, 12, 3; Gai. D. 46, 3, 106; but see Pothier, Traitt des obligations, n. 525;

Cassim v. Latha 1930 TPD 659 sqq.; Mahomed v. Lockhat Bros. Co. Ltd- 1944 AD 230 at 237

sq.; cf. Joubert, (1979) 42 THRHR 6 sqq.

4fl There was a school dispute as to whether the debtor was released ipso iure or could only bar the creditor's claim under the original action by means of an exceptio doli: the Sabinians took the former view, the Proculians the latter; cf. Gai. Ill, 168. The Sabinian view eventually gained the upper hand: Kaser, RPr II, p. 442. Cf. also today § 364 I BGB.

47 D. 46, 3, 46 pr.; the same opinion is expressed by Paulus in D. 46, 3, 98 pr. 4R С 8, 44, 4 (Ant.). Cf. also Ulp. D. 13, 7, 24 pr.

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of the original debt. Codex 8, 44, 4 and a variety of other texts expressing similar ideas49 are probably interpolated,50 for it was Justinian who tried to bring datio in solutum into line with the contract of emptio venditio.51 Nevertheless, in the history of the ius commune they have exerted great influence.52 This is apparent, for instance, from the rule adopted in the BGB:

"If a thing, a claim against a third party, or any other right is given in lieu of fulfilment, the debtor shall grant warranty in the same manner as a seller, against a defect in title and against a defect in the thing."53

It is very doubtful, however, whether this construction correctly reflects the intentions of the parties, for the average creditor can hardly be taken to have given up his claim in return for a performance which might still be taken away from him.54

II.RELEASE

1.Solutio per aes et libram and acceptilatio as actus contrarii

The Latin word for performance/fulfilment of an obligation was "solutio", acceptance in lieu of fulfilment (or substituted performance) was referred to as datio in solutum. This may appear to be a strange terminology, because literally speaking, the verb "solvere" means to unbind, to untie (somebody). This word and all its derivations possess a distinctly archaic flavour. They take us back to the days when an obligatio was not merely a vinculum iuris but a physical bond, through which a pledge-like power of seizure was established over the body of the person liable for a wrong.55 In the case of what came to be called "contract", one person subjected himself to this power of seizure by means of a formal transaction. Naturally, however, there had to be some way of bringing to an end this uncomfortable sojourn in the "creditor's" dungeons. Neither of the two parties concerned normally had any interest in bringing matters to a head: to a sale of the "debtor"

49Cf., apart from Ulp. D. 13, 7, 24 pr., Paul. D. 41, 3, 4, 17; Ulp. D. 42, 4, 15; and Ulp. D. 44, 4, 4, 31.

50Cf., most recently, Manfred Harder, Die Leistung an Erju'Uungs statt (1976), pp. 93 sqq.; for a different opinion, see e.g. Generoso Melillo, In solutum dare (1970), pp. 91 sqq., Ill sqq.; cf. also Kaser, RPr I, p. 638; RPr II, pp. 442 sq.; Honsell/Mayer-Maly/Selb, p. 264 (controversy amongst the classical jurists; but cf. Harder, pp. 97 sq.). For a discussion of the attempts, from the time of the glossators down to the pandectists, to harmonize the divergent sources cf. Harder, pp. 69 sqq. On Roman-Dutch and South African law, see D.J. Joubert, "Datio in Solutum", (1977) 10 Dejure 29 sqq.

51For his reasons cf. Ernst Rabel, "Nachgeformte Rechtsgeschafte", (1907) 28 ZSS 312 sqq.; Harder, op. cit., note 50, pp. 103 sq.

Frequently the creditor was given a choice whether to use the original action or the actio empti; cf. e.g. Gluck, vol. 21, p. 197; Windscheid/Kipp, p. 420. 55 § 365 II.

54For further detailed criticism of § 365 II BGB cf. Harder, op. cit., note 50, pp. 106 sqq.; cf. also Gemhuber, op. cit., note 33, pp. 180 sqq.

55Cf. supra, pp. 2 sq.

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trans Tiberim or perhaps even to his being cut into pieces.56 If we look, for instance, at nexum as one of the oldest liability transactions,57 we see that the "debtor" was supposed to redeem himself by repaying, within a certain time, a specific sum that had been lent to him. It was only where he failed to do so that the question of his liability—that is, of the creditor's power of seizure—became relevant. But (informal) payment as such, although in a substantial sense it satisfied the "creditor", did not release the person liable from his bondage. The obligation had been created by a strictly formal act, and thus it could be "solved" only by another formal act, which, as a rule, had to correspond to the former. Thus, where the person liable had assumed his obligation by way of nexum (a solemn act per aes et libram), he could disentangle himself only by performing another act involving copper, scales and witnesses: the solutio per aes et libram (or nexi liberatio).58 With the rise of the contract verbis (stipulation in particular), acceptilatio was developed as an oral form of dissolving oral obligations. Solutio per aes et libram and acceptilatio were thus devised as symmetrical actus contrarii to the transactions they were intended to discharge; they provide a good illustration of the ancient idea (featuring particularly prominently in the religious and magical spheres)59 that what has once been done cannot be undone but by a corresponding act60—and since all (legally) relevant acts in ancient times were formal, the actus contrarius necessarily had to be formal too.

2. The rise of informal solutio

All this changed in the course of the Republic, and by the time of the 3rd century61 the performance as such (i.e. an informal solutio) was generally regarded as sufficient for the termination of the obligation. Legal thinking had emancipated itself from the fetters of formalism, magic and religion, and one had come to realize that there was no point in preserving an obligation which had in actual fact been fulfilled. After all, the creditor had received what was due to him and it would have been entirely improper of him to invoke the debtor's liability. More particularly, the recognition of the informal, consensual transactions gave considerable impetus to this development; they had, of course,

56Cf. supra, pp. 3 sq. (note 13).

57Cf. supra, pp. 4 sq.

5ti Characteristically, solutio per aes et libram even in classical law still retained the formula "me a te solvo liberoque": Gai. Ill, 174. Cf. further Kaser, Altromisches ius, pp. 240 sqq.; Detlef Licbs, "Contrarius actus", in: Sympotica Franz Wieacker (1970), pp. 128 sqq.; Rolf Knutel, "Zum Prinzip der formalen Korrespondcnz im romischen Recht", (1971} 88 ZSS 73 sqq.

59See Liebs, Sympotica Wieacker, pp. 116 sqq. for details.

60On the principle of formal correspondence in Roman law, see generally Schmidlin, Rechtsregeln, pp. 74 sqq.; Liebs, Sympotica Wieacker, pp. I l l sqq.; Knutel, (1971) 88 ZSS 67 sqq.

61Kaser, RPr I, p. 634.

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never required a formal solutio in order to be discharged, and thus provided a model that could be conveniently adopted for other legal acts too.62 In the end, therefore, nearly all that survived of the old regime was the word "solutio", but it was used in the sense ot "to perform", "to fulfil" or "to satisfy" (an obligation). At least in one respect, however,63 the archaic origins lived on even in classical substantive law: for if it was accepted that any third party could make performance on behalf of the debtor (and thus discharge his obligation),64 then the historical reason for this rule lies in the fact that the person liable was literally obligated, in the sense of being put into fetters, and had to rely, in any event, on the intervention of a friend or family member for his liberation.65

3. Formal release by way of solutio per aes et libram and acceptilatio

This evolution of solutio as an informal way of terminating obligations did not, incidentally, render solutio per aes et libram and acceptilatio entirely redundant: for it was only when they were accompanied by payment of whatever was owed that the formal acts no longer fulfilled any essential function. Both of them could, however, conveniently be used where the creditor wished to release his debtor from his obligation without receiving the performance that was due to him. Solutio per aes et libram could, under these circumstances, be executed nummo uno, i.e. on a purely imaginary or fictitious basis, and in the case of acceptilatio the formal question and answer ("Quod ego tibi promisi, habesne acceptum?" "Habeo") settled the issue, no matter whether performance had in actual fact been made or not. Both institutions thus continued to be used: not in connection with solutio, but as a means of terminating obligations by way of release. Solutio per aes et libram was applicable where the obligation was based either on a transaction per aes et libram, on a judgment or on a legatum per damnationem;66 acceptilatio had to be used as far as contracts verbis were concerned: "consentaneum enim visum est verbis factam obligationem posse aliis verbis dissolvi."67 If something was due on some other ground, it first had to be recast (by way of novation) into the form of a stipulation before release by acceptilatio could be effected.68 It therefore involved but a minimum of inconvenience to make acceptilatio universally applicable.

62Cf. Kaser, RPr I, p. 634.

63For another example, see infra , p. 841, note 51. M Cf. supra, p. 752.

fiS Kaser, RPr I, p. 172.

66Gai. Ill, 173 sqq.

67Gai. Ill, 170. On acceptilatio cf. supra, pp. 685, 755.

68Gai. Ill, 170 ("sed id quod ex alia causa debcatur potest in stipulationem deduci et per acceptilationcm dissolvi").

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4. Excursus: the stipulatio Aquiliana

One of the most interesting illustrations of this combination of novatio and acceptilatio occurred in the case of the so-called stipulatio Aquiliana. Its formula had been composed by the Republican jurist Gaius Aquilius Gallus and read like this:

"[Q]uidquid te mihi ex quacumque causa dare facere oportct, oportebit . . .

quarumque rerum mihi tecum actio . . . petitio . . . pcrsecutio est erit . . . tantam pecuniam mihi dari spondes?"1'4

It covered all debts, present and future, due and not yet owing, arising ex iure civili and under praetorian law, of the particular promisor against the stipulator and replaced them by a single comprehensive stipulation. Instead of many individual sums under various different kinds of obligations, only the grand total was now owed in terms of a contract verbis. This debt was then discharged by way of acceptilatio: "Quidquid tibi hodierno die per Aquilianam stipulationem spopondi, id omne habesne acceptum?" "Habeo acceptum." Ulpian describes what happened in the following words: "Aquiliana stipulatio omnimodo omnes praecedentes obligationes novat et peremit ipsaque peremitur per acceptilationem."70 What the parties achieved through this double transaction was a kind of general settlement. They had to go through, discuss and evaluate all claims of the stipulator against the promisor, as well as those counterclaims of the promisor against the stipulator that could be used for set-off purposes. If there turned out to be a balance in favour of the stipulator, the money was either paid back immediately, in which case the acceptilatio constituted a formal, general and comprehensive receipt, or the balance could again be credited to the promisor, usually by way of a further stipulation. This had to occur after conclusion of the acceptilatio, since otherwise the latter would automatically have covered—and thus discharged—the former. In both cases the acceptilatio had the effect of protecting the promisor against any further claims on the part of the stipulator that had their origin in a legal relationship predating the stipulatio Aquiliana. In other words, the promisor owed the stipulator either nothing at all (and could always refer to the acceptilatio in that regard) or only one single and specific sum that had to be spelt out and promised in a subsequent transaction.

5. Informal release

Acceptilatio was a fairly convenient and universally applicable form of release. It did, however, require the conclusion of a stipulation. With the rise of the informal, consensual transactions, a growing demand for an informal type of release was bound, sooner or later, to make itself

69 Cf. Inst. Ill, 29, 2; Flor. D. 46, 4, 18, 1. For all details, see Sturm, Stipulatio Aquiliana, pp. 51 sqq.; cf. also Max Kaser, "Stipulatio Aquiliana", (1973) 90 ZSS 346 sqq. 7(1 D. 2, 15, 4.

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felt. Already the praetorian edict contained the clause "pacta conventa

. . . servabo",71 and we have seen72 that this referred to pacta de non petendo, on the basis of which the debtor could raise the exceptio pacti conventi against the action of the creditor.73 Moreover, in bonae fidei iudicia this exceptio was inherent74 and the judge therefore had to take cognizance of an informal release immediately and ex officio. But the pactum de non petendo referred only to an individual claim, not to the legal relationship, the contract, in its entirety. In classical Roman lav/ it was, however, recognized that even the latter could be resolved informally: as long as no performance had yet been effected (that is, "re integra"), the parties could bring any consensual contract to an end by mere agreement.75 This agreement was sometimes referred to as contrarius consensus, for instance in the following text by Paulus: "Emptio et vendito sicut consensu contrahitur, ita contrario consensu resolvitur, antequam fuerit res secuta."76 It is not difficult to see how happily this fitted the general "contrarius actus" scheme according to which the acts creating and resolving an obligation were seen as symmetrical counterparts:

"Nihil tam naturale est quam со gencre quidque dissolvere, quo colHgatum est. ideo verborum obligatio verbis tollitur: nudi consensus obligatio contrario consensu dissolvitur";77

and also: "cum re contraxerimus, re solvi debet."78

III.OTHER FORMS OF "SOLUTIO IMPROPRIA"

"Solutio propria", "in praecisa forma et specie obligationis"79 (to use the terminology of the European ius commune) has always been, and still is, the most important way of terminating obligations. Datio in solutum and release have been mentioned as two forms of what was usually referred to as "solutio impropria". But there was a whole variety of further situations which entailed the extinction of an existing obligation. Novatio was one of them: the old obligatio was translated into a new one (always a stipulation), with the effect that the former fell

71Ulp. D. 2, 14, 7, 7.

72Supra, pp. 508 sq.

73Gai. IV, 119 ("si inter Am Am et Nm Nm non convenit, ne ea pecunia peteretur"); cf.

also Gai. IV, 122 ("si inter A"1 Am et Nm Nm non convenit, ne ea pecunia intra quinquennium peteretur": the granting of indulgence, as opposed to a total release).

74Cfsupra, pp. 509 sq.

75Iul. D. 18, 5, 5, 1; Pap. D. 18, 1, 72 pr.; Ulp. D. 2, 14, 7, 6; Inst. Ill, 29, 4; Kniitel, Contrarius consensus, pp. 23 sqq. {dealing with the requirement of res integra), 102 sqq., 120 sqq., 137 sqq.

76D. 18, 5, 3. On the application of this principle to other consensual transactions, see Kniitel, Contrarius consensus, pp. 120 sqq.

77Ulp. D. 50, 17, 35.

7H Pomp. D. 46, 3, 80; on this text, see Kniitel, Contrarius consensus, pp. 10 sqq. 79Coing, p. 431.

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away ipso hire.80 Litis contestatio had a similar effect, at least as far as iudicia legitima were concerned: the original obligation was dissolved by operation of the law (ipso iure), and the defendant became bound to respect any condemnation that might ensue (condemnari oportere).81 As a result, the plaintiff was prevented from enforcing the old (now extinct) obligation a second time. Confusio brought about the end of an obligation, and so did concursus causarum. Confusio refers to the situation where the position of debtor and creditor with regard to one and the same obligation merge in one person;82 this can occur, for instance, if the debtor becomes the creditor's heir or if—conversely — the creditor succeeds his debtor. After all, it is essential for an obligation that it establishes a legal relationship between (at least) two different parties.83 Concursus causarum was the concurrence of two or more titles of acquisition concerning one specific thing in one and the same person.84 If somebody was entitled to receive delivery of a particular sedan chair by virtue of both a stipulatio and a contract of sale, one of the obligations had to fall away, for the creditor could, after all, receive delivery only once. If he had acquired the sedan-chair by traditio under the stipulation, he could not afterwards bring the actio empti for the same object; in this particular instance, that already followed from the more specific rule of "suae rei emptio non valet".85 This brings us into the vicinity of another reason why an obligation could fall away: supervening impossibility in general had that effect, provided the debtor could not be held responsible therefor. Impossibilium nulla obligatio: if performance was initially impossible, an obligation could not come into existence;86 impossibility occurring after conclusion of the contract made it fall away again.87 And as we find the former of these principles codified in § 306 BGB, so § 275 BGB still formulates the basic proposition concerning supervening impossibility in the following words:

811"Novatio est prioris debiti in aliam obligaiionem . . . transfusio atque translatio": Ulp. D. 46, 2, 1 pr.; cf. also Gai. Ill, 176 and supra, pp. 60, 634 sq.

"[E]t hoc est quod apud veteres scriptum est: ante litem contestatam dare debitorem oportere, post litem contestatam condemnari oportere, post iudicatum facere oportere": Gai. Ill, 180 (following immediately on the discussion of novatio}. On condemnari oportere, see Gunther Jahr, Litis contestatio (1960), pp. 70 sqq., 146 sqq.; Kaser, RZ, pp. 227 sq.

82Pomp. D. 46, 3, 107; Mod. D. 46, 3, 75; Frezza, Garanzie, vol. I, pp. 144 sqq.; Solazzi, op. cit., note 7, pp. 277 sqq.

83On confusio in the ius commune: Windscheid/Kipp, § 352; in South African law: Joubert. Contract, pp. 285 sq.; in modern German law: Gernhuber, op. cit., note 33, pp. 384

4 Fritz Schulz, "Die Lehre vom Concursus Causarum im klassischen undjustinianischen Recht", (1917) 38 ZSS 114 sqq.; Kaser, RPr I, pp. 643 sq.

85Pomp. D. 18, 1, 16; cf. supra, p. 241. An exception was made, however, where one of the concurring titles of acquisition was a causa lucrativa; cf. e.g. Iul. D. 30, 84, 5 and Honsell, Quod interest, pp. 38 sqq. On concursus causarum lucrativarum, see Inst. II, 20, 6; Iul. D. 30, 82 pr. and 1 and Michel, Gratuiti, pp. 404 sqq.

86Cf., for example, supra, pp. 687 sqq.

87Cf. e.g. Dieter Medicus, "Zur Funktion der Leistungsunmoglichkeit im rdmischen Recht", (1969) 86 ZSS 67 sqq.; Windscheid/Kipp, § 264.

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"The debtor is relieved from his obligation to perform if the performance becomes impossible because of a circumstance, for which he is not responsible and which occurs after the creation of the obligation."

IV. COMPENSATIO

1. Set-ofFin modern law

Much less straightforward, both in modern and in Roman law, are the rules relating to compensatio or set-off—from a purely dogmatic point of view probably the most interesting manner of terminating an obligation. Strictly speaking, set-off even affects two obligations at the same time, though one of them in many cases only partly. If A owes 200 sesterces to В and В owes 100 to A, both parties face each other in the role of debtor as well as that of creditor. If the legal system were to look at each of these claims in isolation, an unnecessarily circuitous and uneconomical procedure would ensue: A would have to give 200 to В merely to receive part of the amount back in full satisfaction of his own claim. If neither A nor В is willing to render performance, both of them would ultimately have to sue each other: two separate court cases between the same parties would be the result. It is not difficult to realize that matters can be considerably streamlined by looking at the obligational relationships between A and В as a whole. It is only by a balance of 100 sesterces that their mutual claims against each other differ, and it is only this balance that has to be transferred between them. As a result of a set-off, only В retains part of his original claim and only he can therefore institute an action against A. The other part of his claim as well as A's counterclaim can be taken to be satisfied: for where two parties have to pay 100 to each other, the legal system can just as well allow them to maintain the status quo.

Indisputably, therefore, set-off is a convenient way of satisfying mutual debts. The magna quaestio, however, is how it becomes effective. Modern legal systems deriving from Roman law essentially fall into two groups in this regard. § 388 BGB represents a good example of the one, when it states that "[t]he set-off is made by declaration to the other party".88 This rule is based on a tradition dating back to the glossator Azo.89 Both French90 and Austrian law,91 on the other hand, do not require any such declaration. As soon (and as far) as two debts capable of being set off against each other confront each

88 Cf. also art. 124 OR. 89

"[S]ed ego puto ea[m] ipso iure tune demum fieri cum a partibus est opposita . . .": Summa Codicis, Lib. IV, De compensationibus rubrica (p. 140, left column); for details, see Heinrich Dernburg, Geschichte und Theoiie der Kompensation (2nd ed., 1868), pp. 284 sq.

90Art. 1290 code civil.

91§ 1438 ABGB.

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