!!Экзамен зачет 2023 год / The Law of Obligations

other, both of them are extinguished ipso iure;92 no account is taken of the will of the two parties concerned. Again, this conception of a set-off can be traced back to the glossators.93 Down to the days of the pandectists both theories have vied for recognition,94 and thus it is small wonder that in an essentially ius commune-based jurisdiction such as the South African one the law is still unsettled in this regard.95 In some cases it has been held that set-off operates ipso iure;96 in others a declaration by one of the parties has been required.97 Support for both views can be found in the writings of the Roman-Dutch authorities.98 The reason for this age-old dispute essentially lies in Justinian's somewhat half-hearted attempts to consolidate the rules of classical Roman jurisprudence."

2.The procedural framework for set-off in Roman law

(a)Indicia bonae fidd

One of the most characteristic features of set-off in Roman law was its distinctly procedural flavour.100 Whether, and if so, in which manner and under which circumstances a set-off could be effected depended entirely on the nature of the formula applicable in a given situation. Thus, first of all, there were the iudicia bonae fidei. If a purchaser brought the actio empti, a locator the actio locati, etc., the judge was always instructed to assess "quidquid ob earn rem Nm Nm A° A° dare

92On the term "ipso iure" in this context cf. Pothier, Traite des obligations, § 635: "Cette interpretation est conform e a i'explication que tons les lexicographes donnent a ces termes, ipso iure. Ipso iure fieri dicitur, dit Brisson, quod ipsa legis potestate et aiutoritate, absque magistrates auxilio et sine exception!; ope Jit . . . Verba ipso iure, dit Spigelius, intelkgitur sine facto hominis. Ipso jure consistere dicitiir, dit Pratejus, quod ex sola legum potestate et auctoritate, sine magistrates opera consistit."

93Cf. Dernburg, op. cit., note 89, pp. 283 sq., who refers in particular to the glossator Martinus.

Cf. e.g. Dernburg, op. cit., note 89, pp. 281 sqq.; Fridolin Eiscle, Die Compensation nach

romischem undgemeinem Recht (1876), pp. 211 sqq.

95Joubcrt, Contract, pp. 288 sqq.

46Cf. e.g. Toucher v. Stinnes (SA) Ltd. 1934 CPD 184; Clark v. Van Rensburg 1964 (4) SA

153 (O); Great North Farms (Edms.) Bpk. v. Ras 1972 (4) SA 7 (T). Cf. also B.v.D. van Niekerk, "Some Thoughts on the Problem of Set-off", (1968) 85 SALj 31 sqq.

97 Hardy & Mostert v. Harsant 1913 TPD 433; Harris v. Tancred 1960 (1) SA 839 (C) at 843F-G; De Wet en Yeats, pp. 253 sq. The declaration has retroactive effect; cf. also § 389 BGB: "The set-off has the effect that the claims, insofar as they cover each other, are deemed to have expired at the moment at which, being suitable for set-off, they have first confronted each other."

48 Cf. e.g. Voet, Commentarius ad Patidectas, Lib. XVI, Tit. II, II and Grorius, Inleiding, III, XL, 7 on the one hand, Van Leeuwen, Rooms-Hoilands-Regt, IV. Bouk, XL. Deel, 2 on the other. Cf. further J.H. Loots, P. van Warmclo, "Compensatio", (1956) 19 THRHRV9 sqq. On the great and mysterious "riddle" set by the Roman sources for modern private law, cf. Lippmann. "Zur Lehre von der Kompensation nach dem Entwurfe des burgerlichen Gezetsbuches", (1893) 32 Jhjb 157 sqq.; cf. also Wladyslaw Rozwadowski, "Studi sulla compensazione nel diritto romano", (1978) 81 BIDR 76 sq. (". . . uno dci piu grande misteri nella storia delio st'iluppo delle obbligazioni romane").

Both Gaius and Justinian deal with compensatio as part of their discussion of the law of actions: Gai. IV, 61 sqq.; lust. IV, 6, 30.

Created with novaPDF Printer (www.novaPDF.com)

facere oportet ex fide bona". This entailed a complete discretion to take into account any counterclaim arising from the same transaction, and to condemn the defendant only in the difference.1U1 It did not matter whether money or another kind of performance was owed, for, due to the principle of omnis condemnatio pecuniaria, judicial assessment of a specific sum of money was required even in the latter case. The one sum could then conveniently be subtracted from the other. Unlike in modern law,102 set-off did therefore not require that the parties owed each other acts of performance of the same kind and nature. But apart from that, the Roman compensatio ex bona fide was more narrowly

circumscribed than its modern counterpart: the counterclaim had to arise ex eadem causa;103 and whether set-off was effected at all was in

the court's discretion. If, for instance, ascertainment of the counterclaim was likely to delay the proceedings unduly, the judge usually refused to take account of it. The defendant was then free to institute a separate action.104

(b) Actiones stricti turis

Secondly, the actiones stricti iuris. Their formulae did not contain such a convenient opening for the judge to consider the possibility of a set-off ex officio. Unless the parties came to a specific agreement (which could be informal)105 to set their claims off against each other, they had to sue each other separately. If, however, during the proceedings in iure (that is, before the praetor) it turned out that the defendant had a counterclaim which was both due and entailed performance of the same kind as the one expected of himself, the praetor could ask the plaintiff to reduce his claim accordingly and to limit his request for condemnation to the difference between claim and counterclaim. If the plaintiff was unwilling to do that, the praetor could refuse to grant an action (denegatio actionis). This he would, however, only contemplate either if the counterclaim was undisputed or if the defendant was able immediately to prove its existence and the amount involved: for under these circumstances the plaintiff's insistence on condemnation into the full amount of his claim could hardly be regarded as fair and proper. If, on the other hand, the praetor regarded the defendant's demand for a set-off as inappropriate, he refused to accept any such possibility (compensationem denegare)106 and pro-

"In bonae fidei autem iudiciis libera potestas pennitti videtur iudici ex bono et aequo aestimandi quantum actori restitui debeat. in quo et illud continetur ut, habita ratione eius quod invicem actorem ex eadem causa praestare oporteret, in reliquum eum cum quo actum est condemnarc": Gai. IV, 61.

102Windscheid/Kipp, § 350, 4; § 387 BGB; Joubert, Contract, p. 290.

103Gai. IV, 61.

104Kaser, RPr I, p. 645.

105Kaser, RPr I, p. 646.

106Gai. D. 16, 2, 8.

Created with novaPDF Printer (www.novaPDF.com)

ceeded to grant the action, as requested, to the plaintiff.

But what happened if the praetor was not sure about the substance of the defendant's counterclaim? It was, of course, not up to him to hear and evaluate the evidence and to pronounce upon the merits of the case; that was the task of the iudex in the second stage of the formulary proceedings. But the iudex could investigate these matters only if he was expressly instructed by the praetor to do so, and such instruction had to be part and parcel of the procedural formula granted to the plaintiff. The obvious solution, therefore, was the insertion of an exceptio into the formula. This is indeed what appears to have happened, for Justinian reports that the Emperor Marcus Aurelius had made the exceptio doli available for that purpose: ". . . sed et in strictis iudiciis ex rescripto divi Marci opposita doli mali exceptione compensatio inducebatur."107 But this is where the problems really start. It is unlikely that this passage, and with it the attribution of a set-off, ope exceptionis, to (late) classical law, are entirely spurious,108 though it is much less clear whether Marcus Aurelius really introduced a new idea or did not rather sanction an existing practice.109 If, however, the whole scheme originated in classical jurisprudence, it is very difficult to make out how it operated within the rather stringent framework of the formulary procedure. Two particularly awkward questions had to be addressed. On the one hand, a plaintiff who disputed the existence of the counterclaim in the course of the proceedings in iure could not necessarily be taken to have acted in contravention of good faith and average business decency. If the defendant was able to substantiate his claim only apud iudicem, the requirements of the exceptio doli cannot usually have been satisfied, and thus any possibility of a set-off was bound to fail. On the other hand, there was the difficulty that, depending on whether the plaintiff had acted dolo malo or not, the defendant could be condemned only into the full amount claimed by the plaintiff or had to be absolved completely. "Si in ea re nihil dolo malo A1 A1 factum sit vel fiat" was what the exceptio instructed the judge to investigate,110 and "iudex Nm Nm A° A° condemnato, si non paret, absolvito" were the two alternatives offered to him in the condemnatio. This strict all-or-nothing approach obviously entailed a grave risk for the plaintiff, for if he refused to accept the suggestion of the judge to reduce his claim by the amount of the defendant's counterclaim and if, as a result, he obtained only a formula containing the exceptio doli, he had to face the very real prospect of losing his claim altogether rather than having it cut in size.

11)7 Inst. IV, 6, 30.

108Kaser, RPr I, p. 646. Contra: Thiclmann, Privatauktion, pp. 151 sq.

109Cf. e.g. Waclaw Osuchowski, "Quelques remarques sur la 'deductio bonorum emptoris' et l'interpretation de D. 16.2.2", in: Studi in onore di Edoardo Volterra, vol. II (1971), p. 476; Rozwadowski, (1978) 81 BIDR 11 sqq., 98'sqq., 115 sqq.; Honsell/Mayer-Maly/

Selb, p. 275.

110 Gai. IV, 119.

Created with novaPDF Printer (www.novaPDF.com)

What solutions (if any) the Roman jurists found to obviate these problems, we do not know. Only speculations are possible. Thus, it has, for instance, been suggested111 that the "neque fiat" clause of the exceptio doli (in any event a powerful tool to advance the cause of equity and fairness)112 may have been taken to refer not only to cases where the bringing of the action could be regarded as an infringement of the precepts of good faith, but also to those where something in the behaviour of the plaintiff, after litis contestatio right up to the time of judgment, constituted dolus. If this was in fact the case, one could have argued as follows. In view of the exceptio doli, it was the judge's duty to establish whether the defendant had a counterclaim which could be used for set-off purposes. If he had satisfied himself that such a claim existed, he would have to ask the plaintiff to accept the balance between claim and counterclaim in full settlement of the defendant's debt. Normally the plaintiff could be expected to accede to this request. If he did, the defendant was asked to pay the balance; and once payment had taken place, the judge could absolve the defendant. This was a somewhat roundabout procedure, but in the end a set-off was effected. If, on the other hand, the plaintiff insisted on payment of the whole sum due to him (despite the fact that the existence of an offsettable counterclaim had in the meantime been established), he could now with some justification be said to have overstepped the line dividing bona fides and dolus (malus), and it was neither strange nor inequitable if the judge proceeded to absolve the defendant under these circumstances (with the result that the plaintiff lost his entire claim).

(c)Special kinds of set-off: argentarius and bonorum emptor

There was, thirdly, however, one actio stricti iuris where an automatic set-off was already built into the formula. A banker (argentarius) who sued his customer was granted a formula with the following intentio: "Si paret Nm Nm A° A° HS X milia dare oportere amplius quam As As № № debet. . . ,"113 It required the banker to establish his customer's

counterclaims and to reduce his own claim accordingly, for his action was limited to the balance due to him ("amplius quam").114 The range

of counterclaims that had to be taken into account was not limited to those arising ex eadem causa; it was sufficient that things of the same kind and nature were the object of both claim and

111 Kaser, RPr I, p. 646; for different suggestions and further discussion, see Paul van Warmelo, "Le rescrit de Marc-Aurele a propos dc la compensation", in: Melanges Henri

Leiiy-Bruhl (1959), pp. 335 sqq.; Siro Solazzi, La compensazione nel diritto romano (2nd ed., 1950),

pp.97 sqq.; Rozwadowski (1978) 81 BJDR 11 sqq.

"Cf. supra, pp. 667 sq.

p. 273.

Created with novaPDF Printer (www.novaPDF.com)

counterclaim115—usually, of course, we are dealing here with money. In drawing up the balance, the banker had to be extremely careful, for if it turned out, apud iudicem, that he had claimed too much (albeit only a farthing),116 he lost his entire claim: ". . . si facta compensatione plus nummo uno intendat argentarius, causa cadat et ob id rem perdat."117 Such was the harsh consequence of pluris petitio:118 the judge could condemn only into exactly the sum that the plaintiff had asked for; alternatively, he had to absolve the defendant. After all, a defendant who in actual fact owed 99 could not be said to owe the sum of 100, which a plaintiff might have claimed erroneously.

Finally, there was a special kind of set-off operating with regard to debts due to an insolvent estate. Whenever a bonorum emptor (that is, the purchaser of the property of an insolvent debtor) instituted an action, he had to do so "cum deductione": he had to deduct from his claim whatever he himself owed to the defendant by virtue of having become the insolvent person's successor.n9 In IV, 65-68 Gaius compares agere cum compensatione of the argentarius with agere cum deductione of the bonorum emptor, and notes three main differences: it was not in the intentio but only in the condemnatio of the formula that account was taken of deductio (which meant that the bonorum possessor was not faced with the dire consequences of pluris petitio); deductio did not operate only where performances of the same kind and nature were the object of both claim and counterclaim, but allowed a set-off even of "quod non est eiusdem generis";120 and it also operated with regard to counterclaims that had not yet fallen due.

3.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).121 Sometimes claim and counterclaim had to relate to performances of the

115Gai. IV, 66.

116De Zulueta's translation of nummus unus in Gai. IV, 68.

117Gai. IV, 68.

118On pluris petitio cf. Gai. IV, 53 sqq.; Guiscppe Provera, La pluris petitio nel processo romctno, vol. I (1958); Kaser, RZ, pp. 246 sqq.; Guiscppina Sacconi, La "pluris petitio" nel processo formutare (1977); for the later history c(. Wolfgang Wiegand, Pius petitio (1974).

119Gai. IV, 65; cf. further e.g. Solazzi, op. cit., note 111, pp. 65 sqq.; Thielmann, Privatauktion, pp. 168 sqq.; Osuchowski, Studi Votterra, vol. II, pp. 461 sqq.; for details of

the procedure, see Kaser, RZ, pp. 310 sqq. 12h Gai. IV, 66.

121 Discretion of the judge! (Cf. supra, p. 762.)

Created with novaPDF Printer (www.novaPDF.com)

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 Postclassical 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

122Using "compensatio" as a terminus tcchnicus; for all details, see Solazzi, op. cit., note 111, pp. 191 sqq.

123Cf. e.g. Levy, Obiigationenrecht, pp. 145 sqq.; Solazzi, op. cit., note 111, pp. I l l sqq.,

142 sqq.

124Cf. e.g. Kaser, RPr II, pp. 333 sqq.

125The plaintiff, as a consequence of the pluris petitio, merely incurred the penalty of a threefold reimbursement of his opponent's expenses ("in triplum restituat damnum, quod ipsius culpa adversario contigit"): C. 3, 10, 2 (lust.); cf. also Inst. IV, 6, 24 and Francesco

Sitzia, "Su una costituzione di Giustiniano in tema sportulae", (1972) 75 BIDR 221 sqq. 126 Inst. IV, 6, 30.

Created with novaPDF Printer (www.novaPDF.com)

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 iudicia.127 On the other hand, however, the performances owed under claim and counterclaim now had to be of the same nature:128 this was a consequence of the fact that the principle of omnis condemnatio pecuniaria had been abandoned in post-classical procedure129 and that thus not every claim ultimately led to a condemnation to pay a certain sum of money.130

(b) Set-off in the Corpus Juris Civilis

How did Justinian's compensation work? ". . . ut actiones ipso iure minuant" say the Institutes,] 3 { and in the Codex, too, it is emphasized that "[cjompensationes ex omnibus actionibus ipso iure fieri".132 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")133 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.134 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.

V. EXTINCTIVE PRESCRIPTION

Some modern legal systems recognize a further, practically very dangerous, threat to the life of obligations: the lapse of time. South African law provides a good example. According to § 10 I of the Prescription Act 68/1969, debts are extinguished (as a rule) three

127Kaser, RPrl, pp. 646 sq.

128Cf. e.g. Loots/Van Warmelo, (1956) 19 THRHR 181.

129For details, see Kaser, RZ, pp. 498 sq.

Modern German law requires that the performances arc of the same kind and nature and that the claim of the person declaring the set-off is due; claim and counterclaim need not have arisen ex eadem causa. Cf. § 387 BGB; also Windscheid/Kipp, § 350, 3 and 4, and (for South Africa) Joubert, Contract, pp. 290 sq. On the requirement of liquidity of the counterclaim cf. Windscheid/Kipp, § 350, 5; "Motive", in: Mugdan, vol. H, p. 58. According to § 393 BGB, set-off is not permissible against a claim arising from a wilful delict. This is a generalization of a rule contained in C. 4. 31, 14, 2; c(, "Motive", in: Mugdan, vol. II, p. 62.

131IV, 6, 30.

132C. 4, 31, 14; cf. also С 4, 31, 4 (Alex.); Paul. D. 16, 2, 4; Paul. D. 16, 2, 21 (all

interpolated).

C. 4, 31, 14, 1; cf. further Solazzi, op. cit., note l i t , pp. 166 sqq.; Loots/Van Warmelo, (1956) 19 THRHR 178.

134 Cf. Rozwadowski, (1978) 81 BIDR 11 sqq., 98 sqq.

Created with novaPDF Printer (www.novaPDF.com)

years135 after they have become due.136 In certain cases prescription may be interrupted137 or its completion may be delayed,138 but under normal circumstances a creditor may be expected to pursue (and, if necessary, enforce) his claims within a reasonable period. The reason lies, as Windscheid/Kipp139 somewhat romantically describe it, in the obfuscating power of time: as the years pass by, it becomes more and more difficult for the debtor to defend himself.140 He may no longer be able to remember and to prove those circumstances which thwart the plaintiff's claim. More particularly, he can hardly be required to keep all his receipts indefinitely; yet, without them it may be impossible for him to establish that he has already satisfied the claim. Prescription141 thus provides the debtor with a convenient all-round protection against the claims of a creditor who has shown little interest in pursuing them. O? course, prescription is somewhat of a double-edged sword, for it affects unfounded as well as justified claims. But that is a price most modern legal systems are prepared to pay: long dormant claims, as a rule, "have more cruelty than justice in them".142 Not all modern legal

135Exceptions: 30 years for debts secured by mortgage bond, judgment debts and some others, 15 years for certain debts owing to the State and six years for debts arising from a bill of exchange or other negotiable instrument. For details, see § 11 of the Prescription Act.

136In Scotland, too, prescription has the effect of extinguishing the obligation. The (regular) prescription period is, however, 5 years (§ 6 of the Prescription and Limitation (Scotland) Act 1973). For details, see David M. Walker, The Law of Prescription and Limitation of Actions in Scotland (3rd ed., 1981).

137The effect of an interruption of prescription is essentially chat the prescription begins to run afresh on the termination of the interruption; the time that has elapsed before the interruption is not taken into consideration. Cf. also § 217 BGB. Example: acknowledge

ment of liability by the debtor.

nH In other words, prescription is suspended for some time. The period of prescription is

lengthened by the period during which the prescription is suspended. Cf. also § 205 BGB. Example: the creditor is a minor, or the debt is subject to a dispute submitted to arbitration.

15y § 105: "Die Zeit ist eine Machl, der sich kein menschliches Cemiit entziehen kann; . , . [siej heiligt nicht bloss, sie verdunkelt anch." According to Savigny, System, vol. V, p. 272, prescription is one of the most important and beneficial ("woltlthdtigsten") legal institutions.

14(1 On the purposes and functions of prescription, sec Karl Spiro, Die Begrenzung privater Rechte durch Verjdhmngs-, Verwirkungsund Fatalfristen, vol. I (1975), §§ 3 sqq.

141 We are, of course, dealing here only with what is often also referred to as "extinctive" (or negative) prescription (as opposed to "acquisitive" (or positive) prescription, e.g. usucaption). Following the tradition of the (older) ius commune (for the 19th century, cf. Savigny. System, vol. IV, pp. 309 scjq.), the South African Prescription Act 68/1969 still deals with both kinds of prescription. So does the Scottish Prescription and Limitation Act 1973. Ct. generally Karl August Dominik Unterholzner, Theodor Schirmer, Ausfiihrliche Etitwickelung der gesammten Verjahmrujslehre aus den gerneinen in Deutschland gehetiden Rechten

(2nd ed., 1858); Windscheid/Kipp, § 105; J.C. de Wet (the "father" of the South African Act) "Verjaring", in: Opuscula Miscellanea (1980), pp. 77 sqq.; Walker, op. at., note 136. Modern legal systems generally do not require good faith on the part of the debtor; extinctive prescription, in other words, is based merely on the lapse of time, not on whether or not the debtor knew that he was obliged to pay. The opposite view had been adopted by the canon lawyers; cf. also still § 569 I 9 PrALR and Windscheid/Kipp, § 111. ТЫ canon lawyers, in so far, had merely extended to extinctive prescription what had always been recognized with regard to acquisitive prescription (usucapio).

4A2 R.B. Policies at Lloyd's v. Butler [1950] 1 KB 76 at 82, quoting Best CJ in A 'Court v. Cross (a)

(1825) 3 Bing 329 at 332. German courts often tend to relax the rules of prescription in

Created with novaPDF Printer (www.novaPDF.com)

systems, however, regard a debt which has prescribed as extinct. According to § 222 I BGB, for instance,143 the debtor is entitled to refuse performance after the period of prescription has expired. The obligation thus continues to exist but the person bound by it is granted a peremptory defence. Yet the difference between these two constructions of prescription is largely of a technical nature. Even in South African law, prescription has to be raised in court by the defendant; the court cannot of its own motion take notice of the fact that the debt has fallen away.144 Also payment in satisfaction of a claim which has prescribed is—rather irregularly—not regarded as indebitum solutum and may therefore not be claimed back.145 Hence in practice, both under the South African system of a "strong" prescription and under the "weak" approach adopted by the BGB, it is up to the debtor either to render performance or to invoke the rules of prescription; if he decides to do the latter, the creditor has lost any possibility of enforcing his claim.

Much more important is the difference in the actual periods of prescription. According to § 195 BGB, the regular period of prescription is 30 years.146 As so often, this provision of the German Code only restates a rule of the European ius commune. It ultimately derives from the praescriptio longi temporis, introduced by the Emperor Theodosius II in A.D. 424 for all actiones perpetuae, i.e. for claims which had hitherto not been subject to any temporal

order to alleviate the hardship undoubtedly connected with the fact that the creditor may lose a well-founded claim (and is therefore, in a sense, expropriated). Much less attention lends to be focused on the many cases in which strict application of the prescription rules prevents unjustified claims from being (successfully) pursued. For a comparative overview of modern legislation dealing with extinctive prescription cf. Peters/Zimmermann, Verjahrungsfristen, pp. 267 sqq.; cf. also the stimulating analysis by M.M. Loubser, "Towards a Theory of Extinctive Prescription", (1988) 105 SALJ 34 sqq.

' A model for what is usually referred to as the "weak" torm of prescription. Cf. also art. 142 OR.

144 § 17 I Prescription Act; cf. also art. 2938 codicc civile, read together with art2934 I. 14" § 10 HI Prescription Act; in the same sense § 222 II BGB and art. 2940 codice civile. l4'' Exceptions: certain claims (exactly specified in 17 numbers) arising—broadly

speaking—from transactions of daily life (2 years; § 196 BGB), claims to arrears of interest, of rents, annuities, salaries, etc. (4 years; § 197 BGB); the actiones quanti minoris and redhibitoria in their modern version (6 months and 1 year; § 477 BGB); warranty claims in the case of the sale of livestock (6 weeks; § 490 BGB); certain claims for compensation arising from a contract of lease (6 months; § 558 BGB); warranty claims arising from a contract for work (6 months, 1 year, 5 years; § 638 BGB); claims arising from delict (3 years; § 852 BGB); and many more both in other parts of the BGB and (particularly) outside the BGB: for all the details, see Peters/Zimmermann. Vcrjdhrungsfristen, pp. 106 sqq., 148 sqq. So numerous are the exceptions that one may well doubt whether the 30 years of § 195 BGB can still be said to be the "regular" period of prescription. But despite a certain tendency of the courts to restrict the field of application of § 195 even further, this rule still covers a variety of practically very important claims; cf. Peters/Zimmermann, Verjahrungsfristeti, pp. 189 sqq. More progressive than the German is the Swiss codification, according to which the regular prescription period is 10 years: art. 127 OR and cf. Spiro, op. cit., note 140, §§ 331 sq.: the same applies in Italy (art. 2946 codice civile).

Created with novaPDF Printer (www.novaPDF.com)

limitation.147 Whatever its merits in the (also not-so-tranquil) circumstances of the 5th century, a prescription period of 30 years is totally unsuitable for times in which history appears to have "accelerated" in an entirely unprecedented manner; it is so long that it completely frustrates the aims sought to be achieved with periods of prescription.148 A radical readjustment (which would at the same time obviate the countless problems arising from the number and diversity of exceptios from the "regular" period)149 is urgently required.150

VI. EXCURSUS: THE PROBLEM OF SPECIFIC PERFORMANCE

1. Condemnation or absolution

We have repeatedly referred, in this chapter as well as in previous ones, to obligations being "enforceable" and to the creditor having to "pursue" his claim against his debtor. What exactly did this entail? It was a significant (and lasting) advance of legal culture that a creditor, already in pre-classical times, could no longer take the law into his own hands and resort to self-help.151 Instead, he had to go to court in order to establish his claim in accordance with the rules of civil procedure. Under the formulary system of classical law he first had to ask the

147 C. 7, 39, 3, 1. Classical Roman law did not know a general law of prescription; most actions could be brought at any time. Exceptions existed with regard to praetorian penal actions (cf. Gai. IV, 110; Paul. D. 44, 7, 35 pr.; Kaser, RPr I, p. 613) and the actiones rcdhibitoria and quanti minoris (cf. supra, pp. 317 sq.). The lack of prescription accentuated the importance of institutions such as the stipulatio Aquiliana. On the development of longi temporis praescriptio in Roman (provincial) law (first of all as a form of acquisitive prescription), see Dieter Norr, Die fcntstehung der longi temporis praescriptio (1969); on its postclassical (Theodosius II) extension to all actiones perpetuae (in the form of extinctive prescription), see Mario Amelotti, La prescrizione delle azioni in diritto romano (1958), pp. 211 sqq. For an overview cf. also Kascr, RPr I, pp. 424 sq.; RPr II, pp. 71 sq.; Peters/ Zimmermann, Verjahmngsfristen, pp. 112 sq.

14M Of the other extreme (prescription period so short that creditor is unreasonably prejudiced in the pursuit of his claim) § 638 BGB provides a good example: the claim of the customer for removal of a defect in the work and his claims for cancellation, reduction, or compensation on account of the defect are barred by prescription in six months, unless the contractor has fraudulently concealed the defect. Since prescription begins to run from the acceptance of the work, the claims may be prescribed before the defect has become apparent. For details, see Petcrs/Zimmermann, Verjahmngsfristen, pp. 187 sqq., 206 sqq., 226 sqq. The same problem arises with regard to § 477 (covering the law of sale).

149 Cf. e.g. Petcrs/Zimmermann, Verjahrungsfristen, pp. 196 sqq.

1э(1 For a set of concrete proposals, see Peters/Zimmermann, Verjahrungsjristen, pp. 285 sqq., 315 sqq.; for a discussion, see Helmut Heinrichs, "Reform des Verjahrungsrechts?", 1982 Neuejuristische WocUemchrift 2021 sqq.; cf. also the comments by the Minister ofjustice, Hans A. Engelhard, "Zu den Aufgaben ciner Kommission fur die Uberarbeitung des Schuldrechts", 1984 Neuejuristische Wochenschrift 1201 sqq., 1205 sq.; Loubser, (1988) 105 5- 4L/34 sqq., 52 sq.

For the historical development cf. Kaser, RZ, pp. 19 sqq.; idem, RPr I, p. 222. There were, however, some exceptional cases where self-help remained admissible, as is evident, especially, from the interdicta uti possidctis, utrubi and unde vi. For details, see Kaser, loc. cit.

Created with novaPDF Printer (www.novaPDF.com)