Set-Off (Sometimes Termed Counter-Claim)

Effort of a defendant to set up a cause of action against a plaintiff, to the end that the judgment of the court may satisfy the claims of both at the same time; the "compensatio" of Roman law. Although there is no name for it, the principle is allowed in the jurisprudence of the Talmud; and the right of the defendant to set up his claim against that of the plaintiff in the same proceeding in which he is brought before the court, to have both claims discussed at the same time, and to have the judgment cover both of them, is nowhere directly denied.

Under Assault and Battery it has been shown that where two men have assaulted and beaten each other, the damage done to one may be set off against the damage done to the other, and judgment may be rendered for the difference only. But apart from this instance hardly any definite recognition of theright of set-off exists in the Talmud. The only passage referred to by commentators and codifiers (B. Ḳ. 46b) gives hardly more than a hint, and is to this effect: The plaintiff is always called upon first [to state and to prove his case]; but it is said later on that sometimes the defendant is called upon first when it appears that his estate would "go off cheap" [would be sacrificed]. Rashi expounds these two sayings thus: "For instance, A sues B for a mina which he has lent him before witnesses or on a bond; and B answers him, 'Thou hast seized my property; return to me what thou hast seized,' or, 'Thou hast a pledge from me in thy hand and hast converted it to thy own use.' They [the judges] turn first to A's claim and adjudge to him the mina which B owes him, and afterward they turn to B's claim to judge of the seizure or the pledge. But B's estate might be sacrificed; i.e., there are merchants who would now buy his goods at a high price, but might leave to-morrow. And as to his real estate, it might depreciate under the effect of the judgment against him, when it is seen that B is pressed; hence it is best to compel A to return the seized or pledged goods to B so that he may pay his debt out of them." In other words, the mutual claims ought to be heard at the same time when the contrary course would lead to the sacrifice of the defendant's property.

The matter is brought up in the Shulḥan 'Aruk (Ḥoshen Mishpaṭ, 24), where Joseph Caro simply copies the words of the Talmud; but ReMA, in his gloss, takes Rashi's views, assuming in addition that B is not prepared with his witnesses, and can not undertake to prove his counter-claim within the thirty days which the court regularly allows to the defendant to make his defense. He concludes that, if there is danger that B's property would otherwise be sacrificed, the court should not render judgment till B has had a chance to prove his counter-claim.

Both the Roman and the Anglo-American systems of procedure grew out of a set of writs or of formulas, and cross-actions were not provided for in these; thus it required either the equitable expansion of the old common law or of the "jus quiritum" by the chancellor or by the pretor, or the intervention of the law-making power, to provide for such a contingency; hence the remedy had its own name and its own rules. The Jewish procedure was always oral, and had no fixed forms for one or another class of actions or defenses; hence there was no name for the set-off or "compensatio," and it was treated like any other just defense.

Bibliography:

  * Bloch, Civil Process Ordnung, § 51, Budapest, 1882;
  * Eisenstadt, Pitḥe Teshubah, on Ḥoshen Mishpaṭ, 24.



W. B. L. N. D.