Definition
Recouper is an archaic legal term with two related senses:
1. (Noun — party) One who recoupes; the party asserting or exercising a right of recoupment in a legal action. That is, the defendant who reduces or defeats a plaintiff's damages claim by setting off a loss or cross-demand arising from the same transaction.
2. (Noun — action) The act or right of recoupment itself; the legal proceeding or plea by which recoupment is asserted. In this sense, recouper is effectively synonymous with recoupment as a remedy or procedural device.
The term is largely obsolete in modern usage. Contemporary practice uses RECOUPMENT to describe both the doctrine and the procedural remedy. RECOUPER survives primarily in older pleading texts and historical reports, where it appears as the older English and Law French form of the noun.
Common Language
Modern common usage (Wiktionary): One who, or that which, recoups; also, a legal action to recoup.
Historical common usage (Webster's 1913): One who recoups.
The common meaning tracks the legal meaning closely in form, but the legal term carries specific procedural weight that the ordinary word does not. In common usage, "to recoup" simply means to recover or make up a loss. In law, recouper describes a party exercising a distinct defensive remedy — reducing a plaintiff's recovery by the amount of a countervailing loss arising from the same contract or transaction — which is not the same as a general recovery or reimbursement.
Common Confusion
RECOUPER, RECOUPMENT, and SET-OFF are frequently conflated in historical sources. Recouper (or recoupment) is strictly limited to cross-demands arising from the same transaction or contract at issue in the plaintiff's claim. Set-off, by contrast, involves an independent demand that the defendant holds against the plaintiff. The distinction matters because recoupment historically required no separate pleading in some jurisdictions and could reduce a plaintiff's recovery to zero without affirmative relief to the defendant, while set-off operated differently in equity and at common law. Burrill's entry compounds potential confusion by embedding RECOUPER in the same entry with RECOVERER — a distinct term meaning the party who obtains judgment in a common recovery — which has no connection to the recoupment doctrine.
Why It Matters in Research
Researchers encountering RECOUPER in historical pleading records, equity reports, or older treatises should treat it as a variant form of RECOUPMENT rather than a distinct legal concept. The term appears most frequently in sources predating the nineteenth-century procedural reforms that consolidated common law pleading. In those sources, recouper may appear as a noun describing the right, the plea, or the party asserting it, depending on context — the same word performing three different grammatical and legal functions.
A significant trap in historical sources is Burrill's placement. His entry for RECOUPER is embedded within a sequence that runs directly into RECOVERER — a term drawn from the law of common recoveries (a conveyancing fiction used to bar entails) — which is entirely unrelated. Researchers scanning Burrill's pages may conflate these entries. Note that RECOVERER in the common recovery context refers to the party to whom a fictional judgment was rendered, not to a party asserting a recoupment defense.
The doctrine underlying recouper became substantially absorbed into modern counterclaim and affirmative defense practice under code pleading and the Federal Rules of Civil Procedure. Researchers working in post-1938 federal materials will rarely encounter the term; pre-code state court records and equity pleadings are where it surfaces. When tracing the doctrine's evolution, look for the transition from recouper/recoupment as a plea in abatement or reduction, to its incorporation into compulsory counterclaim rules.
Historical Dictionary Support
Burrill defines RECOUPER as "the old form of Recoupment," directing the reader to that entry, and cites Blackstone's Commentaries at 2 Bl. Com. 357–359. This is consistent with the term's status as a terminological predecessor rather than a doctrinally distinct concept. Burrill does not elaborate on the distinction between recouper as a party and recouper as an action, which reflects the ambiguity in older pleading literature.
Webster's 1913 adds nothing doctrinally, offering only "one who recoups" and citing Story — almost certainly Justice Joseph Story's equity writings — without further specification. Wiktionary preserves both the personal and actional senses. No major historical dictionary treats RECOUPER as a substantively independent doctrine; all sources treat it as a form or antecedent of recoupment. The historical record is consistent on this point.