The set-off presupposes that a legal entity ( private household , company , the state with its subdivisions) is the debtor of another legal entity, which in turn is a creditor to this legal entity from another obligation . So there are mutual claims and liabilities . Each of the participants would have to pay their own debt and would also receive a payment from the other. The offsetting is therefore based on the idea that a redundant double benefit can be avoided by paying back and forth between contracting parties . The set-off leads to the fulfillment of claims that the same legal subjects are entitled to against each other.
The classics of Roman law initially included offsetting ( Latin compensatio ) as procedural law . Gaius reported in his institutions in the 2nd century that the judge in the process was allowed to set off claims against each other. In the opinion of Julius Paul behaved fraudulently (who demanded something he had to give soon back Latin quod est redditurus dolo agit, qui petit, ). Paying back and forth a sum of money in a two-person relationship was still a matter of course. Only later did the claim expire either through fulfillment ( Latin solutio ), i.e. effecting the owed performance to the creditor, but also through the unification of debt and claim in one hand ( Latin confusio ) or by offsetting. The Roman bankruptcy trustee had the right of set-off, which is still today in § 94 f. InsO is anchored.
Offsetting appeared for the first time as a method of repaying mutual debts in the medieval Roman Brachylogus (III, 18), which appeared around the year 1100. Two doctrines that dealt with the origin of set-off were later consolidated by glossators . According to Martinus Gosia (before 1166) it was created by law ( Latin ipso jure compensantur ; legal offsetting) or according to Azo Portius (before 1220) by unilateral declaration ( Latin ope exceptionis compensantur , contractual offsetting). Martinus wanted to automatically expire the demands at the moment they were faced; someone had to explain the set-off for Azo. These two doctrines can still be found today in the positive legal regulations of individual states.
Offsetting occurs by law in France (Art. 1290 Code civil ), Italy (Art. 1242 Codice civile ), Spain (Art. 1202 Código civil ) or Austria ( ABGB ), by the will of the parties in Germany ( BGB ) or Switzerland ( OR ). The legal definition of § 1438 ABGB reads: “If claims meet each other, which are correct, of the same kind, and are of such a nature that something that is due to one as a creditor can also be paid by the other as a debtor; This creates, insofar as the claims balance each other, a mutual cancellation of liabilities (compensation), which already results in mutual payment. ”According to ABGB, a debtor“ cannot offset his creditor for what he does to a third party and the third party has to pay the debtor ".
In common law, offsetting effects can be brought about by a court judgment or, in exceptional cases, by contractually agreed offsetting. At trial, there is the objection of set-off ( English set off ), which can lead to dismissal, and the counterclaim ( English counterclaim ). The contractually-induced offset ( English set contractual off ) occurs where the right to set off on an agreement dating back without this but a set-off would not be possible. Related claims that are closely related to each other can be offset against each other ( English transaction set off ); The current account relationship ( English current account set off ) and offsetting in bankruptcy ( English retainer set off ) are also possible.
Legal situation in individual states
- Matthias N. Kannengiesser: Offsetting in international private and procedural law: with a comparative presentation of selected European offsetting rights . Mohr Siebeck, Tübingen 1998.
- Ingo Janert: Offsetting in international contract law . Lang, Frankfurt am Main 2002.
- Klaus Peter Berger, The Offsetting Contract , 1996, p. 62
- Gaius, Institutiones , 4, 61, 63
- Iulius Paulus, Digesten , 50, 17, 173
- Heinrich Dernburg , History and Theory of Compensation , 1868, p. 15 f.
- Herennius Modestinus , Digesten , 46, 3, 75
- Digest 16, 2
- Fridolin Eisele, Compensation according to Roman and common law , 1876, p. 391
- Glossator ad. 1.4, cod. Htv ipso jure
- Matthias N. Kannengiesser, Offsetting in international private and procedural law , 1998, p. 57
- Matthias N. Kannengiesser, Offsetting in international private and procedural law , 1998, p. 58