Offsetting (Austria)

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Offsetting (compensation) is a legal term from the law of obligations . Offsetting results in the cancellation of a claim by a counterclaim. According to its legal nature, it is a so-called performance surrogate (that means in this context: The originally intended exchange of services does not take place, but the claims from the contractual relationship expire, insofar as they are opposed), as well as a unilateral disposition transaction ( design transaction ).

Lapse of an obligation

A distinction can be made between mutual and unilateral offsetting:

Consensual offsetting

Freedom of contract exists for the agreed set-off; any claims can be extinguished by compensation.

Unilateral offsetting

A unilateral set-off exists if a claimant declares the set-off (declaration of set-off). An "ipso iure compensatur", that is, an automatic set-off, does not take place; it needs to be explained.

The following requirements apply here:

  • Reciprocity ; the creditor of one claim must be the debtor of the other (set-off) claim or vis versa.
  • Maturity ; Claims that are not due can only be offset in exceptional cases, for example when early performance is possible.
  • Actionability ; it can with not offset the demand of a natural obligation, to such but already ( "with" means that the person who explains the offsetting his is not entitled to demand against the other from a natural obligation; vice versa, so "against" a Claims from a natural bond are unproblematic).
  • Identity : the respective opposing claims must be of the same "type and quality" (otherwise every synalagmatic contract could be "fulfilled" by offsetting). Claims for money are unproblematic because they are always the same.
  • Offsetting prohibitions
    • agreed , whereby the ineffectiveness in consumer business and in the event of bankruptcy is to be observed.
    • statutory: In the case of unauthorized (e.g. theft) or cunning (e.g. fraud) confiscated, borrowed (loan), custody or inventory, offsetting for the thief etc. is excluded.

The offsetting acts back to the point in time of the first offsetting - i.e. fulfilling the above requirements - confrontation (default (interest) result).