Offsetting ( compensation ) occurs in the law of obligations if two legal entities owe each other similar services (especially money ) and at least one legal entity declares the other to offset these services through a unilateral declaration of intent that requires receipt .
Offsetting 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 debtor to that legal entity from another contractual relationship . 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 . Offsetting leads to the fulfillment of claims that the same legal subjects are entitled to against each other.
For the classics of Roman law , offsetting ( compensatio ) was part of 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. According to Paul , whoever asked for something, which he had to grant back immediately ( dolo agit, qui petit, quod redditurus est ), behaved fraudulently . Paying back and forth a sum of money in a two-person relationship was taken for granted. Only later did the claim expire either through fulfillment ( solutio ), i.e. effecting the owed performance to the creditor, but also through the unification of debt and claim in one hand ( confusio ) or through offsetting. The Roman bankruptcy trustee had the right of set-off, which is still today in § 94 f. InsO is anchored.
As a way of repaying mutual debts, offsetting first appeared in the medieval Roman Brachylogus (III, 18), around 1100. Two doctrines were later solidified by glossators that dealt with the origins of offsetting. According to Martinus Gosia (before 1166) it was created by law as a legal set-off ( ipso jure compensantur ) or , according to Azo Portius (before 1220), through unilateral contractual set-off ( ope exceptionis compensantur ). Martinus wanted to automatically expire the demands at the moment they were faced; someone had to explain the set-off for Azo.
The Middle High German word offsetting ("uffrechnunge") appeared for the first time in 1372. In the late Middle Ages, the ability to offset depended on the connection (origin from the same legal relationship), later also on the mutual maturity and provability. The Codex Maximilianeus Bavaricus Civilis of January 1756 used the term "compensation", the Codex Theresianus of 1766 already spoke of offsetting.
The General Prussian Land Law (APL) of June 1794 dealt extensively with offsetting, but again called it "Compensation": "... The cancellation of liabilities, which takes place through mutual offsetting of what one owes the other, is called compensation "(I 16 § 300 APL). The APL opted for a statutory offsetting situation (I 16 § 301 APL). The Badische Landrecht of 1810 already spoke in sentence 1297 of the offsetting of several debts of a debtor. The Austrian ABGB mentioned “compensation” in its legal definition , but § 1441 ABGB used the German word offsetting. Only after 1876 did offsetting prevail as a term against "compensation".
Offsetting is a structuring transaction and can be declared unilaterally as a fulfillment surrogate by a contracting party as a declaration of intent requiring receipt, but in practice the offsetting contract often occurs. With the offsetting agreement, the contracting parties aim to repay existing or future claims by offsetting. "Offsetting does not serve the purpose of providing the debtor with clarity about the performance request, but is a surrogate for performance."
The law places certain requirements on the receivables / liabilities to be offset. According to BGB , they must be of the same type , according to BGB, the declaration of set-off must not be dependent on a condition or time , the claims do not need to be the same amount according to BGB and must not be subject to objections ( BGB). Are the demands aufzurechnenden unequally high, offsetting only has the consequence that the requirements go to the extent in which they are at the time of offsetting is covered have. Claims from tort or unpfändbare claims are not be set off ( BGB, BGB). The claims must be mutual , so it can only be offset against a claim that the debtor is entitled to against the obligee. In addition, only receivables due can be compensated.
In the economy, numerous forms of offsetting have developed due to the frequent payment transactions between the various economic entities, which either legally follow offsetting or are to be assessed economically as offsetting.
Offsetting plays a major role in daily practice for non-banks . In the opinion of the Federal Court of Justice (BGH), the current account of German Commercial Code (HGB ) is based on an agreement in which the mutual claims and services are "to be settled by contractual offsetting". Non-banks also make use of the group the Group clearing as off intragroup receivables and payables between parent ( holding ) and subsidiaries . With the group offsetting clause, third party offsetting with group-internal receivables / liabilities is made possible under the condition of the reciprocity requirement of the dispositive § 387 BGB. In the case of compensation transactions ( English countertrading ) goods are mutually delivered and offset, with the fractional amounts being settled in cash. This monetary compensation distinguishes them from the exchange contract , which requires an exchange of goods of equal value.
In banking , clearing and netting are based on offsetting. Clearing as a generic term is a process whereby financial institutions present and exchange data and / or receipts about transfers of money or securities to other financial institutions in a single location (the clearing house ). In banking operations, netting is any method to reduce payment , foreign currency , credit or liquidity risks vis-à-vis one or more counterparties through the use of bilateral or multilateral settlement algorithms. The participants in multilateral netting assign their claims to a central counterparty . Real-time gross settlement systems such as RTGS are clearing procedures, but in the absence of prior offsetting they are not netting procedures.
Offsetting in the process (process offsetting)
The set-off can also be used for defense in the process . It then has a dual nature and is at the same time a material legal transaction and a litigation . Insofar as a decision is made on the set-off, the decision on the set-off claim becomes legally binding ( (2 ) ZPO ). The set-off can also only take place in the event that the claim is not already unfounded for other reasons. Then one speaks of an auxiliary offset (contingent offset).
Offsetting with a statute-barred counterclaim
The set-off claim must not be opposed to any objection . However, a special regulation applies to the statute of limitations . The statute of limitations does not exclude offsetting if the offsetting claim was not yet statute-barred when it was first possible to offset ( BGB).
Offsetting in social law
As a special form of set-off, there is in the area of social law the settlement . It is regulated in SGB I. It enables a social service provider to offset their own payment obligations with claims from another social service provider against the recipient of the benefit if they have been authorized by them and the other offsetting requirements are met. What is special about the set-off is that, as an exception, no reciprocity is required between the main claim and the set-off claim. This exception is justified by the fact that the purely organizational splitting of the social security systems into independent bodies and institutions should not benefit the debtor.
The somewhat older businessman A runs a small business and employs two people. When business is not going so well, he is in arrears with the health insurance ( collection point ). Finally, he gives up the business and applies for his old-age pension without having paid the arrears. Now the pension insurance can offset the pension payment against the arrears contribution claims of the health insurance company, if it is authorized by the health insurance company.
As a rule, up to half of the social benefit can be offset. This does not apply if the debtor can prove that he can no longer earn his living through the offsetting and must apply for benefits such as social benefits , basic security or unemployment benefit II . The burden of proof here lies with the debtor. Proof must be provided by a so-called certificate of need from the social welfare agency. It should also be noted that neediness can never arise retrospectively and therefore half of the arrears payment can always be offset in the event of any additional payments (such as additional pension payments). An objection has suspensive effect in accordance with SGG .
In the social law settlement dispute between the hospital and the health insurance company, the Federal Social Court has approved the practice of offsetting disputed claims of the health insurance companies against undisputed claims of the hospitals: the will to offset is also sufficiently evident in the case of collective bills. If there are several claims, the general rules of the BGB apply in order to determine a repayment sequence.
Offsetting in tax law
Sections tax liability relationship and for offsetting against these claims , unless otherwise specified. The taxpayers can only offset claims from the tax liability relationship with undisputed or legally established counterclaims ( AO). A set-off by the tax office can be explicitly referred to as such or as a rebooking , can also be combined with a tax assessment and does not constitute an administrative act. This means that the set-off declaration is not published in accordance with Section 122 (2) AO. Rather, disputes in the survey procedure are decided by means of a billing notice. An objection can be filed against this, but not against the declaration of set-off. The particular advantage of offsetting is that it even overwrites the earlier seizure , as offsetting works back in time to the point in time of the offsetting situation. A special form of offsetting is the offsetting or offsetting contract, with which the credit of a third party is used to repay the tax liability.to 396 of the German Civil Code (BGB) apply mutatis mutandis for offsetting with claims from the
The bankruptcy law expressly recognizes existing offsetting situations. If a creditor is entitled to offset by law or on the basis of an agreement at the time the insolvency proceedings are opened, this right is not affected by the procedure pursuant to Insolvency Act (InsO). Therefore, the group offsetting clause is also to be regarded as legally effective.
Exclusion of set-off
The effectiveness of a set-off presupposes the lack of an exclusion of the set-off. Offsetting can be excluded by law or by contract. In practice, the legal grounds for exclusion in §§ 392–395 BGB are in the foreground (, , , BGB).
The two medieval doctrines can still be found in European law today. 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 (§ 388 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.
- Staudinger Commentary on the Civil Code with Introductory Act and subsidiary laws . Book 2, Law of Obligations, §§ 362–396: Fulfillment, deposit, set-off , author: Julius von Staudinger ; Karl-Heinz Gursky ; Dirk Olzen ; Editor / Editor: Manfred Löwisch , Sellier-de Gruyter, , ISBN 978-3-8059-1203-7 .
- Enno Kinski: Offsetting by the tax office in the insolvency of the taxpayer , Cologne, Berlin, Munich: Heymann, 2006, ISBN 3-452-26371-1 .
- Guido Karl Noltze: Offsetting and process , University of Bonn, dissertation 2000, published as a university publication 2000, number 166105188 (OCLC).
- Ralph von Olshausen: The SEPA direct debit: Fulfillment - Offsetting - Insolvency , University of Bonn, Dissertation 2013/14, Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-153924-4 .
- 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
- Prussian Academy of Sciences (ed.), German Legal Dictionary , Volume I, 1914, Col. 922
- Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 215
- Maximilianeus Bavaricus Civilis, 1756, IV 4 § 14
- Badisches Landrecht, 1810, p. 348
- Fridolin Eisele, Compensation according to Roman and common law , 1876, p. 391
- Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 106
- Joachim Gernhuber, The fulfillment and its surrogates , 1994, § 14 I. 1
- BAG, judgment of February 1, 2006, Az .: 5 AZR 395/05 - NJOZ 2006, 3373, 3376
- BGHZ 27, 123
- BGHZ 93, 307 , 313
- Klaus Peter Berger, The Offsetting Contract , 1996, pp. 40 ff.
- Ad Hoc Working Group for EC Payment Systems (Ed.), Payment Systems in the EC Member States , 1993, p. 496
- Klaus Peter Berger, The Offsetting Contract , 1996, p. 22
- BSG, judgment of October 25, 2016, Az .: B 1 KR 9/16 R - cf. Krahnert, Inpatient billing: BSG approves the practice of billing by health insurance companies , judgment discussion, accessed on February 2, 2017
- FG Münster, judgment of April 8, 2008, Az .: 11 K 6309/02, EFG 2008, 1597
- Rainer M. Bähr / Stefan Smid, The case law of the BGH on the new insolvency regulation 1999-2006 , 2006, p. 192
- 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