BGH NJW 2015, 867, Case No. VIII ZR 394/12, 24 September 2014, abstract in English in CISG Online database (CISG-Online), Abstract of Case 1884, CISG-Online 2545
BGH NJW 2015, 867, Case No. VIII ZR 394/12, 24 September 2014, abstract in English in CISG Online database (CISG-Online), Abstract of Case 1884, CISG-Online 2545
[...] Special mention is made of the BGH’s considerations on the set-off which the defendant had declared based on its claims for the repair costs for the tools. In general, set-off is not covered by the CISG, such that the rules of private international law determine which law applies to set-off. However, contrary to the prevailing view, the BGH decided that the CISG was applicable to the set-off of mutual claims which originated from the same CISG contract. The Court inferred from arts. 84(2) and 88(3) and from the synallagmatic contractual relationship as expressed in art. 58(1), second sentence, art. 81(2) CISG a general principle in the sense of art. 7(2): “Reciprocal monetary claims which are due can be set-off against each other if a party so declares.” The main claim was then extinguished in the amount of the set-off claim. The Court acknowledged this principle not only for mutual claims arising from the same CISG contract but also if they stemmed from different CISG contracts between the same parties if an overall set-off corresponded with the parties’ expressed or implied intentions. In the present case the claimant had claimed one single amount out of the different contracts and the defendant had declared the set-off against that amount. That sufficed to treat the claims and counterclaims out of the different CISG contracts as if they followed from one single contract. [...]