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transnational law transnational law (lex mercatoria or international business law) and "Set-off" 2016-03-01 13:58:16 https://www.trans-lex.org/img/logo_ball.png
Principle

No. III.1 - Set-off

(a) If two parties have claims against each other (reciprocal claims) that are of an identical nature, each party may set-off its claim against the other party's cross-claim, provided the party making use of its right to set-off is entitled to demand the other party's performance under its claim and is entitled to effect performance under the other party's cross-claim.

(b) If the parties have reciprocal claims in different currencies, a party may exercise its right of set-off, provided that both currencies are freely convertible and the parties have not agreed that the party making use of its right of set-off shall pay only in a specified currency.

(c) The right to set-off reciprocal claims is effected by notice to the other party. The notice must specify the reciprocal claims to which it relates.

(d) A claim in relation to which the period of prescription has expired may nonetheless be set-off by the creditor, unless the debtor of that claim has invoked prescription prior to the notice of arbitration.

(e) Set-off extinguishes the reciprocal claims up to the amount of the lesser claim as from the time of notice.

(f) A notice pursuant to para. (c) above is ineffective if the contract out of which the cross-claim arises contains an explicit or implicit (e.g. a "net cash against..." clause) prohibition of set-off or if set-off is prohibited by the applicable law.

(g) The parties may also effect set-off of reciprocal claims irrespective of the requirements under para. (a) above by contractual consent.

Commentary
1 The right to set-off reciprocal claims is based on the idea that it would be against good faith if a creditor requires performance of an obligation from his debtor if the creditor would have to return immediately what he has received from the debtor because that debtor has a cross-claim against it (“dolo agit, qui petit, quod statim redditurus est”).

2 The requirements for set-off are a natural consequence of the specific nature of this legal right. Set-off first requires reciprocal claims existing between two parties. With respect to these reciprocal claims, set-off has a dual function. With respect to the claim of the party making use of its right of set-off, it is a means of private enforcement. For that reason, the other party's obligation under that claim must be due, i.e. the off-setting party has the right to demand performance and the other party has no defence against that request. In other words, private enforcement of the claim by way of set-off cannot be imposed on the other party if the party declaring the set-off would not be entitled to performance by the other party under the claim absent the set-off. With respect to the cross-claim of the other party, set-off is a means of performance by the party declaring the set-off. In case of claims for the payment of money, the other party does not receive the amount to which it is entitled, for example by payment in cash or through bank transfer, but is freed of its obligation vis-à-vis the party declaring the set-off. For that reason, the party declaring the set-off must be entitled to perform with respect to the the cross-claim which the other party has against it. 

3 The expiry of the limitation period for a given claim does not in it self extinguish the right of the creditor of that claim to use it for purposes of set-off. However, the situation is different if the debtor has invoked the expiry of the limitation period as a defence by asserting it against the creditor. In that scenario, the debtor has made the limitation period effective by refusing performance based on the limitation defence. Consequently, the claim can no longer be enforced by way of set-off.

4 The right to set-off is to be exercised by notice to the other party. The notice requirement follows from the need for legal certainty and the autonomy of the parties to decide if, when and to what extent reciprocal claims shall be set-off against one another. Provided that the prerequisites of set-off are met, the reciprocal claims are extinguished up to the amount of the lesser claim from the time of the notice. 

5 The right to set-off can be excluded by explicit or tacit agreement of the parties or by law. It goes without saying that set-off is only permissible if each party has the authority to dispose of that party's claim for the purpose of the set-off. Therefore, set-off is excluded if creditors of one of the parties have acquired rights with respect to the claims which one party intends to subject to a set-off. The right to set-off cannot be exercised against a cross-claim that arises from an intentional wrongful act of the party declaring the sett-off. It is an inherent feature of such claims that they must be paid in cash by the wrongdoer. For the same reason, the right to set-off cannot be excercised against a cross-claim to the extent that this claim is not capable of attachment.

6 The setting-off of reciprocal claims can also be effected by an agreement of the parties. This follows from the fundamental principle of party autonomy (Principle IV.1.1). Contractual set-off can be effected in two different ways. Such an agreement may have the effect of directly extinguishing the claims to be set-off, whether such claims exist at the moment the set-off contract is concluded or arise in the future. Such set-off agreements for present and/or future claims are very common between businessmen who are in a permanent business relationship out of which reciprocal claims arise on a frequent basis for both parties ("current account"). Netting clauses in international financial market contracts, such as the close-out netting provisions contained in the ISDA Master Agreements, are frequently based on such a set-off agreement. Instead of extinguishing existing and/or future claims, a party-agreement on set-off may also give one party the unilateral right to declare set-off vis-à-vis the other party in the future. In both cases, the requirements set forth in para. (a) for a set-off by unilateral notice to the other side must not be met because they are not mandatory and may be modified or overriden by agreement of the parties.

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References
Arbitral Awards
Court Decisions
Doctrine
Model Laws
National Legislation
Principles / Restatements
TransLex Principle
Contract Clauses
1. Set-off from Amounts Due and Payable at the Discretion of One Party
Employment Contract

Any amount then due and payable by the Company to any Participant and/or Beneficiary under this Plan may be offset by any amount owed to any Employing Company by the Participant and/or Beneficiary for any reason and in any capacity whatsoever, as the Company may determine in its sole and absolute discretion
2000
Sales & Purchase Contract
Income Payments
Buyer shall offset against the Repurchase Price of each such Transaction all Income and Periodic Payments actually received by Buyer pursuant to Sections X and Y, respectively.
1998
Set-off
If a Party is in Default, at the election of the Performing Party, any or all other amounts owing between the Parties under any contract may be set off against amounts owing under this Contract so that all such amounts are aggregated and/or netted to a single amount payable by one Party to the other.
2000
Services Contract
Set-off
(...) The Company may set-off all or any part of said sales price against all sums owed by Distributor to the Company and shall pay the balance within 30 days thereafter (...) - (International Contracting: Law and Practice – Larry A. DiMatteo – §9.02 – S. 328)
Pledge and Assignment
The Pledgor hereby grants to the Collateral Agent for its own benefit and for the benefit of the Holders a security interest in, and express right of setoff against, all of the right, title and interest of the Pledgor in, to and under the following property, whether now owned or existing or hereafter from time to time acquired or coming into existence (collectively, the "Collateral") (...)
2005
Accounts Receivable Agreement
Right of Set-Off
Borrower and any guarantor hereby grant to Bank, a lien, security interest and right of setoff as security for all Obligations to Bank, whether now existing or hereafter arising upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of Bank (...) At any time after the occurrence and during the continuance of an Event of Default, without demand or notice, Bank may set off the same or any part thereof and apply the same to any liability or obligation of Borrower and any guarantor even though unmatured and regardless of the adequacy of any other collateral securing the Obligations (...)
2003
Loan Contract
Rights of Setoff
If an Event of Default shall have occurred and be continuing, the Lender and its Affiliates are authorized, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by the Lender and its Affiliates to or for the credit or the account of any Loan Party against the obligations of such Loan Party hereunder and under the other Loan Documents, irrespective of whether or not the Lender shall have made any demand thereunder and although such obligations may be unmatured. The rights of the Lender under this subsection are in addition to all other rights and remedies (including other rights of set off) that the Lender may have.
2008
Right of Set-Off
Borrower hereby grants to Bank, a lien, security interest and right of setoff as security for all Obligations to Bank, whether now existing or hereafter arising upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of Bank or any entity under the control of Bank (including a Bank subsidiary) or in transit to any of them. At any time after the occurrence and during the continuance of an Event of Default, without demand or notice, Bank may set off the same or any part thereof and apply the same to any Obligations of Borrower then due regardless of the adequacy of any other collateral securing the Obligations. Any and all rights to require bank to exercise its rights or remedies with respect to any other collateral which secures the obligations, prior to exercising its right of setoff with respect to such deposits, credits or other property of borrower, are hereby knowingly, voluntarily and irrevocably waived.
2011
Sharing of Set-Offs
(...) The Borrower and the Parent Guarantor agree, to the fullest extent they may effectively do so under applicable law, that any holder of a participation in a Note, whether or not acquired pursuant to the foregoing arrangements, may exercise rights of set- off or counterclaim and other rights with respect to such participation as fully as if such holder of a participation were a direct creditor of the Borrower or the Parent Guarantor, as the case may be, in the amount of such participation.
2011
Right of Set-Off
Borrower hereby grants to Bank, a lien, security interest and right of set off as security for all Obligations to Bank, whether now existing or hereafter arising upon and against all deposits, credits, collateral and property, now or hereafter in the possession, custody, safekeeping or control of Bank or any entity under the control of Bank (including a Bank subsidiary) or in transit to any of them. At any time after the occurrence and during the continuance of an Event of Default, without demand or notice, Bank may set off the same or any part thereof and apply the same to any liability or obligation of Borrower even though unmatured and regardless of the adequacy of any other collateral securing the Obligations. Any and all rights to require bank to exercise its rights or remedies with respect to any other collateral which secures the obligations, prior to exercising its right of setoff with respect to such deposits, credits or other property of borrower are hereby knowingly, voluntarily and irrevocably waived.
2012
Right of Set-Off
If an Event of Default shall have occurred and be continuing, the Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any obligations at any time owing by the Lender or Affiliate to or for the credit or the account of the Borrower or such Loan Guarantor against any of and all the Secured Obligations held by the Lender, irrespective of whether or not the Lender shall have made any demand under the Loan Documents and although such obligations may be unmatured. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which the Lender may have.
2012
Right of Set-Off
Borrower grants to Lender a security interest in, as well as a right of setoff against, and hereby assigns, conveys, delivers, pledges and transfers to Lender, as security for repayment of the Indebtedness, all Borrower's right, title and interest in and to all Borrower's accounts (whether checking, savings, or some other account) with Lender or any subsidiary or affiliate of X (each hereinafter referred to as a "Lender Affiliate") and all other obligations at any time owing by Lender or any Lender Affiliate to Borrower (...)
2012
Bankruptcy Agreement
Setoffs
Except with respect to claims of a Debtor or Reorganized Debtor released pursuant to the Plan or any contract, instrument, release or other agreement or document entered into or delivered in connection with the Plan, the Reorganized Debtors or, as instructed by the applicable Reorganized Debtor, a Third Party Disbursing Agent may, pursuant to section 553 of the Bankruptcy Code or applicable nonbankruptcy law, set off against any Allowed Claim and the distributions to be made pursuant to the Plan on account of such Claim (before any distribution is made on account of such Claim) the claims, rights and causes of action of any nature that the applicable Debtor or Reorganized Debtor may hold against the Holder of such Allowed Claim; provided that neither the failure to effect a setoff nor the allowance of any Claim hereunder will constitute a waiver or release by the applicable Debtor or Reorganized Debtor of any claims, rights and Causes of Action that the Debtor or Reorganized Debtor may possess against such a Claim Holder.
2006
Set-offs
The Debtors or the Liquidating Trust may, but shall not be required to, set-off against, or recoup from, any Claim (for purposes of determining the Allowed amount of such Claim on which a distribution shall be made), any claims of any nature whatsoever that the Debtors or the Liquidating Trust may have against the Holder of such Claim, but neither the failure to do so nor the allowance of any Claim under the Plan shall constitute a waiver or release by the Debtors or the Liquidating Trust of any such claim the Debtors or the Liquidating Trust may have against the Holder of such Claim.
2011
Asset Transfer Agreement
Offset Rights
Notwithstanding anything herein to the contrary, the Purchaser shall be entitled to offset, against any consideration otherwise payable to the Seller pursuant to Article X, any amount which the Management Shareholder, Seller or Operator may owe to the Purchaser or its affiliates. Without limiting the generality of the foregoing, the Purchaser shall be entitled to reduce the cash payments otherwise payable to the Seller by an amount equal to the aggregate amount due and payable by the Seller or the Operator to the Purchaser.
2009
2. Contractual Clauses Prohibiting Set-Off
Sales & Purchase Contract
Miscellaneous
This Agreement shall not be assignable by any of the parties hereto without the prior written consent of the other party except that Purchaser may assign all or any part hereof to one or several entities controlled by, controlling or under common control with Purchaser without such prior consent (...)
Fees and Expenses; No Right of Set-off
(...) no Party nor any of its Affiliates shall have any right of holdback or set-off or assert any Claim or defense with respect to any amounts that may be owed by such Party or its Affiliates to any other Party hereto ot its or their Affiliates as a result of and with respect to any amount that may be owing to such Party or its Affiliates under this Agreement, any Ancillary Agreement or any other commercial arrangement entered into in between or amoung such Parties and/or their respective Affiliates.
2009
Set-off and Retention
Except as otherwise provided in this Agreement, no Party shall be entitled to set off (aufrechnen) or net off (verrechnen) against any claims of any other Party under or in connection with this Agreement or to exercise any right of retention (Zurückbehaltungsrecht).
2010
General Agreement to Indemnify
The rights to indemnification under this Section X shall not be subject to set-off for any claim by the Indemnifying Party against any Indemnified Party, whether or not arising from the same event giving rise to such Indemnified Party's claim for indemnification.
2011
Services Contract
No Set-offs or Deductions
All obligations of X to Company under this Agreement shall be absolute and independent of any other obligations imposed by this Agreement or by law, and shall not be subject to any setoff, deduction or counterclaim.
2003
Waiver of Set-Off by Collateral Agent
The Collateral Agent hereby irrevocably waives any right of setoff, banker's lien, right to combine accounts or any similar Lien or right that it may have by agreement, under law or otherwise against any of the Collateral in respect of amounts owing to the Collateral Agent by any Person.
2009
Waiver of Set-Off by the Collateral Agent
The Collateral Agent hereby expressly waives any and all rights of setoff, abatement, diminution or deduction that it may otherwise at any time have under applicable law with respect to the Vehicle Collateral; provided, however, that this waiver shall apply only to obligations owed to the Collateral Agent in its individual capacity and not as an agent for the Secured Parties, and agrees that all Vehicle Collateral shall at all times be held and applied in accordance with the provisions hereof.
2010
Waiver of Set-Off With Respect to the Grantor
Each of the Secured Parties hereby waives and relinquishes any right that it has or may have to set-off or to exercise any banker's lien or any right of attachment or garnishment with respect to any funds at any time and from time to time on deposit in, or otherwise to the credit of, any account and any claims of the Grantor therein or with respect to any right to payment from the Grantor (...)
2010
Loan Contract
Debit of Accounts
Bank may debit any of Borrower's deposit accounts (other than accounts designated solely for, and used exclusively for, payroll) for payments or any amounts Borrower owes Bank hereunder. Bank shall promptly notify Borrower when it debits Borrower's accounts. These debits shall not constitute a set-off.
2011
No Setoff
All payments made by the Payor hereunder will be made without setoff, counterclaim or other defense. All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein and all interest, penalties or similar liabilities with respect thereto.
2011
Obligations Absolute
The Borrower's obligation to pay the X Obligations shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (...) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower's obligations hereunder (...)
2012
Consent to Loan Participation
Borrower agrees and consents to Lender's sale or transfer, whether now or later, of one or more participation interests in the Loan to one or more purchasers, whether related or unrelated to Lender (...) Borrower further waives all rights of offset or counterclaim that it may have now or later against Lender or against any purchaser of such a participation interest and unconditionally agrees that either Lender or such purchaser may enforce Borrower's obligation under the Loan irrespective of the failure or insolvency of any holder of any interest in the Loan. Borrower further agrees that the purchaser of any such participation interests may enforce its interests irrespective of any personal claims or defenses that Borrower may have against Lender.
2012
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