Unilateral offsetting of an expired claim

Abstract

Offsetting (compensation) represents a way of termination of an obligation by calculating mutual claims and debts between the offsetting parties. Which claims or debts can be an object of offsetting is regulated by the Law. In most of legal systems, conditions for the offsetting can be reduced to reciprocity, maturity, homogeneity and enforceability of the claims. With regard to the latter, the issue of the expired claims is especially interesting. Our legislator has opted for the dominant opinion in the modern theory of civil law that the expired claims, in principle, cannot be offset. However, in certain cases, such a possibility is not excluded. By this is meant, firstly, the offsetting of the claims which were not expired at the moment when the conditions for the offsetting materialized. Secondly, the legislator stipulates that the offsetting is also possible when the claim had expired before it could have been terminated by the offsetting, if the statement of offsetting was given before raising the objection of expiration. In the paper, precisely this latter will be discussed, because the linguistic interpretation of the relevant provision raises many questions.

Keywords

• offsetting
• expiration
• objection
• the principle of good faith
• the principle of abuse of rights