What is a counterclaim in an essay

The set-off - structure for the exam

Examination scheme of the set-off with explanations and examples for the BGB exam.

If two parties owe each other similar services, the offsetting enables a simplified settlement of these debts. However, it is not just a simplification of the fulfillment within the meaning of § 362 BGB. Rather, it allows the parties to enforce their claims without legal action, judgment or state enforcement. The set-off thus has a repayment function and an enforcement function.

Furthermore, the offsetting is a right of structuring. It is to be checked in the examination point "Claim expired".

I. Exam structure

1. Set-off position in accordance with Section 387 of the German Civil Code (BGB)

a. Mutual demands

aa. Claim of the counterparty against the counterparty (main claim)

bb. Claim of the offsetting party against the offsetting party (counterclaim)

cc. Owe each other (note exceptions)

b. Similarity of demands

c. Existing, due and enforceable counterclaim

d. Main requirement that can be met

2. Set-off declaration according to § 388 BGB

3. No offsetting exclusion

a. Contractual exclusion of offsetting

b. Legal exclusion of offsetting

4. Legal consequence of offsetting according to § 389 BGB

II. Consolidation of the examination points

1. Set-off position

a. Mutual demands

The offsetting party would first have to be entitled to a claim against the offsetting party (main claim). The offsetting party would in turn have to be entitled to a claim against the offsetting party (counterclaim).

In principle, the offsetting can only be declared by the offsetting party (= debtor). A third party is not entitled to this declaration. However, there is an exception if the third party is affected by the legal relationship between the offsetting parties. In this case, according to § 268 II BGB, a third party entitled to redemption can also offset a claim to which he is entitled. Further third party offsetting options can be found in § 1142 II BGB, § 1150 BGB and § 1249 BGB.

For clarification:

The counterclaim must be due to the offsetting party himself. Claims by a third party cannot be offset, even if their consent has been given. The offsetting party can only use the third party's claim if the third party would assign it to the offsetting party.

For clarification:

In principle, the counterclaim must also be directed against the counterparty and not against a third party.

However, there may be an exception to the reciprocity requirement by contractual agreement or by law. The most important breaches of the reciprocity relationship are regulated in Sections 406, 409, 566d of the German Civil Code. However, § 242 BGB must also be observed in individual cases. On the other hand, a tightening of the reciprocal relationship is stipulated in § 395 BGB.

It should also be noted that the requirement of reciprocity cannot be compared with reciprocity in Section 320 of the German Civil Code (BGB). In the "mutual contract" from Section 320 BGB, various types of services are exchanged on the basis of the (one) concluded contract. When setting off, however, there are similar services from different contracts.

b. Similarity of demands

The services owed must be of the same type in terms of their subject matter. Offsetting is therefore only possible in the case of money and justifiable items within the meaning of § 91 BGB. If the services are dissimilar, the person setting off only has the right of retention from Section 273 of the German Civil Code or from Section 320 of the German Civil Code.

However, there is no disparity:

  • with the difference in the places of performance and delivery of the two claims. This results from § 391 I BGB. In this context, the obligation to pay damages from § 391 I sentence 2 BGB must be observed.
  • in the case of the difference in the scope of the claim, since the offsetting effect occurs “to the extent that the claims coincide (§ 389 BGB).

Monetary debts in different currencies

However, debt in different currencies is problematic. A distinction must first be made between a real and a fake currency debt.

In the case of real currency debt, the currency was expressly determined by party agreement. This also has to be paid in the specified currency. If the currencies of the main claim and the counterclaim are different, offsetting is not possible.

Different currencies were agreed for the fake currency debt. If the service is to be provided in Germany according to the agreement, it can also be provided in euros in accordance with Section 244 I BGB. This means that offsetting is possible if the offsetting party is entitled to a claim in euros.

c. Existing, due and enforceable counterclaim

The counterclaim must exist. If there is a contestation of the counterclaim, this does not prevent the set-off until the point in time at which the declaration of contestation is issued. The counterclaim is destroyed ex-tunc through the contestation.

Against a dissolving demand (§ 158 II BGB) can be offset, because the demand exists until the dissolving point in time. Conversely, a set-off against a suspensive claim (§ 158 I BGB) is not possible, as this only becomes stronger when the provision of the full right of the claimant occurs. [This complex of topics should not be confused with the generally inadmissible conditional set-off declaration.]

Furthermore, the counterclaim must of course be due (§ 271 BGB) and enforceable, therefore free of objection (§ 390 BGB). If it is possible for the counterparty to prevent his conviction by an objection in a process, it must be even more possible for him to refuse his performance within the framework of the setoff (i.e. outside the process). However, there is an exception to the objection of the statute of limitations. According to § 215 BGB, the statute of limitations for the counterclaim does not preclude offsetting, provided that the counterclaim was not statute-barred when the offsetting situation occurred.

d. Main requirement that can be met

The main requirement, on the other hand, only has to be feasible (Section 271 BGB). This results from the fact that the offsetting party is the debtor of the main claim. It is therefore up to him whether he pays for a claim that is not yet due or for which a claim has been pleaded, thus creating a better position for the opposing party.

Note: Anyone who is unaware of a permanent objection can claim back what has been achieved in accordance with § 813 BGB, provided it is not an objection of limitation (§§ 813 I, 2nd sentence, 214 II BGB).

2. Set-off declaration in accordance with Section 388 of the German Civil Code (BGB)

Since offsetting is a structuring right, a declaration of offsetting is required. This triggers the legal consequences of offsetting. The declaration is a declaration of intent that needs to be received, to which §§ 104 ff. BGB apply. In the case of limited legal capacity, §§ 107, 108 BGB must be observed, as the minor loses his counterclaim through a set-off declaration and thus has a legal disadvantage.

Since the offsetting party has a formative effect on the sphere of the offsetting opponent through a unilateral declaration, the offsetting opponent must be protected. This protection is standardized in Section 388 of the German Civil Code (BGB) and is also applied analogously to all other design rights. According to § 388 BGB, the set-off cannot be declared subject to one condition (§ 158 BGB) or a time limit, since otherwise the opposing party cannot adjust to the legal consequences.

However, two exceptions are recognized:

On the one hand, the one in which the counterparty waives his protection or is not even placed in an uncertain situation by the conditional declaration of set-off. This is the case with the potentialative condition. This is a real condition within the meaning of § 158 BGB, but the occurrence of the condition depends on the behavior of the offsetting party. Therefore, the counterparty can adjust to the legal consequences and does not need the protection of the law.

On the other hand, the contingent offsetting in the process is an exception. A contingent offsetting exists if the offsetting party (= defendant) primarily objects to the existence of the main claim. Should this persist, however, the defendant will offset it as an alternative. The main requirement is not subject to an uncertain condition, as the main requirement is decided in the process. In the present case, one speaks of a permissible intra-procedural condition.

3. No offsetting exclusion

a. Contractual exclusion of offsetting

Offsetting can be expressly or tacitly excluded within the scope of private autonomy (with the latter, however, the parties must have been aware that there is the possibility of offsetting). The interpretation rule of § 391 II BGB must be observed here. Accordingly, there is an agreed exclusion if the time and place of performance have been agreed for the main claim and the counterclaim is to be met at another place of performance. A typical example of this is travel money. If it was agreed that A has to give B 500 € at Frankfurt Airport, A cannot offset B (on the day of handover) the 500 € with an old work wage claim.

It should also be noted that offsetting can not be ruled out by the general terms and conditions for non-entrepreneurs. This results from § 309 No. 3 BGB.

Offsetting bans in residential rental contracts are restricted even more in accordance with Section 556b II BGB.

In accordance with Section 242 of the German Civil Code (BGB), there may also be an exclusion of offsetting in individual cases, for example if someone invokes the prohibition of offsetting, although his liability arises from an intentional fraudulent act.

b. Statutory exclusion of offsetting

aa. Section 392 BGB

Section 392 of the German Civil Code (BGB) constitutes an obstacle to set-off with regard to the confiscated main claim. "Seizure" means the attachment of a claim by a third party. The seizure means the commandment to the creditor of this claim to abstain from any disposition (§ 829 I S. 2 ZPO) and at the same time the prohibition against the debtor to fulfill the claim (§ 829 I S. 1 ZPO). The sense and purpose of the provision is that the claim should reach the pledger and not the old creditor. If the fulfillment is already prohibited, the offsetting must also be prevented. This results from § 392 BGB. However, offsetting is only excluded if the debtor acquired his claim after the seizure or if his claim only became due after the seizure and later than the claim seized. The ratio is that once an offsetting situation exists, it should not be removed from the debtor at the time of the seizure.

bb. Section 393 BGB

Section 393 of the German Civil Code (BGB) constitutes an obstacle to set-off against a claim arising from an intentional tort. This is to prevent a private revenge against an insolvent debtor. On the one hand, it is important that only intentional and not grossly negligent behavior is recorded. On the other hand, offsetting with a tortious claim is always possible.

Example: A has a claim against B from a sales contract (§ 433 II BGB). B has a claim against A under § 823 I BGB. B can offset against A with the claim from § 823 I BGB.

However, the following case is not possible: A has a claim against B from a sales contract (§ 433 II BGB). Since B has no assets, A destroys B.'s car. A cannot now offset B's property damage against his purchase price claim.

If there are criminal acts on both sides, neither of the parties can set off according to h.M. Section 393 BGB applies to both claims.

Furthermore, intentional breaches of contract are only recorded if they are also an unlawful act.

cc. Section 394 of the German Civil Code

Section 394 of the German Civil Code (BGB) constitutes an obstacle to offsetting against a claim that cannot be attached (Section 850 et seq. ZPO). As a result, the enforcement debtor should have a subsistence level and the welfare state should be relieved. However, there is a restriction of the offsetting prohibition from § 242 BGB. According to this, a claim from an unlawful act can also be offset against a claim that cannot be attached if both claims originate from the same living relationship.

Example: Hairdresser A is still in training and is annoyed with boss B. That's why A destroys the € 300 hair dryer. A is entitled to a monthly salary of € 800 vis-à-vis B. However, B can now set off his damage, even though he falls below A's seizure exemption limit.

In the case of an intentional breach of contract that is not of a tortious nature, § 394 BGB is not to be reduced teleologically, since the injuring party is left with the subsistence level and the welfare state should not be liable for the wrongdoing of the injuring party (BGH).

dd. § 242 BGB

Section 242 of the German Civil Code (BGB) constitutes an obstacle to offsetting if the offsetting is not compatible with the legal relationship between the parties. This is the case, among other things, if the common purpose of the contract cannot be achieved or is restricted to an intolerable degree.

4. Legal consequence of offsetting according to § 389 BGB

The set-off leads to the expiry of the claims at the time the set-off situation arises (ex-tunc). The claims expire insofar as they match. It should also be noted that interest claims and damage caused by default (§§ 288 BGB, 280 BGB, 286 BGB), which arose after the point in time of the offsetting situation, also expire.

A revocation of the set-off declaration is not possible, so that the set-off can generally no longer be reversed. If you still want to eliminate the set-off, either the set-off declaration or the claims must be contested.

Furthermore, § 813 I BGB does not apply if the debtor performs his performance in ignorance of an actually existing set-off option. This results from the fact that the set-off is a right to structure and not an objection.

If there are several claims on both sides of the party or if the offsetting party owes interest or costs in addition to the main service, then § 396 I, II BGB is to be used.

III. Differentiation from the offsetting contract

The offsetting agreement must be agreed between the parties. A unilateral declaration of set-off is not possible here. However, the requirements of §§ 387 ff. BGB do not have to be complied with, so that the parties can, for example, agree on offsetting with different claims.


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see also: Examination assignment of claims