Comparative Foundations of a European Law of Set-Off and by Reinhard Zimmermann

By Reinhard Zimmermann

The emergence of a eu inner most legislations is a key felony factor this day. Set-off and ''extinctive'' prescription are ignored subject matters in comparative literature. Reinhard Zimmermann maps out a version for a typical eu method, offering functional examples of the arguments which may be hired within the technique of harmonizing ecu deepest legislation. The essays originated in the course of his paintings with the fee on ecu agreement legislation (the ''Lando-Commission''), whose activity is the ''restatement'' of eu agreement legislation. This quantity is for comparative attorneys and felony historians.

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After all, it is squarely based upon the general principle of good faith,80 as recognized in Art. 1:201 PECL81 and leads to a considerable practical simplification in the implementation of payments. Moreover, if set-off aims to avoid circuity of action and multiplicity of suits,82 a solution is arguably preferable which, at least occasionally, avoids a lawsuit altogether, rather than making the effect of set-off depend upon legal proceedings having been instituted. In many cases, of course, the same result could be arrived at by relying on setoff by agreement.

8 This follows from the general recognition of freedom of contract. 10 The latter is a purely 7 8 9 10 France: ‘les deux dettes s’´eteignent r´eciproquement’ (Art. 1290 code civil); England: ‘to the extent of his set-off . . discharged from performance’ (Halsbury’s Laws of England, vol. xlii (4th edn, 1983), n. 410); Germany: ‘daß die Forderungen, soweit sie sich decken, als . . erloschen gelten’ (§ 389 BGB); Netherlands: ‘gaan beide verbintenissen tot hun gemeenschappelijk beloop teniet’ (Art.

In the first place it has to be determined whether an extrajudicial and informal, unilateral declaration by one party to the other is sufficient or whether an exceptio compensationis has to be pleaded in court. The general drift of European legal development appears to be leading towards the former solution. 76 On a practical level, both solutions very largely coincide77 and thus the choice is more one of technique than legal policy. In this respect, however, it is obvious that the French solution is merely an attempt to make the best of the practically unsatisfactory, and much criticized,78 provision of Art.

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