| Abstract [eng] |
Summary. A set-off as a ground for discharge of obligations and its application in court practice. The law of set–off provides another example of haw our modern legal thinking is still unconsciously dominated by Roman law. Both in modern and in Roman law are the rules relating to compensatio or set-off – from purely dogmatic point of view probably the most interesting manner of terminating an obligation. The law of set-off is based on tradition reaching back to Roman law. Nowadays, it should be noted that set-off is very considerable practical significance, on both a national and international level, it covers an enormous range of situations. The law of set-off is used in private and in public law too. Though, the law of set-off is used in many cases, but set-off has not traditionally been a topic to which a large amount of scholarly attention has been devoted. Because of this vacancy we decided to write this topic - A set-off as a ground for discharge of obligations and its application in court practice. Purpose of this topic was: • Determinate the background institution of set-off; • Discuss the articles 6.130 – 6.140 of our civil code; • Determinate how the law of set-off is used in our courts practice. • Discuss problematical aspects the institution of set-off; • Show different regimes concerning the effect of set-off. The law of the set-off was regulated in 1964 civil code, but this regulation was incomplete. Our new civil code became operative in 2001. This civil code improved our regulation concerning the law of the set-off. The right of set-off is based by article 6.130 – a debtor may, under certain circumstances, defeat his creditors claim in view of a cross-claim against that creditor. There are three main requirements under which set-off may be declared: mutuality, obligations of the same kind, cross-claim due. Set-off may be declared only if one party has all these requirements at the same time. All these requirements are correctly applied in our courts practice. Lithuanian courts didn‘t offer an opinion about set-off by agreement. There is not such a institute in our civil code too. But all legal systems allow set-off by agreement: two parties may agree to discharge their mutual obligations by setting off one against the other. Set-off by agreement follows from the general recognition of freedom of contract. Our courts analyzed various questions about the institution of set-off: method of a set-off, perfection of a set-off, prohibition of a set-off and others. But in many cases Lithuanian courts had to offer their opinion about set-off in bankruptcy or insolvency. Set-off in bankruptcy provides as, the law orientation of our nation. Lithuanian courts from Independence Day till nowadays had an opinion, that set-off is not possible in bankruptcy. Such regulation means that Lithuanian courts protect all creditors’ interests, but not one creditor, who has a right of set-off, interests. Lithuanian civil code article 6.140 allows as to discharge an obligation by set-off in insolvency. As we mentioned before, the law of set-off is not recognized only in Lithuanian law. All legal systems recognize the institution of set-off. There are several different regimes of set-off in legal systems, but regardless that, the main purpose the institution of set-off in all the systems is to discharge the obligations of the debtor and creditor towards each other. |
