| Abstract [eng] |
Set-off is one of the most commonly used way to discharge the obligations. Despite its daily usage, set-off has always been considered a difficult subject-matter in its complex construction and its concrete application. Therefore, the interpretation of set-off in the works of scholars and its application in various jurisdictions, sometimes even in the same one, has been very diverse and often contradictory. This master theses provides a detailed analysis of the problems arising out of the application of set-off, concerning the general concept and definition of set-off, the requirements for and the forms of its applications. In this paper set-off is analyzed as a general category of civil law without going further into discussion of set-off application in the specific fields of law, such as financial law, insurance or banking law. The only exception is made to the insolvency law, because it is widely accepted that this form of set-off is the most important one and provides for crucial disparity in various jurisdictions. It has to be noted that in Lithuanian courts’ practice the application of set-off in case of insolvency of debtor is one of the most commonly decided issues arising out of the application of set-off, while courts’ position concerning insolvency set-off is often seen as contradictory. Through discussion of the above provided issues it has been concluded that set-off is a legal concept closely related to the concept of performance of obligation. However, it has to be pointed out, that in any case set-off cannot be equated to performance of obligation. The relation between set-off and performance provides the explanation and solution for most of the problems arising out of the application of set-off. Because of the misleading interpretation in the courts’ decisions of set-off as the way of payment, the existing practice does not help to create a unified concept of set-off in Lithuania. Contrary, the practice of the courts on the discussed issues creates an even bigger legal uncertainty. Therefore, this work provides not only a comprehensive description of the existing legal practice in the field of set-off, but also identifies the pitfall of set-off application in the courts’ decisions and provides the guidelines for improvement of courts practice, keeping in mind the most recent developments of set-off doctrine. |
