Settlement of counter (mutual) homogeneous claims. Applications and agreements on offset of claims (samples)

If the debtor owes you money and you owe him, both obligations can be terminated by offset.

Set-off is one of the ways to terminate obligations in civil law.

In accordance with Article 410 of the Civil Code of the Russian Federation, a statement from one party is sufficient for offset. At the same time, this article of the Civil Code does not contain a prohibition on the conclusion of a bilateral agreement on the termination of mutual obligations (offset), which is more preferable and expedient for the purpose of avoiding any future disputes between the parties.

In addition, a set-off agreement, unlike a unilateral statement of set-off, gives the parties the opportunity to terminate heterogeneous obligations, as well as obligations that have expired (see more on this below).

Thus, we can distinguish offset as a unilateral transaction made according to the rules of Art. Art. 410 – 411 of the Civil Code of the Russian Federation (offset in the narrow sense) and contractual offset (offset in the broad sense), carried out without restrictions provided for by the mentioned articles of the Civil Code of the Russian Federation, but at the same time also pursuing the goal of reducing counter obligations.

Cases of inadmissibility of offset . It should be borne in mind that neither contractual nor unilateral offset of claims for compensation for harm caused to life or health, for lifelong maintenance and for the collection of alimony is unacceptable due to their social significance (see more about this below).

Features of the test . The peculiarity of offset as a basis for termination of obligations is that it entails the termination of two obligations at once - the main and the counter. In this case, both obligations are terminated if they are equal in size. If counter-obligations are unequal after offset, the larger obligation continues to exist to the extent that it exceeds the smaller claim declared for offset.

Definition of “credit”

Defining the concept of offset causes difficulties in theory. As a rule, the definition of credit is replaced by its description and does not contain all the characteristics.

Offset is the mutual repayment of equal amounts of payment obligations of two or more legal entities and individuals. (Dictionary of business terms. Akademik.ru. 2001).

Offset is the repayment of mutual obligations, payments of two or more legal entities and individuals within equal amounts, amounts of mutual debt. (Raizberg B.A., Lozovsky L.Sh., Starodubtseva E.B. “Modern economic dictionary. - 6th ed., revised and supplemented. - M.” (INFRA-M, 2011))

Offset is the repayment of one obligation through another, counter (debiti et crediti inter se contributio - definition of the Roman lawyer Modestine). The assumption of such repayment is justified by the elementary consideration that independent collection of counter-obligations would only lead to unnecessary waste of time, would initiate unnecessary processes and would impose on the debtor, without any benefit, the burden of finding and giving money or other things, in order to again then receive them back from creditor. (Brockhaus and Efron. Brockhaus and Efron, encyclopedic dictionary. 2012).

Offsetting a counterclaim is the repayment of equal amounts of mutual payment obligations of two or more legal entities and individuals. It is carried out in order to reduce mutual debt, speed up settlements and achieve savings in means of payment. As a rule, payments that are already due are counted. (Dictionary of Economic Terms. 2012).

Sample agreement and statement of offset

Agreement on set-off of counterclaims of the same type. Sample. In order to partially terminate obligations, the parties offset similar counterclaims. As a result of the offset, the debt of one of the parties is repaid in full, the other party undertakes to repay the debt within the prescribed period.

Application for offset of similar counterclaims. Sample. The Company declares a partial offset of the amounts of counterclaims of the same type that have become due. After the offset of mutual homogeneous claims, there is a balance of debt of the offset applicant. The debt of the other party to the applicant has been repaid in full.

Comments on Article 410 of the Civil Code of the Russian Federation, judicial practice of application

Comments: “Set-off of counter (mutual) homogeneous claims. Applications and agreements on offset of claims (samples)"

Agreement on set-off of counterclaims of the same type. Sample (as a result of the offset, the debt of one of the parties is repaid in full, the other party undertakes to repay the debt within the prescribed period);
Application for offset of similar counterclaims. Sample (after offset of mutual homogeneous claims, there is a balance of the applicant's debt. The debt of the other party to the applicant has been repaid in full).

Conditions for offset: counterclaims, uniformity and feasibility of offset

Article 410 of the Civil Code of the Russian Federation establishes the conditions for offset.

In order for the offset to take place, the following offset conditions must be present:

counter requirements;
homogeneity of requirements;
feasibility of the applicant's claim for offset.

Occurrence of demands

Concurrence of claims means that the creditor in one obligation acts as a debtor in another.

At the same time, the applicant for offset cannot set off a claim that he has not against the addressee of the offset, but against a third party, even if the fulfillment of this obligation by the third party is entrusted to the addressee of the offset. This position was expressed in 2001 by the Presidium of the Supreme Arbitration Court of the Russian Federation:

“The debtor does not have the right to declare an offset of a counterclaim of a similar nature to a person who, by virtue of paragraph 1 of Article 313 of the Civil Code of the Russian Federation, is entrusted with the fulfillment of an obligation in favor of the debtor, since the latter does not have a counterclaim against such a person” (clause 12 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29 .2001 N 65 “Review of the practice of resolving disputes related to the termination of obligations by offsetting counter-similar claims”).

However, in 2022, the Plenum of the Supreme Court changed its point of view on this issue and clarified that exceptions are allowed from the principle of identity of the subject composition of obligations terminated by offset in cases where an agreement or law allows the fulfillment of one of the offset obligations by a third party. In particular, the following is stated:

“In cases provided for by law or agreement, claims that are not counterclaims may be terminated by offset, for example, in accordance with the provisions of paragraph 4 of Article 313 of the Civil Code of the Russian Federation” (clause 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 11, 2020 N 6 “On some issues of application provisions of the Civil Code of the Russian Federation on termination of obligations")

Uniformity of requirements

Homogeneity of claims presupposes the presence in counter-obligations of requirements obliging the provision of similar items (money or other fungible things of the same kind, issue-grade securities). In practice, most often we are talking about offsetting funds.

For example, if the parties are obliged to transfer funds to each other for goods supplied by one party and work performed by the other party, then there are conditions for offsetting these claims, since the subject of the obligations of the parties is the same - money.

It should be noted that claims will not be homogeneous if a claim denominated in a foreign currency is subject to execution in that foreign currency, and a counterclaim is subject to execution in a different currency.

Concurrence, homogeneity of obligations and the onset of the deadline for their fulfillment as conditions for unilateral set-off must exist at the time the party makes the statement of set-off. At the same time, it should be taken into account that the counterclaims of the parties may be heterogeneous at the time of their occurrence; homogeneity matters at the time of the statement of offset. An example is given in paragraph 10 of the Resolution of the Supreme Court of the Russian Federation No. 6:

“For example, the counterclaims of the parties may at the time of their occurrence be heterogeneous (a demand for the transfer of a thing and a demand for the return of the loan amount), but by the time the offset is applied for, the counterclaims of the parties will already be homogeneous (a claim for compensation for damages for violation of the obligation to transfer a thing and demand for repayment of the loan amount).

Criterion for homogeneity of requirements. “For the purpose of applying Article 410 of the Civil Code of the Russian Federation, the objects of active and passive requirements must be homogeneous, that is, the parties, after the offset has been carried out, must be in the same position as if both obligations had been terminated by fulfillment. Article 410 of the Civil Code of the Russian Federation allows, among other things, the offset of active and passive claims that arose from different grounds. The homogeneity criterion is met when offsetting a claim for payment of the principal debt (for example, the purchase price under a sales contract) against a claim for payment of a penalty, interest or compensation for losses (for example, due to delay in performance of work under a contract)” (clause 12 Resolution of the Supreme Court of the Russian Federation No. 6).

For the concepts of active and passive requirement, see below.

Examples of claims eligible for offset . Settlement claims must be capable of being offset against each other. In this case, both the nature of the requirement and the reasons for their occurrence are indifferent. Accordingly, the following can be credited:

the contractor’s demands for payment for work performed and the demands of the guarantor who fulfilled the monetary obligation (clause 7 of the information letter of the Supreme Arbitration Court of the Russian Federation No. 65);
claims on a bill of exchange and monetary claims arising from general civil contracts, in particular, a loan agreement (clause 26 of the Resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 33/14).
contractual and non-contractual monetary claims (restitutionary - return by a party of what was received under an invalid transaction - Article 167 of the Civil Code of the Russian Federation; or conditional claim - Chapter 60 of the Civil Code of the Russian Federation).
claims for payment of principal versus claims for liquidated damages.

Offsetting in the last two cases is carried out by the applicant of offset at his own risk and does not prevent the addressee of offset, who does not agree with the amount of the claim in respect of which the offset was made, from filing a claim against the applicant of offset for the recovery of the amount in respect of which the offset was made unlawfully, justifying the illegality offset in full (for example, with reference to exemption from liability under Article 401 of the Civil Code of the Russian Federation) or in part (for example, with reference to the fault of the creditor under Article 404 of the Civil Code of the Russian Federation or the disproportionality of the penalty under Article 333 of the Civil Code of the Russian Federation).

Thus, in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02/07/2012 N 12990/11 in case N A40-16725/2010-41-134, A40-29780/2010-49-263 the following was stated:

“The indisputability of the claims being set off and the absence of objections from the parties regarding both the existence and the amount of claims are not defined by the Civil Code as conditions for set-off. Consequently, the existence of a dispute in relation to one of the offset claims does not prevent the filing of an application for offset, provided that the obligation to terminate which the offset claim is aimed at does not initiate court proceedings at the time of the application for offset.”

Offsetting heterogeneous obligations is also possible, but only by agreement of the parties. In paragraph 4 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 N 16 “On freedom of contract and its limits” it is stated that “the norms of Article 410 of the Civil Code of the Russian Federation, establishing the prerequisites for the termination of an obligation by a unilateral statement of offset, do not mean a prohibition of the agreement of the contracting parties on the termination of heterogeneous obligations or obligations with unfulfilled deadlines, etc.”

Feasibility of offset. The deadline for fulfilling the requirements has arrived

Feasibility of the applicant's claim for offset. For offset purposes, claims must be enforceable, which presupposes their existence and validity. Offsetting invalid or terminated (by execution, compensation or other circumstances) claims is not permitted.

The ability of requirements to be fulfilled also presupposes the occurrence of the deadline for their fulfillment.

Article 410 of the Civil Code of the Russian Federation indicates that the claim of the applicant for offset can be used for offset only in cases where such a requirement has reached the deadline for execution, or the deadline for execution is not specified or is determined by the moment of demand.

Offsetting a counterclaim that is not due

Offsetting a counterclaim of the same type, the deadline for which has not arrived, is allowed, but only in cases provided for by law (Article 410 of the Civil Code of the Russian Federation). It can be assumed that this refers to situations where the applicant for offset by force of law has the right to demand early execution (for example, Articles 811, 813, 814 of the Civil Code of the Russian Federation).

In fact, by virtue of the rule on freedom of contract, the parties can establish in their agreement the possibility of offsetting similar claims, including those that have not yet become due.

The concepts of “active” and “passive” requirements in the Resolution of the Supreme Court of the Russian Federation of 2022

Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 11, 2020 N 6 “On some issues of application of the provisions of the Civil Code of the Russian Federation on the termination of obligations”) introduces the concepts of “active” and “passive” claims, terminated by offset:

active claim - the claim of the offset applicant;
passive claim - a claim against which an active claim is counted.

In paragraph 13 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 6, it is explained that only a claim whose deadline has come, or whose deadline is not specified or is determined by the moment of demand can be terminated by offset, applies only to an active claim. In particular, the following is stated:

“For offset by virtue of Article 410 of the Civil Code of the Russian Federation, it is necessary that the active demand has a deadline for execution, except for cases where such a period is not specified or is determined by the moment of demand.

Within the meaning of Articles 410, 315 of the Civil Code of the Russian Federation, the deadline for fulfillment of a passive claim is not necessary for offset if it can be fulfilled ahead of schedule in accordance with the law or contract.

If a person received an application for set-off from its counterparty before the deadline for the execution of a passive claim in the absence of conditions for its early execution or before the deadline for the execution of an active claim, then after the relevant deadlines have arrived, the set-off is considered to have taken place at the moment when the obligations became capable of set-off, that is the conditions established by law for offset have occurred. If the deadline for fulfillment of an active claim has arrived, but there are no conditions for early execution of a passive claim, then the debtor under the active claim has the right to fulfill his obligation.”

This clarification applies only to cases of offset at the request of one of the parties of counter-obligations. An offset agreement may terminate obligations even if the deadline for fulfillment of both of them has not arrived.

Example of offsetting an active claim : Mars LLC is a debtor to Grand LLC under a work contract, the payment deadline for which was June 25, 2020. Grand LLC, at the same time, is a debtor to Mars LLC under the purchase and sale agreement, the payment deadline for which was 08/01/2020.

On July 10, 2020, Grand LLC sends to Mars LLC a notice of offsetting the debt of Grand LLC to Mars LLC for payment for work performed under a contract with a payment deadline of 08/01/2020.

That is, at the time of sending the notice of offset of counterclaims, the deadline for fulfilling the obligations of Mars LLC to Grand LLC (active obligation) came on June 25, 2020, and the deadline for fulfilling the obligation of Grand LLC to Mars LLC (passive obligation) – no (01.08.2020). The offset is legal, since only the arrival of the deadline for fulfilling the active obligation matters.

If a notice of offset were sent by Mars LLC to Grand LLC, then offset in this situation is unacceptable, since in this case an obligation that is not yet capable of offset becomes active.

Moment of termination of obligations by offset

Please note that the deadline for fulfilling obligations terminated by offset is not associated with the date of sending or receiving a notice of offset, but with the moment the deadline for fulfilling such obligations occurs:

“For example, if the deadline for fulfillment of active and passive claims has come before the application for offset, then the obligations are considered terminated by offset from the moment the deadline for fulfillment of the obligation (or the possibility of early execution of a passive obligation) occurs, which came later, regardless of the day the application for offset was received” (p. 15 Resolution of the Supreme Court of the Russian Federation No. 6).

Filing a claim in court on a claim terminated by offset

The fact that a party to the obligation subsequently files a claim in court on a claim terminated by offset does not invalidate the offset. This was indicated by the Plenum of the RF Armed Forces in paragraph 19 of Resolution No. 6:

“If the obligations were terminated by set-off, but one of the parties filed a claim in court for the fulfillment of the terminated obligation or for the recovery of damages or other sanctions in connection with improper performance or non-fulfillment of the obligation, the defendant has the right to declare the set-off in an objection to the claim.”

The Supreme Court of the Russian Federation allowed offset of judicial acts that entered into force without initiating enforcement proceedings

Paragraph 20 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 6 contains an explanation that the offset of claims is permissible even after the entry into force of judicial acts confirming the existence and size of the relevant obligations of the parties, but without initiating enforcement proceedings on one or both judicial acts, as well as after the entry into force of a judicial act on one claim and in the absence of objections from the debtor on another claim.

The RF Supreme Court allowed the approval of an “automatic” offset by agreement of the parties

Paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6 contains an explanation that the parties have the right to agree on a procedure for terminating their counterclaims that differs from that provided for in Article 410 of the Civil Code of the Russian Federation, for example, by establishing their automatic termination, which does not require a statement from one of the parties, or by stipulating that setting off through a unilateral expression of will is impossible and obligations can be terminated if there is an expression of will of all parties to the agreement, that is, by agreement between them (Article 411 of the Civil Code of the Russian Federation).

Moment of termination of the obligation by offset

The law does not specify the moment of termination of the obligation. Here it is necessary to distinguish two things: the moment of exercise of the right to set-off and the moment of implementation of set-off.

The moment of exercise of the right to offset is the moment of delivery of the application to its addressee or the moment from which the application is considered delivered according to the rules of Art. 165.1 of the Civil Code on legally significant messages.

As for the moment of offset, judicial practice has previously been based on the concept of retroactive action of the application for offset, its retroactive force, and paragraph 15 of the Resolution of the Plenum of the RF Armed Forces No. 6 enshrined it.

The essence of the concept is that obligations are considered terminated from the moment the obligations become capable of offset, and not from the moment a statement about it is received. Since usually the deadline for fulfillment of two obligations does not occur simultaneously, termination occurs at a time later than the due date.

Let's look at this with an example. The deadline for fulfillment of the active claim came on June 15, 2022, and for the passive claim - July 1, 2022. The offset was announced on July 5, 2022. The deadline for fulfillment of both claims came before the statement of offset and the obligations are considered terminated as of July 1, 2022.

What is the point of such a decision? This is necessary so that the parties are in an approximately equal position in the event of accrual of penalties for late execution.

In para. 2 clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6 states that interest under Art. 395 of the Civil Code or a penalty is accrued until the termination of the obligation by offset. If any amounts were accrued and paid for the period after the moment when the offset is considered completed, then they are subject to refund.

Let’s assume that according to A’s request to B, the deadline for execution came in September 2022, and according to B’s request to A - in May 2022. For the first, a contractual penalty in the form of a penalty is charged, for the second - only interest under Art. 395 Civil Code. The offset is announced in 2022. If it had been considered completed from the moment the application was delivered, then there would have been a significant difference in the counterclaims in favor of A.

Retroactive force makes it possible, as far as possible, to prevent too much bias in favor of the party that achieved the inclusion of a more favorable penalty clause in the contract. Therefore, once claims become offset, they cease and no penalties will be assessed from that point on.

Retroactivity can be canceled by agreement of the parties by agreeing on a set-off for the amount that actually existed at the time of its conclusion. The principle of freedom of contract is stronger than retroactivity.

It happens that obligations become reciprocal as a result of a change in persons in the obligation. In this situation, the moment of termination of requirements cannot be rolled back beyond the date of its implementation.

Cases of admissibility of offset under the Civil Code of the Russian Federation

Settlement of both contractual and non-contractual obligations is possible.

The possibility of offset is mentioned in the following norms of the Civil Code of the Russian Federation:

Set-off of solidary and subsidiary obligations (Articles 325, 399 of the Civil Code of the Russian Federation)
Bail . Offsetting claims against the pledgee (clause 3 of Article 344 of the Civil Code of the Russian Federation). Set-off against the purchase price of the pledged property of the pledgee's claims secured by the pledge (clause 4 of Article 350.2 of the Civil Code of the Russian Federation);
Guarantee . The guarantor’s right to object to the creditor’s claim (clause 2 of Article 364 of the Civil Code of the Russian Federation);
Deposit . Losses with offset of the deposit amount (Article 381 of the Civil Code of the Russian Federation);
Delivery . Repayment of homogeneous obligations under several supply contracts (clause 1 of Article 522 of the Civil Code of the Russian Federation);
Lifetime annuity . Termination of a life annuity agreement at the request of the annuity recipient and his demand to return the property with its value offset against the redemption price of the annuity (clause 2 of Article 599 of the Civil Code of the Russian Federation);
Rent . Violation by the lessor of the obligation to carry out major repairs gives the tenant the right to carry out major repairs provided for by the contract or caused by urgent need, and to recover from the lessor the cost of repairs or to offset it against the rent (clause 1 of Article 616 of the Civil Code of the Russian Federation);
Construction contract . If, for reasons beyond the control of the parties, work under a construction contract is suspended and the construction project is mothballed, the customer is obliged to pay the contractor in full for the work completed up to the moment of mothballing... with offset of the benefits that the contractor received or could receive as a result of the termination of work (Article 752 of the Civil Code of the Russian Federation );
Financing against the assignment of a monetary claim . If a financial agent approaches a debtor with a demand to make a payment, the debtor has the right... to present for offset his monetary claims based on an agreement with the client... (Clause 1 of Article 832 of the Civil Code of the Russian Federation);
Bank account . The bank's monetary claims to the client related to crediting the account and paying for the bank's services... are terminated by offset, unless otherwise provided by the bank account agreement (Article 853 of the Civil Code of the Russian Federation);
Insurance . When determining the amount of insurance compensation to be paid... or the insured amount... the insurer has the right to set off the amount of the overdue insurance premium (clause 4 of Article 954 of the Civil Code of the Russian Federation);
Unjust enrichment . When returning property acquired or saved unjustifiably... the acquirer has the right to demand from the victim compensation for the costs incurred for the maintenance and preservation of the property from the time from which he is obliged to return the income with offset of the benefits received by him (Article 1108 of the Civil Code of the Russian Federation).

Cases of inadmissibility of offset under the Civil Code of the Russian Federation

Cases of inadmissibility of offset are established in Article 411 of the Civil Code of the Russian Federation.

The following claims are not allowed:

on compensation for harm caused to life or health (§ 2 of Chapter 59 of the Civil Code of the Russian Federation). Attention was also drawn to the inadmissibility of offsetting these requirements in paragraph 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 26, 2010 No. 1;
on lifelong maintenance (§ 4 of Chapter 33 of the Civil Code of the Russian Federation);
on the collection of alimony (section V of the Family Code of the Russian Federation);
for which the statute of limitations has expired . In accordance with paragraph 3 of Article 199 of the Civil Code of the Russian Federation, unilateral actions aimed at exercising the right (offset, direct write-off of funds, extrajudicial foreclosure of pledged property, etc.), the statute of limitations for the protection of which has expired, are not allowed . In addition, the legal position is set out in paragraph 10 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 N 65: “an obligation cannot be terminated by offsetting a counterclaim of a similar nature if, at the request of the other party, the limitation period is subject to application to the claim and this period has expired ( paragraph two of Article 411 of the Civil Code of the Russian Federation). In this case, the party that received the application for set-off is not obliged to declare that the statute of limitations has passed to the counterparty, since the limitation period can only be applied by the court, which applies it if there is an application when considering the relevant dispute (clause 2 of Article 199 of the Civil Code of the Russian Federation).”

The Supreme Court of the Russian Federation on the consequences of the expiration of the statute of limitations on active and passive claims

Clause 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6 contains the following explanations:

“In the cases provided for in Article 411 of the Civil Code of the Russian Federation, the offset does not entail the legal consequences for which it was intended, in particular, if the offset contradicts the terms of the contract or the statute of limitations has expired on an active claim. When the statute of limitations on an active claim expires, the debtor who has received an application for set-off is not obliged to respond to it by notifying the creditor about the passage of the statute of limitations (clause 3 of Article 199 of the Civil Code of the Russian Federation). At the same time, the expiration of the limitation period for a passive claim is not an obstacle to offset.”

In other words, “if the period of the active claim has expired, the set-off is considered failed, the applicant still remains a debtor under the passive claim. In this case, the recipient of the offset is not obliged to report that the deadline has expired. If you make a statement about offsetting a long-standing passive claim, the offset will take place. In essence, the claimant will “gift” his claim to the debtor.”

Possibility of offsetting a claim for which the ID period has expired by agreement of the parties . Established in Art. 411 of the Civil Code of the Russian Federation, the restriction regarding the impossibility of offsetting claims for which the statute of limitations has expired does not apply when the parties sign an agreement on offsetting mutual claims. Specified in paragraph. 5 tbsp. 411 of the Civil Code of the Russian Federation, the restriction applies only to offsets carried out unilaterally.

Settlement of counter homogeneous claims: Civil Code of the Russian Federation and practice

If counterparties have counterclaims against each other, they can be offset. According to the Civil Code of the Russian Federation, the offset of counter-similar claims completely or partially terminates the obligation. What conditions must be met and how this method is used in practice.

Offsetting counterclaims of the same type is a way to simplify mutual settlements with a counterparty. In the Civil Code of the Russian Federation, the offset of counter homogeneous claims is regulated by Articles 410 and 411. Article 410 lists the conditions for offset, and Article 411 lists cases when mutual offset of claims is not allowed.

If there is a counterclaim of the same type, for offset of claims it is enough that one of the counterparties informs the other about this (Article 410 of the Civil Code of the Russian Federation). Offset serves not only as a way to simplify calculations. Termination of an obligation by offset removes the risk that one of the counterparties will transfer funds to another, but will be forced to recover its part of the performance through the court.

Set-off of a counterclaim is possible if six conditions are met

According to the Civil Code of the Russian Federation, the offset of counterclaims serves as a way to terminate obligations. To use this method, certain conditions are required. There are six of them:

The counterclaim must be homogeneous.
Offsetting a heterogeneous claim will require a separate agreement.
The deadline for the fulfillment of counter-obligations must come.
Each claim must not be within the statute of limitations.
There should be no dispute between counterparties regarding the claims that the parties propose to set off.
There should be no prohibition in law or contract regarding the set-off of counterclaims.

Let's consider these conditions in more detail.

Offset of claims is possible if they are homogeneous and there is no dispute

If counterparties want to complete the obligation by offsetting counterclaims, the claims must be homogeneous. That is:

The creditor on the first claim is the debtor on the second, and the debtor on the first claim is the creditor on the second. For example, a lessee company supplies goods to the lessor. The lessor company has the right to offset the cost of the goods against the rental fee.
Obligations have similar generic characteristics. For example, both obligations are monetary.

Thus, offset of counter homogeneous claims is possible if the claims arise from:

from the same obligation. For example, the landlord takes into account the tenant's costs for repairing the premises;
of obligations of the same type. For example, companies provided various services to each other;
of various types of obligations. For example, the buyer-lessor demands rental payments, and the supplier-lessee demands payment for goods.

If counterparties want to offset heterogeneous claims, an agreement on the offset of counterclaims will be required. The Plenum of the Supreme Arbitration Court of the Russian Federation indicated the possibility of such an offset in paragraph. 4 paragraph 4 of the resolution on freedom of contract. But this is not always allowed; legally disparate claims cannot be taken into account.

For example, mutual offset of claims is impossible if one obligation relates to the payment of a debt, and the other to the provision of a loan (Resolution of the Federal Antimonopoly Service of the Moscow District dated March 25, 2011 No. KG-A40/1415-11 in case No. A40-42333/10-97-359 ).

In addition, offset of a heterogeneous claim is not carried out unilaterally.

To terminate an obligation by offsetting a counterclaim of a similar nature, there should be no disputes between creditors regarding these claims:

To terminate obligations by offset, deadlines must be met

To use the legal possibility of offsetting counterclaims of the same type, you need to pay attention to the deadlines:

You can submit obligations for offset, the due date of which is:

has already occurred as indicated in the documents,
did not indicate
determined the moment of demand.

Before the deadline, the claim cannot be offset; this action will not entail legal consequences. The obligations will not cease (clause 18 of information letter No. 65).

The statute of limitations for each of the claims must also not expire.

The Civil Code of the Russian Federation does not allow offset of claims in all cases

The law or contract may prohibit the completion of an obligation by offsetting counterclaims. For example, the law prohibits the offset of claims if the claim relates to:

compensation for harm to life or health (paragraph 2 of Article 411 of the Civil Code of the Russian Federation);
lifelong maintenance (paragraph 3 of article 411 of the Civil Code of the Russian Federation);
collection of alimony (paragraph 4 of article 411 of the Civil Code of the Russian Federation);
payment of the authorized capital of an LLC when it increases (paragraph 2, paragraph 2, article 90 of the Civil Code of the Russian Federation, paragraph 4, article 19 of the law on LLC);
payment for additional shares (paragraph 2, paragraph 2, article 99 of the Civil Code of the Russian Federation, paragraph 2, article 34 of the law on joint-stock companies).

In addition, claims cannot be read out if the statute of limitations has expired (paragraph 5 of Article 411 of the Civil Code of the Russian Federation), as well as if bankruptcy proceedings have been initiated against one of the counterparties (paragraph 7, paragraph 1, Article 63, paragraph 9 p 1 article 81 of the bankruptcy law, paragraph 14 of the information letter of the Presidium No. 65).

For mutual offset of claims, an application from one of the counterparties is sufficient.

Set-off of counter-similar claims occurs after one of the parties sends an application for set-off (Article 410 of the Civil Code of the Russian Federation). The consent of the other party is not required. The procedure for claiming a claim is simple:

Send the counterparty a letter stating the offset. Such a letter is sent according to the general rules for legally significant messages.
Receive documentary evidence that the counterparty was given an application for offset.

If the other party to the agreement does not receive the letter, the offset will not take place and the obligation will remain in force (clause 4 of information letter No. 65).

When terminating obligations, the moment of termination of the obligation is considered to be the arrival of the deadline for fulfillment of a later obligation (clause 3 of information letter No. 65). The counterparty may present several obligations for offset.

If the amount of the counterclaim is not enough to terminate all, the earlier obligation is terminated (clause 19 of information letter No. 65). If the amounts for counterclaims are not equal, the greater is terminated partially - to the extent of the lesser, which will be offset in full.

When the Civil Code of the Russian Federation does not contain clarifications regarding the offset of counter homogeneous claims, they rely on the explanations of the Supreme Arbitration Court from letter No. 65.

Cases of inadmissibility of offset in the laws of the Russian Federation

In addition to the grounds specified in Article 411 of the Civil Code of the Russian Federation, the prohibition of offset can be established by agreement, as well as in cases provided for by law, for example:

Participation in shared construction . When the developer returns funds in the event of his unilateral refusal to fulfill the contract, offset of claims for payment by a participant in shared construction of a penalty (fines) ... is not allowed (clause 7 of Article 9 of Law No. 214-FZ “On Participation in Shared Construction...”).
Bankruptcy . It is not allowed to terminate the debtor's monetary obligations by offsetting a counterclaim of a similar nature if this violates the order of satisfaction of creditors' claims established by paragraph 4 of Article 134 of the Bankruptcy Law (paragraph 6 of paragraph 1 of Article 63, Article 81 of Law No. 127-FZ “On Insolvency (Bankruptcy) )". In the event of the transfer to the acquirer, as part of the transferred property, of the rights of claim against persons who are also creditors of the bank, set-off in relation to these rights of claim is not allowed (Clause 9 of Article 189.52 of the Bankruptcy Law). Repayment of creditors' claims by concluding an agreement on the novation of an obligation, and also by offsetting claims during bankruptcy proceedings in case of bankruptcy of credit organizations is not allowed (clause 31 of Article 189.96 of the bankruptcy law). Offsetting a counterclaim of the same type is not allowed from the date of initiation of bankruptcy proceedings against one of its parties (clause 14 of the information letter Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 N 65).
Increasing the authorized capital of LLC . As a general rule, payment of the authorized capital of a limited liability company is prohibited when increasing the authorized capital by offsetting claims against the company, since Article 19 of the Law on Limited Liability Companies states that only by decision of the general meeting of participants of the company, adopted by all participants of the company unanimously, the participants companies against their making additional contributions and (or) third parties have the right to set off monetary claims against the company against their contributions.
Banking activities . Payment of the authorized capital of a credit organization when increasing its authorized capital by offsetting claims against the credit organization is impossible, with the exception of monetary claims for payment of declared dividends in cash (Article 11 of Law No. 395-1 on banks and banking activities).
Contributions to compensation funds . Exemption from the obligation to pay a membership fee to the compensation fund is not permitted, including by offsetting claims (Article 18.1 of the Fundamentals of the Legislation of the Russian Federation on Notaries, Article 24.8 of the Law on Valuation Activities).

Conditions for the test

Settlement of counterclaims of the same type terminates the obligation in whole or in part. To implement it, a statement from one of the parties is sufficient. Therefore, offset can be classified as a unilateral transaction, but it can also be carried out by agreement of the parties.

As a unilateral transaction, offset may be declared invalid by the court on the grounds provided for in Chapter 9 of the Civil Code of the Russian Federation.

Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6 introduced terms that are not in the law.

The claim of the person who claims credit (the claim that is being read off) is called an active claim
, and the counterclaim of the other side opposing it (the one that is terminated) is
passive
.

It is better to understand this terminology well right away so as not to be confused in the future. The Supreme Court of the Russian Federation did not use the terms “compensator” (applicant for credit) and “compensator” (addressee of credit), adopted in the scientific literature. Therefore, we will use the terminology of the Supreme Court.

The implementation of offset requires compliance with three conditions, which are enshrined in Art. 410 GK:

reciprocity - the creditor in one obligation acts as a debtor in another and vice versa;
homogeneity - counter obligations must have the same object, which is usually cash;
the arrival of the deadline for fulfillment of counter-obligations.

During the reform of the general part of the law of obligations in Art. 410 of the Civil Code of the Russian Federation includes the possibility, in cases provided for by law, to offset a claim that has not come due.

Occurrence of demands

The definition of “counting” is given in paragraph 11 of Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6. This criterion assumes that the creditor of an active claim is the debtor of the claim against which it is offset (passive).

To put it simply, there are two obligations in which the same persons participate, who are both creditors and debtors in relation to each other. It’s even simpler: according to one obligation, a person is a creditor of another, and according to another, he is his debtor.

Nevertheless, the Supreme Court of the Russian Federation allowed the offset of claims that were not counterclaims, if this was provided for by law or contract. As an example, the fulfillment of an obligation by a third party is given (clause 4 of Article 313 of the Civil Code). If the debtor entrusted the performance to a third party, and that third party has its own claim against the creditor, it can declare a set-off.

There is no countermeasure here and an interesting situation arises: a third party terminates the debtor’s obligation by offsetting its own claim against the creditor.

Without a special indication of such a possibility in the law, the general rules on offset would not allow this to be done. Then, upon a monetary claim, a third party, after paying the creditor, could demand back the return of the amount in the amount of his own claim against him. To remove the risks and costs associated with this, clause 4 of Art. 313 of the Civil Code simply grants a third party the right to claim offset.

Set-off after filing a claim against the debtor

The RF Supreme Court allowed offset after a claim was filed

Before the adoption of Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 11, 2020 N 6, the position on the inadmissibility of offset after filing a claim, expressed by the Presidium of the Supreme Arbitration Court of the Russian Federation in 2001, was relevant:

“After filing a claim against the debtor, it is not allowed to terminate the obligation by offsetting a counterclaim of the same type in accordance with the provisions of Art. 410 of the Civil Code of the Russian Federation. In this case, offset can be made when considering a counterclaim (clause 1 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 N 65 “Review of the practice of resolving disputes related to the termination of obligations by offsetting counter-similar claims”; ruling of the Supreme Court of the Russian Federation dated June 9, 2015 in case No. 307-ES15-795, A13-2077/2014).

A new look at this issue is reflected in paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, which explains that obligations can be terminated by offset after filing a claim on one of the claims. In this case, the party, at its discretion, has the right to declare a set-off both in the counterclaim and in the defense to the claim. Moreover, also after filing a claim, the defendant has the right to send the plaintiff a statement of offset and indicate in the objection to the claim that the claim for which the claim was brought is terminated by offset.

Article 410 of the Civil Code of the Russian Federation. Termination of an obligation by offset (current version)

A type of fulfillment of an obligation is the offset of a counterclaim, which is discussed in the commented article. Moreover, the obligation can be terminated by offsetting the counterclaim, either in whole or in part.

Set-off is understood as a method of terminating an obligation through the mutual repayment of two rights of claim that are similar in content. In this case, two obligations are terminated at once - the main and the counter, if they are equal in size. If they are unequal, only the smaller obligation ceases, while the larger continues to exist in a part that exceeds the smaller. In cases provided for by law, it is allowed to set off a counterclaim of the same type that has not yet reached its due date.

Credit is possible only if three mandatory conditions are met:

1) the claim made for offset must be a counterclaim. This means that there are two obligatory relationships between the same persons and the debtor under one of them is simultaneously a creditor under the other and, conversely, the creditor under the first obligation is a debtor under the second;

2) the content of the obligations presented for offset must be uniform. This follows from the fact that the creditor is not obliged to accept performance that does not correspond exactly to what was established. Homogeneous obligations are those the subject of which is money or things of the same type, determined by generic characteristics (gasoline, logs, potatoes, etc.). Most often, monetary obligations are presented for offset;

3) in relation to both counter-obligations, as a general rule, the deadline for their fulfillment must come, or the deadline in them must be determined by the moment of demand. At the same time, in cases specifically provided for by law, it is allowed to set off a counterclaim of the same type that has not yet reached its due date.

The fact that counterclaims of the same type arose from different legal grounds (one from a loan agreement, the other from a purchase and sale agreement) does not prevent offset.

For offset, a statement from one party is sufficient, i.e. Set-off is a one-sided transaction and the consent of the other party is not required.

On the practice of resolving disputes related to the termination of obligations by offsetting counter similar claims, see the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 N 65, in paragraph 1 of which it was about.

Comment source:

“CIVIL CODE OF THE RUSSIAN FEDERATION. PART ONE. ARTICLE-BY-ARTICLE COMMENT"

S.P. Grishaev, T.V. Bogacheva, Yu.P. Sweet, 2019

Moment of termination of the obligation when sending an application for offset

The application for set-off is a one-sided transaction. To terminate the obligation by offset, the application for offset must be received by the relevant party (clause 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 65).

In accordance with Art. 165.1 of the Civil Code of the Russian Federation, legally significant messages, which should include a statement of offset, entail such consequences for this person from the moment the corresponding message is delivered to him or his representative.

The statement of set-off must be delivered to the party or be deemed to have been delivered . Clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 6 contains the following explanations:

According to Article 410 of the Civil Code of the Russian Federation, a statement from one party is necessary and sufficient for offset. To terminate obligations, the statement of offset must be delivered to the relevant party or considered delivered according to the rules of Article 165.1 of the Civil Code of the Russian Federation.

The presence of conditions for set-off without a statement of set-off does not terminate or change the obligations of the parties. Before an application for set-off, the parties do not have the right to refuse to accept proper performance on counterclaims, and the parties also do not have the right to demand the return of performance provided before the application for set-off.

Obligations are terminated by offset not from the moment the application for offset is received, but from the moment the obligation becomes due. Clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6 states that “obligations are considered terminated by offset in the amount of the least of them not from the moment the application for offset is received by the relevant party, but from the moment at which the obligations become capable of offset (Article 410 of the Civil Code of the Russian Federation) . For example, if the deadline for the fulfillment of active and passive claims occurred before the statement of offset, then the obligations are considered terminated by offset from the moment the deadline for fulfillment of the obligation (or the possibility of early execution of a passive obligation), which occurred later, regardless of the day the statement of offset was received.”

The termination of the obligation is not at the time of the statement of offset . In paragraph 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 65, it is explained that “obligations are considered terminated by offset from the moment the obligation becomes due for fulfillment, the due date for which came later.” It is stated that if the counterclaims are homogeneous, the deadline for their fulfillment has arrived and one of the parties has made a statement of offset, then the obligations are considered terminated at the time of the due date for the fulfillment of the obligation, the deadline for which came later, and regardless of when it was made or received statement of credit.

Refusal of perfect offset . There is also no provision for the possibility of refusing a previously completed offset. Clause 9 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 65 states that “civil legislation does not provide for the possibility of restoring obligations lawfully and justifiably terminated by offset in the event of a party’s refusal to apply for offset.”

Moment of termination of the obligation

The Plenum clarified the moment when obligations are considered terminated by offset. And this is not the moment the relevant party receives an application for set-off, as is commonly believed. This is the point at which the obligations become offset.

This is where the effect of Article 410 of the Civil Code of the Russian Federation is manifested, when settlements are closed by offset due to the fulfillment of the terms of the contract for the shipment of goods, performance of work, and provision of services.

For example, if the deadline for fulfilling the requirements came before the statement of offset, then the obligations are still considered terminated by offset from the moment the deadline for fulfilling the obligation arrived.

Set-off upon assignment of the right of claim

Article 412 of the Civil Code of the Russian Federation establishes the rules for offset when assigning a claim.

Based on the principle of the inadmissibility of worsening the debtor's position as a result of an assignment, the legislator grants the debtor, subject to certain conditions, the right to set off against the claim of the new creditor its claim against the former creditor.

Features of offset when assigning a claim:

the debtor's claim for offset is not counter to the new creditor;
the new creditor may not be aware that the debtor has the right to terminate the obligation in whole or in part by offset; the original creditor is not obliged to notify the new creditor of the debtor’s right to demand termination of the obligation by offset (if he has information about this);
offset is carried out if the claim arose on the basis that existed at the time the debtor received the notice of assignment of the claim and the term of the claim came before its receipt or this period is not specified or is determined by the moment of demand;
the rules of offset when assigning a claim apply to all assignments of a claim, i.e. the debtor has the right to present a claim for set-off against the last creditor.

How to set off counter homogeneous claims

The presence of counterclaims between organizations (two different agreements, under which each party would be one debtor, and the other a creditor). Homogeneity of counterclaims (homogeneous obligations are obligations that require the same method of repayment of different contracts).

The deadline for fulfilling the counterclaim of the same type: has arrived; not specified in the contract; determined by the moment of demand.

The Civil Code of the Russian Federation establishes several ways to terminate obligations.

Including according to Art. 410 of the Civil Code of the Russian Federation, the obligation is terminated in whole or in part by offsetting a counterclaim of the same type, the due date of which has come or the due date of which is not specified or determined by the moment of demand. For offset, a statement from one party is sufficient. Based on the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001.

Currency control of cash redistribution operations (Motokhin A

The draft Federal Law “On Amendments to the Criminal Code of the Russian Federation” establishes criminal liability for kidnapping for the purpose of marriage.

According to the authors of the bill, the failure to resolve this issue creates a real threat of an out-of-court resolution of the conflict, as a result of which innocent people (for example, relatives of the kidnapper or the kidnapped person) may suffer.

Assignment of the right of claim and offset of counterclaims of the same type - tax consequences

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How to offset mutual claims

What are the requirements of the current civil legislation for the offset of mutual claims between organizations?

How to conduct a multilateral offset?

How is VAT calculated when offsetting mutual claims? If a business entity experiences a lack of funds.

As a rule, non-monetary forms of settlements between the parties are used. In particular, they use such a form of non-monetary settlements as offset of counterclaims.

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Agreement on set-off of counterclaims of the same type

If two companies simultaneously act as a debtor in one agreement and as a creditor in another, then their payment obligations can be terminated by offsetting these claims.

How to correctly draw up a sample agreement on mutual offset. As is commonly said in the specialized literature, mutual offset is a surrogate for the fulfillment of obligations, that is, a method of terminating at least two counter homogeneous claims, leading to their satisfaction.

Settlement of mutual claims: when and how to carry out

In practice, situations often arise when the same counterparty acts as a debtor and as a creditor at the same time.

For example, organization “A” supplies organization “B” with drinking water for the office, and at the same time purchases advertising services from organization “B”. There can be a lot of similar examples, the main thing that unites them is the presence of mutual debt, which the parties have the right to pay off by offsetting mutual claims.

Nullity of set-off as a unilateral transaction

If a unilateral transaction is concluded when the law, other legal act or agreement of the parties does not provide for its completion or the requirements for its completion are not met, then, as a general rule, such a transaction does not entail the legal consequences for which it was intended (clause 51 of the Resolution of the Plenum of the Supreme Court RF dated June 23, 2015 N 25 “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation”).

Set-off as a unilateral transaction may be declared invalid by the court on the grounds provided for by civil law (clause 13 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65). Violation of the provisions established in Art. 410 of the Civil Code of the Russian Federation, the conditions for the admissibility of offset entail nullity under paragraph 2 of Article 168 of the Civil Code of the Russian Federation.

Conditions for mutual settlement

Unilateral offset is possible if three conditions are met simultaneously.

Firstly, organizations that intend to set off must have counterclaims against each other. This means that at least two different agreements are concluded between them, in one of which the organization is a debtor, and in the other, a creditor.

Secondly, the counterclaims of organizations must be homogeneous.

Thirdly, offset is possible if the deadline for fulfilling the counterclaim is:

has already arrived;

was not specified in the contract;

was determined by the moment of demand.

Offsetting a counterclaim of the same type, the deadline for which has not yet arrived, is also possible. But only in cases provided by law.

For offset, a statement from one of the parties is sufficient.

If the requirements are heterogeneous or the deadline for fulfillment of at least one of the obligations has not yet arrived, offset can be made only by agreement of the parties (paragraph 4, paragraph 4 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 No. 16).

This procedure follows from the provisions of Article 410 of the Civil Code of the Russian Federation.

Situation: what counterclaims are considered homogeneous for offset purposes?

Liabilities are recognized as homogeneous if they require the same method of repayment and are expressed in the same currency.

The condition that offset is possible in relation to similar counterclaims is contained in Article 410 of the Civil Code of the Russian Federation. However, the very concept of “homogeneous requirement” is not defined by civil law.

Paragraph 7 of the appendix to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 No. 65 states that the legislation does not insist that the requirement for offset arise from the same obligation or from obligations of the same type. It follows from this that obligations that are related to the execution of different contracts, but involve the same method of repayment, can be considered homogeneous. For example, if sales and contract agreements concluded between the same organizations initially assumed a monetary form of payment, then, subject to other conditions, these organizations have the right to offset mutual claims. That is, the buyer’s obligations to pay for the goods delivered to him can be offset against the fulfillment of the customer’s obligations to pay for the work performed for him.

If the obligations of organizations under one agreement (for example, under an exchange agreement) are expressed in natural units, and under another (for example, under an agreement for the provision of paid services) - in monetary form, then these obligations are not recognized as homogeneous.

Also, monetary claims, one of which is expressed in rubles and the other in foreign currency, are not recognized as homogeneous. This is due to the fact that foreign and Russian currency are independent types of property (Articles 140, 141 of the Civil Code of the Russian Federation). The court came to a similar conclusion in the resolution of the Federal Antimonopoly Service of the North Caucasus District dated December 1, 1999 No. F08-2593/99.

It is impossible to carry out offsets under such agreements.

Thus, counter obligations can be offset if they require the same method of repayment and are expressed in the same currency (for example, only in rubles, only in US dollars). Settlement can be carried out even if counter-obligations are expressed in conventional units. But provided that 1 y. i.e. for both the debtor and the creditor it is equal to the same currency.