Termination of an Obligation by Set-Off Agreement: Issues of Admissibility and Qualification

The article examines the multifaceted issues related to the admissibility of concluding off setting agreements (regardless of the regulatory setting for sufficiency for off setting the statement of one party) and their qualifications (primarily from the point of view of the appropriateness of the perception of contractual off setting as off setting in a close sense). The author emphasizes that the possibility of implementing a contractual off set is predetermined not only by the principle of freedom of contract, but also by the lack of grounds for asserting the exclusivity of the unilateral off set model. In the work, diversified variations of the contractual off set (“forced” and initiative) are derived and disclosed based on the criterion (not) compliance with the conditions of the off set provided for by civil law; at the same time, in particular, the incorrectness of considering several unilateral offsets issued by one act as a contract is justified (the external contractual “shell” does not change the legal essence of the relationship). Particular attention is paid to the concept of distinguishing between set-off in a broad and narrow sense, common in science; the author notes the well-known “conformism” of this approach, bearing in mind that it does not allow explicitly establishing the place of contractual offset in the system of methods for terminating obligations. As a result, the author considers it expedient and dogmatically acceptable to give a generic status to the concept of set-off (with coverage, including contractual set-off), guided by considerations of a formal legal, theoretical and practical nature: the dispositiveness of the law authorizing unilateral set-off; the “symphonicity” of the commission of offsetting agreements to the principle of private autonomy; their demand in practice; the relevance of certain provisions for set-off regardless of its legal and factual basis, etc.