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Features offset

Jan. 23, 2018, midnight

Features offset

 

In the process of conducting financial and economic activities of participants of civil relations is often used for termination of the mutual obligations set-off. The reason is that it allows you to settle with a party whole or in part without spending in circulation of cash and for it is enough will of one party.

In order to use the credit, you must have simultaneously the following conditions:

  • each side to each other should be payable on the fulfillment of obligations;

(In other words, at the time of claim submission date of execution of the obligation must occur or be determined on demand or to be specified)

  • of claims have to wear a uniform character; and the legislation of the Russian Federation not established a rule requiring that they came out of the same obligation or of the obligations of one kind (p. 7 of the Information letter of the Presidium of SAC dated 29.12.2001 № 65 "the Review of practice of resolution of disputes connected with the termination of obligations by offset of counter homogeneous requirements");
  • the claim may not follow from the obligation that is connected with compensation of harm caused to life or health, recovery, or maintenance, lifelong maintenance (article 411 of the civil code);
  • in law or Treaty should not be prohibitions or restrictions on the holding of the relevant credit;
  • by the time of the application classification has not expired term of limitation of actions on demand.

In addition to these General points, the inherent competition for recognition of its legitimacy in some cases you need to perform a number of additional measures. So, to the initiator of the statement on offset requirements based on the bill obligation, you will need to attach evidence of such claims (the act of transfer and acceptance of promissory notes, deed of a notary public to certify the fact of presenting bills for payment, the document issued by the party beneficiary of the note, on its presentation, other) (clause 26 of the Resolution of Plenum VS of the Russian Federation No. 33 of the Plenum of the RF № 14 dated 04.12.2000 "About some questions of practice of consideration of disputes connected with the circulation of promissory notes"; the Regulation of FAS Ural district from 14.06.2002 on case number F09-1237/02-GK). It should be remembered that such a classification is possible only in case, if the counter obligation is monetary. The application of set-off must contain a clearly expressed desire on the termination of commitments in such a way in the unconditional order (without the language about the intention to hold a competition or the need to agree such a test, etc.). Otherwise, the questionable nature of the will of the standings can serve as the basis for his recognition is imperfect.

Use the offset and possible repayment obligations for the payment of a penalty. For this purpose in the relevant contract must include a condition about the right of set-off contractual penalty in the settlement of the underlying obligation (e.g. payment for supplied goods, performed works, rendered services). In case of the absence between the parties of such an agreement, the courts will not recognize such a perfect competition (Determination of the Supreme Court of 18.11.2016, No. 305-ЭС16-11249; Determination of the Supreme Court of 18.11.2016, No. 307-ЭС16-15096). In addition, the statement of set-off contractual penalty should indicate the complete and exact calculation of its size. However, the party – recipient of this kind of statement, it is necessary to know that the requirement about payment of the penalty is not indisputable character, as its size can be reduced by the courts according to the rules of art 333 of the civil code. For this you need to present to the court an independent requirement about return of unduly paid (article 1102 of the civil code) (p. 79 resolution of the Plenum of the Supreme Court of 24.03.2016, No. 7 "On application by courts of certain provisions of the Civil code of the Russian Federation about responsibility for violation of obligations"; the Definition of the Supreme Court of 11.11.2016 g. № 310-ЭС16-14503).

Sometimes the competition is entitled to apply the tenant in order to terminate the obligation to pay rental payments due to the cost incurred by him for permanent improvements to the property during the term of the agreement. Judicial practice proceeds from the fact that this procedure is valid if the leasehold improvements made with the consent of the lessor and challenged them, and, unless other agreement has not been reached by the parties the agreement (item 8 of the Information letter of the Presidium of SAC dated 29.12.2001 № 65 "the Review of practice of resolution of disputes connected with the termination of obligations by offset of counter homogeneous requirements").

In corporate procedures, use of competition is possible only:

1) increase the authorized capital of the limited liability company by additional contributions of its participants and (or) deposits of the third parties accepted in the society (paragraph 4 of article 19 of the Federal law of 08.02.1998 № 14 – FZ "On limited liability companies");

2) when payment for additional shares placed through closed subscription (paragraph 2 of article 34 of the Federal law of 26.12.1995 № 208 – FZ "On joint-stock companies").

In the first case, you would have made an initiative on the part of the participant or a third party on the application of the classification and its unanimous approval by resolution of the General meeting of the company. The society itself cannot against the will of the participant or a third party to exercise the right of setoff as to make contributions to the assets of the society to replenish its assets and is unable to pursue the only goal, the cessation of previously existing obligations (Definition of the SAC dated 07.08.2012 No. YOU 9427/12).

In the second case, it is necessary that the decision on placing additional shares by closed subscription as a payment method featured cash form of payment and indication of payment of such shares by offsetting monetary claims to JSC (Information letter of the FSFM "On payment of additional shares placed through a closed subscription, by offsetting monetary claims to JSC"). In the absence of such instructions such payment method is not allowed (clause 20.2 of the Regulations on the standards of securities issue, state registration of issue (additional issue) of securities, state registration of reports on results of issue (additional issue) of emissive securities and registration of prospectuses of securities, approved by the Bank of Russia 11.08.2014 No. 428 – P; resolution of the Federal Ural district from 21.08.2012, № F09-7771/12).

In summary, we note that in the case of complex financial situation credit is an effective instrument for the cessation of obligations However, when the implementation must ensure that it receives notice of a competition by the addressee. The proof of this fact, subject to the compliance referred to in this article conditions, reducing the risk of the initiator of its holding on the recognition of imperfect competition.