This page intentionally left blank COMPARATIVE FOUNDATIONS OF A EUROPEAN LAW OF SET-OFF AND PRESCRIPTION The emergence of a European private law is one of the great issues on the legal agenda of our time Among the most prominent initiatives furthering this process is the work of the Commission on European Contract Law (‘Lando Commission’) The essays collected in this volume have their origin within this context They explore two practically very important topics which have hitherto been largely neglected in comparative legal literature: set-off and ‘extinctive’ prescription (or limitation of actions) Professor Zimmermann lays the comparative foundations for a common approach which may provide the basis for a set of European principles At the same time, the essays provide practical examples of the arguments that can be employed in the process of harmonizing European private law on a rational basis: they consider the comparative experiences in the various modern legal systems, they explore the extent to which there is a common core of values, rules and concepts, they explain existing differences and they analyse the direction in which the international development is heading The introduction to the present volume discusses the terms of reference of the Lando Commission that has set itself the task of elaborating a ‘restatement’ of European contract law and places its work within the wider context of the Europeanization of private law reinhard zimmermann is Professor of Law at the University of Regensburg Among his many publications are The Law of Obligations: Roman Foundations of the Civilian Tradition (1990/ 1996) and Roman Law, Contemporary Law, European Law: The Civilian Tradition Today (2001) Co-edited volumes include Good Faith in European Contract Law (2000) and A History of Private Law in Scotland (2000) COMPARATIVE FOUNDATIONS OF A EUROPEAN LAW OF SET-OFF AND PRESCRIPTION RE INH A R D Z IMMER MA N N University of Regensburg           The Pitt Building, Trumpington Street, Cambridge, United Kingdom    The Edinburgh Building, Cambridge CB2 2RU, UK 40 West 20th Street, New York, NY 10011-4211, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia Ruiz de Alarcón 13, 28014 Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa http://www.cambridge.org © Reinhard Zimmermann 2004 First published in printed format 2002 ISBN 0-511-03032-0 eBook (Adobe Reader) ISBN 0-521-81461-8 hardback CONTENTS Preface List of abbreviations page vii xi introduction: towards a restatement of the european law of obligations i The Europeanization of private law and legal scholarship ii The Commission on European Contract Law iii Objectives of the Principles of European Contract Law iv The idea of codification today v Other projects contours of a european law of set-off i ii iii iv v vi vii Six preliminary points Procedural or substantive nature of set-off? Set-off ipso iure or by declaration? The requirements for set-off Situations where set-off is excluded Miscellaneous problems Summary liberative prescription i: the core regime i Policy considerations ii Legal literature and law reform iii Prescription of claims and limitation of actions v 1 12 18 18 22 32 44 56 60 60 62 62 65 69 Contents iv Striking the balance v The argument for uniformity vi The development of the law of liberative prescription: international trends vii The core regime viii The long-stop period ix Implementing the core regime 85 96 99 104 liberative prescription ii: additional issues 112 i Prescription of a claim established by legal proceedings ii The effect of judicial proceedings on the period of prescription iii Renewal of prescription iv Suspension in cases of an impediment beyond the creditor’s control v Extension in cases of incapacity vi Close personal ties as grounds for extension? vii Prescription of claims by or against an estate viii Extension as a result of negotiations ix Fraus omnia corrumpit? x Some details concerning extension and commencement xi Effects of prescription xii Agreements concerning prescription xiii Summary 112 Index 76 79 117 124 129 134 139 141 142 145 147 154 162 167 170 PR E FA C E Comparative legal scholarship in the twentieth century has been dominated by private law; within private law by the law of obligations; within the law of obligations by tort/delict and contract; and within contract by a standard range of topics including conclusion of contract, validity, breach of contract and third-party rights The magisterial treatise by ă both reflected and largely determined that Zweigert and Kotz agenda That treatise has prepared the ground for intense scholarly discussions on offer and acceptance, causa and consideration, specific performance, frustration and privity, to mention some examples At the same time, however, even within the law of obligations a number of topics not disă have received only scant attencussed by Zweigert and Kotz tion Set-off and (negative) prescription/limitation of claims are among those topics Conditions, substitution of debtors and plurality of debtors or creditors might also be mentioned Even the great International Encyclopedia of Comparative Law neglects these topics One can only speculate about the reasons Is it because they offer ‘fearsome technicalities but few issues that really stir the blood’ (Rory Derham, Set-off, 2nd edn, 1996, VII)? The three essays collected in this booklet attempt to explore two of these hitherto comparatively neglected areas They originated within the context of the Commission on European Contract Law (‘Lando Commission’) First drafts of all three papers were submitted as ‘position papers’ for vii Preface that commission The approach adopted towards the two topics covered by them is slightly different The chapter on set-off is based on as many legal systems of the European Union as were accessible to me The framework for the two prescription papers is both wider and narrower Fewer legal systems of the European Union have been taken into consideration But an attempt has been made to integrate the wider international trends and developments For the private law of the European Union cannot be looked at in isolation Thus, obviously, the Uncitral Convention had to be considered But even legal systems as far away as Qu´ebec or South Africa can offer interesting perspectives, not only because both legal systems once inherited their private laws from Europe but also particularly in view of the fact that in reforming their prescription laws they have taken account of the experiences gathered in Europe (and elsewhere) I have benefited very much from the critical discussion of my papers in the commission, from advice on matters of content and style by Hugh Beale and Roy Goode, and from a very intensive discussion on the law of prescription at a meeting of a small working party consisting of Ole Lando, Ulrich Drobnig, Hugh Beale and Ewoud Hondius at Goodhart Lodge in Cambridge I am very grateful to all my colleagues on the commission and in that working party At the same time, it must be emphasized that the views expressed in these papers in no way commit or prejudice the commission Earlier versions of two of the three chapters have appeared in Germany At the same time, these chapters constitute practical exercises in the Europeanization of private law The emergence of a European private law is one of the great issues on the legal agenda of our time Much has been written about it In particular, there has been considerable discussion as to the approach to be adopted I not think that there is only one approach As in early nineteenth-century Germany this Liberative prescription II legal proceedings begins to run again with each reasonable attempt of execution undertaken by, or at the application of, the creditor (vi) Prescription is suspended as long as the creditor does not know, and cannot reasonably know, of the facts giving rise to his claim, of the identity of his debtor and that his claim is not insignificant (vii) Prescription is suspended from the moment when judicial proceedings on the claim are begun Suspension lasts until a decision has been passed which is final, or until the case has been otherwise disposed of The same applies, mutatis mutandis, to arbitration proceedings and to all other proceedings initiated with the aim of obtaining an instrument which is enforceable as if it were a judgment (viii) Prescription is suspended as long as the creditor is prevented from enforcing his claim by an impediment which is beyond his control and which he could not reasonably have been expected to avoid or overcome This applies only if the impediment arises, or subsists, within the last six months of the prescription period (ix) If the parties negotiate about the claim, or about circumstances from which a claim might arise, prescription does not occur before one year has passed since the last communication made in the negotiations (x) If a person subject to an incapacity is without a representative, prescription for or against him does not occur before one year has passed after either the incapacity or the lack of representation has been removed Prescription of claims between a person subject to an incapacity and his representative does not occur before one year has passed after the incapacity has been removed (xi) Where the creditor or debtor has died, prescription of a claim by the creditor’s estate or against the debtor’s estate does not occur before one year has passed after the claim can be enforced by or against an heir, or by or against a representative of the estate (xii) Prescription cannot be extended, on account of the grounds of extension previously mentioned, to more than 168 Summary fifteen years This does not apply to suspension of prescription on account of judicial or other proceedings and to delay of completion in cases of incapacity (xiii) After expiry of the period of prescription the debtor is entitled to refuse performance Whatever has been performed in order to discharge a claim may not be reclaimed merely because the period of prescription had expired (xiv) The period of prescription for claims for interest, and other claims of an ancillary nature, expires not later than the period for the principal claim (xv) A claim in relation to which the period of prescription has expired may none the less be set off, unless the debtor has invoked prescription previously or does so within two months of receiving notice of set-off (xvi) Prescription may be facilitated, especially by shortening the period of prescription, by agreement between the parties The parties may also agree to render prescription more difficult, especially by extending the period of prescription, up to a maximum of thirty years 169 IND E X Academy of European Private Lawyers, 14–15 agreements, implied agreement, 30 prescription, 162–7 set-off, 20, 30, 35 assignment, set-off, 467 Austria, ă Allgemeines Gurgerliches Gesetzbuch (ABGB), 33, 119 Aufrechnung, 21 civil code, 17, 33, 119 declarations, 33 ipso iure discharge, 33 prescription, 119, 134 set-off, 21, 33 Azo, 25 bailment, set-off, 59 banking, Roman law, 24 set-off, 22 Bartolus, 133 Beale, Hugh, 4, Belgium, delict, 103 personal injuries, 88, 91, 103 prescription, 67, 88, 91, 95, 103, 112 Canada, discoverability criterion, 95 limitations, 95 Qu´ebec see Qu´ebec Central and Eastern European countries, codification, 11 child abuse, 137–8 civil codes, see also codification Austria, 17, 33, 119 contractual set-off, 20 France, 17, 25, 32, 34, 38, 51, 58, 71, 119, 133 Germany, 17, 26, 34, 54, 57–9, 63, 67, 86–9, 92–3, 95, 99, 105, 112, 119, 130, 138, 139, 140, 141, 142–4, 150, 152, 159 Greece, 112, 119 Italy, 15, 87, 90, 112, 119 Netherlands, 10, 33, 34, 45, 87, 90, 139, 159, 165 Qu´ebec, 10, 112, 119, 130 Russia, 88–9, 91, 94 Study Group, 15–16 symposium (1997), 12 civil law, mediation with common law, Roman see Roman law set-off, 22–6 claims, counterclaims, 20–1 damages, 109–11 discoverability criterion, 92–5 ex lege, 82 fraudulent concealment, 145–7 170 Index prescription see prescription set-off see set-off codification, see also civil codes Central and Eastern European countries, 11 Germany, 17, 34 introduction, 9–12 Netherlands, 10, 67 Principles of European Contract Law (PECL), 8, Coing, Helmut, Colloquium on Codification (1994), Council of Europe, 11 common law, England see England mediation with civil law, prescription, 74 Roman–canon common law, 133 set-off, 22–3 company law, contributories, 59 compensation, see also set-off compensation facultative, 51 compensation judiciaire, 53 condicio iuris, 25 England, 21 exceptio compensationis, 26, 34 France, 51, 53 ipso iure discharge see ipso iure discharge Scotland, 21, 32 terminology, 21 condictio indebiti, interest, 37 obligations discharged, 38 Contract Law Commission, see also Principles of European Contract Law Academy of European Private Lawyers project compared, 15 European Commission, European Parliament, 12 first, 4–5 internal market, introduction, 4–5 second, third, 6–7, 16 Unidroit project compared, 13–14 contracts, breach of contract, 31, 98 consumer contracts, 57 contracts for work, 81, 83 contracts of service, 81, 83 European Contract Code, 15 freedom of contract, 2, 20, 57 PECL see Principles of European Contract Law set-off excluded, 57 termination, default, 23 unfair terms, 166 Unidroit, 12–14, 15 Vienna Convention (1980),11–12, 68 contractual set-off, civil codes, 20 declarations, 35 England, 30, 31 freedom of contract, 20 contributories, company law, 59 Copenhagen Business School, Council of Europe, Colloquium on Codification (1994), 11 Council of Ministers, Dutch presidency, 12 counterclaims, set-off distinguished, 20–1 creditors, equal treatment, 44 cross-claims, declarations, 50–1 enforceable claims, 50 England, 23, 27, 29 France, 51, 52, 54 Germany, 54 liquidity, 52–6 naturalis obligatio, 50 proof, 53 171 Index cross-claims (cont.) same legal relationship, 53, 54, 56 set-off recognized, 19 terminology, 50 tortfeasors, 58 unascertained, 55 culpa in contrahendo, 83, 84, 110–11 damages, prescription, 109–11 declarations, see also set-off Austria, 33 contractual set-off, 35 cross-claims, 50–1 enforceable claims, 38, 51 ex nunc effect, 33 ex tunc effect, 36, 39 extrajudicial, 34–6 Germany, 26 Greece, 33 Italy, 33 lost by assignment, 47 Netherlands, 33 principal claims, 50 requirements, 44–56 retrospective effect, 25–6, 33, 36, 60–1 substantive requirements, 36, 38 Sweden, 33 defamation, prescription, 90, 92, 93 default, termination of contract, 23 defences, equitable set-off, 28–9, 30 prescription, 77–8, 161–2 delict, Belgium, 103 Germany, 58, 91, 92, 95, 101 legal scholarship, 15 Netherlands, 58, 93 prescription, 81, 83, 91, 92, 95, 98 set-off, 58, 61 Switzerland, 93 Derham, Rory, 29, 44 Dernburg, Heinrich, 53 England, see also Law Commission assumpsit, 31 breach of contract, 31 compensation, 21 conscience, 29 contractual set-off, 30, 31 Court of Chancery, 27 cross-claims, 23, 27, 29 equitable set-off see equitable set-off implied agreement, 30 incapacity, 134, 135, 136 independent promises, 31 insolvency set-off, 30, 31, 43 interruption, 117 legal families, 18 legal history, 26–8 limitations, acknowledgement, 127, 128 actions upon a speciality, 96–7 agreements, 163 cause of action accrued, 105 commencement, 105 discoverability criterion, 93, 94, 148–9 Law Commission, 67, 89, 90, 91, 94, 101, 112, 114 legal history, 62 legal proceedings, 112, 114, 117 legislation, 62, 63, 65–6 long-stop periods, 100, 101, 166 personal injuries, 90, 93, 18 procedural effect, 70 simple contract, 88 torts, 88, 90, 93 uniform period, 89, 90, 91 marriage, 139 money debts, 48–9 mutuality, 45 172 Index obligations of same kind, 48–9 part payment, 128 prescription, 70 principal claims, 51 procedural set-off, 24, 51 restitution, 88 set-off, 21, 22–3, 26–30, 48–9, 51 specific performance, 48 statutory set-off, 26–7, 28, 30, 49 equitable set-off, conscience, 29 Court of Chancery, 27 foreign currency debts, 49 increased significance, 28 insolvency/contractual set-offs, 30 jurisdiction, 28, 31 substantive defence, 28–9, 30 estoppel, prescription, 143 set-off, 56 euro, EU Regulation, 49 European Commission, Contract Law Commission, European Contract Code, 15 European contract law, common foundations, 8–9 other projects, 12–17 PECL see Principles of European Contract Law European Law Institute, European law school, European Parliament, Contract Law Commission, 12 European private law, emergence, 1–3 legal literature, 2–3 European Uniform Commercial Code, European Union (EU), Commission, Council of Ministers, 12 discoverability criterion, 95 economic and monetary union, 49 European Parliament, 12 expansion, limitations, 92 prescription, 92, 95, 103, 104, 166 product liability, 95, 103, 104 unfair contract terms, 166 ex nunc effect, declarations, 33 retrospective effect compared, 36–43 Roman law, 41 ex tunc effect, 36, 39, 161 foreign currency debts, conversion, 49 Principles of European Contract Law (PECL), 49 set-off, 48–50 France, code civil, 17, 25, 32, 34, 38, 51, 58, 71, 119, 133 code de proc´edure civile, 72 compensation, 51, 53 cross-claims, 51, 52, 54 demande reconventionelle, 53 incapacity, 134, 135 ipso iure discharge, 25, 32, 46, 51, 55 legal families, 18 liquidity, 52–4 obligations, 49 obligations discharged, 34–5, 71, 72 prescription, 71–2, 119, 133, 134, 139 principal claims, 51, 52, 54 restitution, 58 set-off, 25, 26, 32, 34–5, 37, 38, 49, 51, 52–4 set-off excluded, 58 sureties, 45–6 th´eorie classique, 71 waiver, 35 freedom of contract, set-off, 20, 57 173 Index Gandolfi, Giuseppe, 15 German Democratic Republic, 88, 90–1, 100 Germany, Ablaufhemmung, 139 ă Anspruchsverjahrung, 71 Austrian code, 17 Bavarian draft code, 34 BGB-PZ, 112 ă Burgerliches Gesetzbuch (BGB), 26, 54, 579, 67, 86–7, 89, 92–3, 95, 99, 105, 112, 115, 119, 130, 139, 140, 141, 1424, 150, 152, 159 ă Burgerliches Gesetzbuch, Kommissionsentwurf (BGB-KE), 112 Civil Code, 17, 63, 86 code civile, 17 codification, 17, 34 cross-claims, 54 declarations, 26 delict, 58, 91, 92, 95, 101 Dresden draft (1866), 34 German Democratic Republic, 88, 901, 100 incapacity, 134, 141 ă Klageverjahrung, 70 legal families, 18, 36 limitations, 62, 63–4 liquidity, 54 long-stop period, 99–101 maintenance debtors, 115 obligations, 10, 34, 49, 67 personal injuries, 100 prescription, agreements, 163 commencement, 105 defences, 162 differentiation, 80, 89 discoverability criterion, 92–3, 95, 97, 149 extension, 134, 138–40, 142–5, 149 interruption, 119 liberative prescription, 80, 86–8 periodic payments, 114–15 periods, 86–8, 97, 99–101, 112–15, 122, 152–3, 166 pledges, 159 substantive claims, 70–1 suspension, 122, 130, 142–5 unsatisfactory rules, 66–7 principal claims, 54 Prussian code, 17, 130, 138 Reform Commission, 88, 91, 97, 100, 115, 122–3, 130, 145, 153, 163 Roman law, 17 Saxonian Civil Code (1863), 17, 34 securities, 159 set-off, 26, 34, 36, 37, 38–9, 49, 54 set-off excluded, 57, 58, 59 unjust enrichment, 39, 91, 97 good faith, prescription, 78, 155 Principles of European Contract Law (PECL), 35 set-off, 29, 35, 39 Goode, Roy, 4, 22–3 Greece, Astikos Kodikas, 112, 119 declarations, 33 prescription, 112, 119, 122, 134, 163 set-off, 33 harmonization, prescription, 66 Principles of European Contract Law (PECL), 7–8 incapacity, child abuse, 137–8 174 Index prescription extension, 134–9, 140–1 representative adult, 134–5 indebitum solutum, set-off, 42 insolvency set-off, cum deductione, 44 England, 30, 31, 43 equal treatment, 44 public policy, 43–4 interest, condictio indebiti, 37 pro tanto discharge, 41 retrospective effect, 37 internal market, Contract Law Commission, International Academy of Comparative Law, Congress (1994), 66 International Institute for the Unification of Private Law (Unidroit), Principles of International Commercial Contracts, 12–14, 15 international trade law, limitations, 68 Principles of European Contract Law (PECL), Uncitral see Uncitral Convention International Working Group on European Trust Law, 15 ipso iure discharge, Austria, 33 France, 25, 32, 46, 51, 55 introdution, 32 Italy, 32 legal families, 36 prescription, 37 Scotland, 32 Spain, 32 Italy, codice civile, 15, 87, 90, 112, 119 declarations, 33 ipso iure discharge, 32 prescription, 87, 90, 119, 134, 139, 163 private law, 18 Roman law, 19 set-off, 32, 33 ius commune, historical model, prescription, 69, 161 retrospective effect, 40 Justinian, 24, 41, 512, 54 Kipp, Theodor, 53 ă Hein, 18 Kotz, Lando, Ole, 4, Law Commission, contract code, 10–11, 15 discoverability criterion, 94, 149 incapacity, 136 limitations, 67, 89, 90, 91, 94, 101, 112, 114, 163, 166 legal certainty, prescription, 65, 127, 128 set-off, 40, 42 legal scholarship, delict, 15 Europeanization, 2–3 particularization, 10 prescription, 65–6 private law, 16–17 set-off, 21 torts, 15 lex mercatoria, liberative prescription, see also prescription additional issues, 112–69 core regime, 96–9, 104–11 differentiation, 80, 83, 89 discoverability criterion, 92–5, 96, 97–8, 100, 106, 148–9 extension periods, 106–9 175 Index liberative prescription (cont.) Germany, 80, 86–8 implementation, 104–11 international trends, 85–96 legal developments, 85–96 limitation of action see limitations long-stop periods, 99–104, 166 recognition, 77 shorter periods, 86–9 terminology, 75 uniform periods, 89–92 ut sit finis litium, 80 limitations, Canada, 95 England see England European Union (EU), 92 Germany, 62, 63–4 international trade law, 68 interruption, 117 Law Commission, 67, 89, 90, 91, 94, 101, 112, 114, 166 pre-modern societies, 62–3 procedural nature, 70, 75 reasons for introduction, 63–4 Roman law, 62 liquidity, cross-claims, 52–6 France, 52–4 Germany, 54 principal claims, 52, 54–6 Roman law, 51–2, 53 set-off, 51–6 substantive requirement, 55 McGregor, Harvey, 11, 15 marriage, 139–40 Meijers, E M., 87 mora debitoris, retrospective effect, 37, 41 mutuality, concursus debiti et crediti, 45, 61 England, 45 Netherlands, 45 set-off, 44–7 negotiorum gestio, 83, 84 Netherlands, Burgerlijk Wetboek (BW), 10, 33, 34, 45, 87, 90, 139, 159, 165 codification, 10, 67 declarations, 33 delict, 58, 93 discoverability criterion, 93, 100 mutuality, 45 obligations, 10 prescription, 67, 87–8, 90, 100, 122, 139, 165 private law, 10, 18 Roman law, 19 securities, 159 set-off, 33, 34, 45 set-off excluded, 58 unjust enrichment, 93 Nordic legal systems, 19 obligations, definition, 62 France, 49 Germany, 10, 34, 49, 67 Netherlands, 10 non-contractual, 16, 94 prescription, 82, 83 restatement, 1–17 same kind, 48–50 Switzerland, 87 obligations discharged, coextensive obligations, 19–20 condictio indebiti, 38 France, 34–5, 71, 72 ipso iure see ipso iure discharge normal rules, 42 sine facto hominis, 33 Pavia conference (1990), 11 176 Index personal injuries, Belgium, 88, 91, 103 England, 90, 93, 148 German Democratic Republic, 88 Germany, 100 latency, 101 long-stop periods, 101, 102 Scotland, 90, 93 significant injury, 148–9 Peters, Frank, 88, 91, 94, 100, 130 Pothier, Robert Joseph, 72 prescription, see also limitations acquisitive/positive, 69 agreements, 162–7 ancillary claims, 157–8 Austria, 119, 134 balancing interests, 77–9 Belgium, 67, 88, 91, 95, 103, 112 commencement, 79, 104, 105–6 common law, 74 core regime, 62–111 damages, 109–11 defamation, 90, 92, 93 defences, 77–8, 161–2 delict, 81, 83, 91, 92, 95, 98 differentiation, criteria, 81–5 Germany, 80, 89 obligations, 82, 83 discoverability criterion, 92–5, 96, 97–8, 100, 106, 148–9 duty to refrain from action, 150–1 effects, 154–62 England, 70 estoppel, 143 European Union (EU), 92, 95, 103, 104, 166 extension see prescription extension France, 71–2, 119, 133, 134, 139 Germany see Germany good faith, 78, 155 177 Greece, 112, 119, 122, 134, 163 harmonization, 66 interruption, 117–21, 124, 125 ipso iure discharge, 37 Italy, 87, 90, 119, 134, 139, 163 ius commune, 69, 161 legal certainty, 65, 127, 128 legal literature/law reform, 65–8 legal proceedings, 112–17 liberative see liberative prescription longi temporis praescriptio, 69, 70 negative/extinctive, 66, 69, 70, 75 Netherlands, 67, 87–8, 90, 100, 122, 139, 165 pledges, 158, 159 principal components, 76 Principles of European Contract Law (PECL), 149, 156, 162 procedural nature, 71, 74, 75 product liability, 95, 103, 104 public policy, 62–5, 73–4, 77–81, 84, 163–4, 166 Qu´ebec, 67, 89, 91–2, 93–4, 97, 112, 119, 122, 127, 130, 139 real securities, 158–60 recovery, 73 renewal see prescription renewal restitution, 84 restrictions, 166 Roman law, 69, 71, 119, 125 Russia, 88–9, 91, 94 Scotland, 69, 88, 90, 93, 97, 100, 112, 119, 128, 139 set-off, 37, 160–1 South Africa, 69, 88, 91, 94–5, 96, 98–9, 105, 112, 119, 127, 130, 139 specific performance, 83, 84, 102 striking balance, 76–9 substantive nature, 72, 74, 75 summary, 167–9 suspension see prescription suspension Index prescription (cont.) Switzerland, 87, 89–90, 93, 97, 100, 122, 139, 143, 163 terminology, 75 title to property, 69 Uncitral see Uncitral Convention uniformity, 79–85 unjust enrichment, 83, 84, 102 ut sit finis litium, 73, 80, 157 Verwirkung, 156–7 waiver, 35, 143, 155–6 warranties, 90, 164 weak/strong approach, 72, 73, 74, 75 prescription extension, see also prescription suspension basic options, 134–6 child abuse, 137–8 close personal ties, 139–41 delay of completion, 138 estates, 141 Germany, 134, 138–40, 142–5, 149 ignorance, 148–9 implementation details, 136–8 incapacity, 134–9, 140–1 marriage, 139–40 negotiations, 142–5 prescription suspension, 138 public policy, 79 succession, 141 terminology, 138–9 Uncitral Convention, 131–2 prescription periods, date of judgment, 116 declaratory judgments, 116 Germany, 86–8, 97, 99–101, 112–15, 122, 152–3, 166 invoices, presentation, 153 judicial proceedings, effect, 117–24 limitation see limitations long-stop, 99–104, 166 payments, goods and services, 152–3 personal injuries see personal injuries shorter, 86–9 Uncitral Convention, 88, 91, 165 uniform, 89–92 prescription renewal, acknowledgement, 126–8, 143 execution, 115, 125–6 terminology, 124–2 prescription suspension, see also prescription extension creditor unaware of claim, 104, 129 fraudulent concealment, 145–7 fraus omnia corrumpit, 145–7 Germany, 122, 130, 142–5 impediment beyond creditor’s control, 129–33 legal grounds, 149–50 legal history, 129 legal proceedings, 117, 121–4, 129 marriage, 139–40 maximum periods, 147–8 minimum periods, 122–3 prescription extension, 138 public policy, 79 Qu´ebec, 122, 130 Uncitral Convention, 122, 130 principal claims, adjudication, 55–6 ascertainment, 54 capable of attachment, 58, 61 declarations, 50 England, 51 France, 51, 52, 54 Germany, 54 liquidity, 52, 54–6 performance, 60 same legal relationship, 53, 54, 56 178 Index Principles of European Contract Law (PECL), American Restatements compared, 7, 8, civil/common law, codification, 8, Contract Law Commission, 4–6, 17 contract law development, 8, 17 cross-border trade, foreign currency debts, 49 good faith, 35 harmonization, 7–8 lex mercatoria, mora debitoris, 41 objectives, 7–9 Part I, 4–6, 7, 9, 14 Part II, 6, 7, 9, 14 penalties, 41–2 prescription, 149, 156, 162 remedies, 75 set-off, 41, 49, 60–1 Study Group on a European Civil Code, 16 Towards a European Civil Code symposium (1997), 12 Unidroit project compared, 13, 14 Principles of European Private Law, 41 Principles of International Commercial Contracts, 12–14 private law, Italy, 18 national systems, 2, Netherlands, 10, 18 United States, 2, pro tanto discharge, interest, 41 retrospective effect, 23, 26, 41 public policy, prescription, 62–5, 73–4, 77–81, 84, 163–4, 166 Qu´ebec, acknowledgement, 127 civil code, 10, 112, 119 discoverability criterion, 93–4 interruption of prescription, 119 legal proceedings, 112, 119, 122 prescription, 67, 89, 91–2, 93–4, 97, 112, 119, 122, 127, 130, 139 suspension of prescription, 122, 130 restitution, England, 88 France, 58 prescription, 84 retrospective effect, declarations, 25–6, 33, 36, 60–1 ex nunc effect compared, 36–43 interest, 37 ipso iure compensatur, 36 ius commune, 40 mora debitoris, 37, 41 pro tanto discharge, 23, 26, 41 public policy, 39 Roman law, actio stricti iuris, 24 actiones stricti iuris, 24 banking, 24 bonae fidei iudicia, 24 Codex Iustiniani, 58 Corpus Juris Civilis, 24 dark pronouncements, 41 ex nunc effect, 41 Germany, 17 interruptio temporis, 125 Italy, 19 Justinian, 24, 41, 51–2, 53 legal families, 19, 36 limitations, 62 liquidity, 51–2, 53 Netherlands, 19 prescription, 69, 71, 119, 125 179 Index same legal relationship, 47, 53, 54, 56 specification, 60 unascertained, 55, 61 compensation see compensation contractual see contractual set-off contributories, 59 cross-claims, unascertained, 55 debt paid, 38–9 declarations see declarations delict, 58, 61 England, 21, 22–3, 26–30, 48–9, 51 equitable see equitable set-off estoppel, 56 euro-zone, 49 evaluation, 31–2 ex tunc effect, 36, 39, 161 exceptio compensationis, 26, 34 exceptions/exclusions, 38, 56–9 foreign currency debts, 48–50 France, 25, 26, 32, 34–5, 37, 38, 49, 51, 52–4 Germany, 26, 34, 36, 37, 38–9, 49, 54 good faith, 29, 35, 39 Greece, 33 indebitum solutum, 42 insolvency see insolvency set-off Italy, 32, 33 legal certainty, 40, 42 legal scholarship, 21 liquidity, 51–6 mutuality see mutuality Netherlands, 33, 34, 45 notification, assignment, 47 obligations discharged, 19–20 obligations of same kind, 48–50 pendency, 40 preliminary points, 18–22 prescription, 37, 160–1 Principles of European Contract Law (PECL), 41, 49, 60–1 Roman law (cont.) procedural set-off, 24, 54 Roman–canon common law, 133 set-off, 24–6, 36, 51–2, 58 Rome Convention on the Law Applicable to Contractual Obligations, 4, 75 Russia, Civil Code, 88–9, 91, 94 discoverability criterion, 94 prescription, 88–9, 91, 94 Savigny, Friedrich Carl von, 64–5 Scotland, acknowledgement, 128 compensation, 21, 32 discoverability criterion, 93 interruption of prescription, 119 ipso iure discharge, 32 legal proceedings, 112 marriage, 139 part payment, 128 personal injuries, 90, 93 prescription, 69, 88, 90, 93, 97, 100, 112, 119, 128, 139 set-off, 21, 22, 32 securities, real securities, 158–60 set-off, 48 set-off, agreements, 20, 30, 35 assignment, 46–7 Austria, 21, 33 bailment, 59 banking, 22 civil law, 22–6 claims, counterclaims distinguished, 20–1 cross-claims see cross-claims enforceable, 38, 50, 51 principal see principal claims 180 Index procedural/substantive nature, 22–32, 53–4 requirements, 44–56, 61 retrospective operation see retrospective effect Roman law, 24–6, 36, 51–2, 53, 58 Scotland, 21, 22, 32 securities, 48 self-help remedy, 29, 58 Spain, 32 subsistence, 57 sureties, 45–6 Sweden, 33 Switzerland, 34 terminology, 21–2, 50 two-stage enquiry, 23 South Africa, acknowledgement, 127 commencement of prescription, 105 Law Commission, 94–5 legal proceedings, 112 prescription, 69, 88, 91, 94–5, 96, 98–9, 105, 112, 119, 127, 130, 139 Spain, set-off, 32 specific performance, alternatives, 82 England, 48 prescription, 83, 84, 102 Switzerland, 89 Spiro, Karl, 130, 143 Story, Joseph, 65 Study Group on a European Civil Code, 15–16 sureties, France, 456 set-off, 456 Sweden, set-off, 33 Switzerland, ă Bundesgesetz uber das Obligationenrecht (OR), 89–90, 93, 112 delict, 93 discoverability criterion, 93, 100 obligations, 87 prescription, 87, 89–90, 93, 97, 100, 122, 139, 143, 163 securities, 159 set-off, 34 specific performance, 89 unjust enrichment, 93 warranties, 90 terminology, compensation, 21 cross-claims, 50 liberative prescription, 75 prescription extension, 138–9 prescription renewal, 124–2 prescription/limitations, 75 set-off, 21–2, 50 torts, cross-claims, 58 England, 88, 90, 93 legal scholarship, 15 Uncitral Convention, legal proceedings, 112–13, 118 mandatory regime, 163 part payment, 128 prescription extension, 131–2 prescription periods, 88, 91, 165 prescription suspension, 122, 130 ratifications, 68 United Kingdom, England see England Scotland see Scotland United States, American Restatements, 7, 8, private law, 2, unjust enrichment, Germany, 39, 91, 97 Netherlands, 93 prescription, 83, 84, 102 Switzerland, 93 181 Index Vienna Convention on Contracts for the International Sale of Goods (1980), 11–12, 68 von Bar, Christian, 15 waiver, 35, 143, 155–6 warranties, prescription, 90, 164 Wechselseitigkeit, 45 Widerklage, 20 Wilson, Bill, Windscheid, Bernhard, 53, 71 Wood, Philip R., 29 Xhosa, 63 Zimmermann, Reinhard, 88, 91, 94, 100, 130 Zweigert, Konrad, 18 182 ...This page intentionally left blank COMPARATIVE FOUNDATIONS OF A EUROPEAN LAW OF SET- OFF AND PRESCRIPTION The emergence of a European private law is one of the great issues on the legal agenda of. .. 1996) and Roman Law, Contemporary Law, European Law: The Civilian Tradition Today (2001) Co-edited volumes include Good Faith in European Contract Law (2000) and A History of Private Law in Scotland... 40 American Journal of Comparative Law 617ff and in (1995) 69 Tulane Law Review 1121ff 13 Introduction Japan, China, Australia, Qu´ebec and Ghana Like the Commission on European Contract Law