Definition and Legal Classification of the Counterclaim
The counterclaim is a central concept in contract law, especially with regard to set-off (§§ 387 et seq. BGB) in Germany, but also in other German-speaking legal systems. It refers to a claim that the debtor asserts against the creditor’s claim. Within the framework of set-off, the counterclaim allows the debtor to set off their own claim against that of the creditor, so that ultimately only a balance remains or both claims are extinguished entirely.
General Requirements of the Counterclaim
Arising of the Counterclaim
A counterclaim arises as soon as, from a legal relationship—for example, from a purchase, lease, or contract for work—a civilly enforceable claim of the debtor against the creditor exists. The arising of the claim is independent of whether a set-off has already been declared or not. The counterclaim must be based on its own cause of action and must not be without legal grounds.
Enforceability and Maturity of the Counterclaim
For the exercise of a set-off, it is required that the counterclaim is enforceable und due , § 387 BGB. Enforceability is present if there is no permanent defense against the claim—such as limitation or deferral. The counterclaim must be due, that is, the point in time when the creditor can demand performance has been reached.
The Counterclaim in the Context of Set-off
Importance of the Counterclaim in Set-off
The counterclaim is at the center of the set-off process. In a set-off, the debtor declares to the creditor that he is setting off his own counterclaim against the creditor’s claim. As a result, the claims are extinguished to the extent that they correspond (§ 389 BGB). The statutory requirements for a successful set-off are as follows:
- Mutuality of claims: Debtor and creditor must have claims against each other in reversed roles.
- Homogeneity of claims: The subject matter of both claims must generally be of the same kind, usually money claims.
- Existence and enforceability of the counterclaim: The counterclaim must exist at the time of set-off, be due and free of defenses.
- Performability of the principal claim: The claim that is to be set off must be at least performable.
Exclusion of Set-off and Counterclaim
There are both legal and contractual exclusions of set-off with a counterclaim. For example, set-off is excluded:
- When set-off has been excluded by contract (§ 388 sentence 2 BGB).
- When a garnishment or preliminary insolvency of the principal claim has occurred (§§ 394, 389 BGB).
- In certain cases in employment law, tenancy law or social law.
A prohibition of set-off may also arise directly from legal provisions or the content of the legal transaction.
Types and Sources of Counterclaims
Typical Sources of Counterclaims
The counterclaim may arise from various legal relationships, for example:
- Contractual counterclaims (such as claims for repayment of the purchase price, reduction, damages)
- Statutory claims (such as unjust enrichment claims, tort claims)
- Secondary claims (such as interest, compensation for default damages)
It is important that the legal basis for the claim is enforceable and that there are no permanent legal obstacles to enforcement.
Special Features in the Case of Indefinite or Conditional Counterclaims
Conditional or deferred claims may be suitable for set-off under certain circumstances, provided their maturity and enforceability have arisen at the time the set-off is declared. Disputed claims may also be subject to set-off as long as their substantive legal standing and enforceability are ascertainable.
The Counterclaim in Insolvency Proceedings
Set-off in Insolvency Proceedings
Special rules apply to counterclaims in insolvency proceedings (§§ 94-96 InsO). As a rule, set-off is permitted with a counterclaim that already existed before the opening of insolvency proceedings (§ 94 InsO). Certain counterclaims arising after the opening of insolvency proceedings, however, may be disqualified from set-off or limited (§ 95, § 96 InsO).
Counterclaim in International and European Law
At the European level and in private international law, counterclaims also play a role in cross-border claims, for example, in the offsetting of monetary claims or recognition of judgments.
Legal Consequences and Effects of the Counterclaim
Effect of a Successful Set-off with a Counterclaim
With a successful set-off, both the principal claim and the counterclaim are extinguished to the extent that they correspond (§ 389 BGB). If one claim exceeds the other, the surplus portion remains as a residual claim.
Significance in Practical Legal Transactions
The assertion of a counterclaim by way of set-off is a frequently used instrument to efficiently balance civil law claims and mitigate payment risks. In business and private transactions, this reduces litigation risk and facilitates the monetary settlement of outstanding claims.
Literature and Case Law
Comprehensive commentaries and court decisions can be found, in particular, regarding §§ 387 et seq. BGB and the relevant sections of the Insolvency Code. The case law distinguishes precisely with respect to the respective requirements and exceptions.
Summary:
The counterclaim is a complex, central concept in civil law, especially in connection with set-off. It enables the balancing of mutual claims and makes a significant contribution to efficiency and fairness in legal transactions. Requirements include, among others, the existence, mutuality, homogeneity, and enforceability of the counterclaim. In addition to general application cases, significant special features are found in insolvency law and in the international context. The term is therefore fundamentally important for understanding and applying numerous contract law institutions.
Frequently Asked Questions
When can a counterclaim be set off?
A counterclaim can generally be set off when two parties owe each other performances of the same kind, that is, for example, monetary claims. The German Civil Code (BGB) requires that the so-called ‘set-off situation’ exists (§ 387 BGB): The main claim must be valid, due, and free of defenses, and the counterclaim to be set off must also be valid and performable. In addition, set-off must not be legally excluded or contractually/statutorily excepted (for example, due to an agreed prohibition of set-off or in the case of non-attachable claims under § 394 BGB). Set-off generally takes place by declaration to the creditor of the principal claim; it retroactively discharges to the point when set-off could first have been made.
What are the legal consequences of asserting a counterclaim in proceedings?
Asserting a counterclaim in proceedings can have different legal consequences depending on the manner of assertion. If the counterclaim is asserted merely by way of set-off, this is known as a plea of set-off. In this case, the claim of the plaintiff (principal claim) can be extinguished in whole or in part through set-off (§ 389 BGB). If, on the other hand, the counterclaim is asserted by way of a counterclaim, it becomes an independent counter-right to be decided upon. However, a counterclaim requires that the defendant pursues their own rights, which are to be enforced not merely by offsetting but as an independent claim. Through set-off, a discharging effect occurs up to the amount of the smaller claim, while an independent counterclaim may result in a separate judgment for payment.
What form requirements apply to the assertion of a counterclaim?
There are generally no special form requirements for asserting a counterclaim in the context of set-off. A declaration of intent, which must be received by the creditor of the principal claim, is sufficient. This can be made orally, in writing, or even implicitly through conclusive conduct. However, for evidentiary purposes, a written declaration is recommended in court proceedings. When filing a counterclaim that constitutes a counterclaim, procedural form must be observed, i.e., the counterclaim must be filed in writing within the framework of court proceedings and served on the other parties, §§ 253 et seq., 533 ZPO. In special statutory regulations (e.g., in employment law or consumer contracts), further form requirements may need to be observed.
Are there statutory grounds for excluding set-off with a counterclaim?
Yes, the law recognizes both substantive and procedural grounds for excluding set-off with a counterclaim. For instance, § 393 BGB stipulates that a claim arising from an intentional tort cannot be set off. Pursuant to § 394 BGB, set-off is excluded with non-attachable claims (such as certain wage portions, maintenance, etc.). Contractual set-off prohibitions are also legally permissible within certain limits. Additionally, special laws or contractual clauses can provide for further restrictions, such as in company law, employment law, or insolvency law.
What role do maturity and performability of the counterclaim play?
The maturity of the counterclaim is a central requirement for set-off; according to § 387 BGB, only a counterclaim that is at least performable can be set off. ‘Performable’ means that the debtor is entitled to render performance, even if it is not yet due. The counterclaim must therefore be able to be realized at the same time as or before the principal claim. If the counterclaim is not yet performable or enforceable (e.g., because a suspensive condition is still outstanding), set-off is legally excluded.
How is the set-off handled when there are multiple counterclaims?
If a debtor has several counterclaims against the creditor, they are in principle free to decide with which claim to set off against the principal claim. This can be specified in the declaration of set-off. If the debtor does not specify, the statutory rules of discharge apply accordingly (§ 396 (1) BGB), i.e., set-off is made first with the claim that is due first, then with the least secured, and then with the one that causes the creditor the greatest burden. If these characteristics are equal, the general rules for discharge (§ 366 (2) BGB) apply.
What special features apply to counterclaims against public bodies?
When dealing with public bodies, especially in administrative or tax law, there are in part special restrictions on set-off with counterclaims. It must always be checked whether and to what extent laws such as the Fiscal Code (AO) or state law provisions permit or restrict set-off. For example, in tax law, the tax authorities may reject set-off under certain conditions (§ 226 AO). The legal framework must therefore be carefully examined in each individual case.
