Occasionally it happens that the purchaser of a service has claims for payment against the service provider. For example, claims for damages that have arisen as a result of harmful conduct on the part of the service provider may be considered. In such cases, the question automatically arises whether the orderer can declare a set-off against the claim for payment of the service provider.
Offsetting against a claim for remuneration for work
The Higher Regional Court of Brandenburg had to decide on such a case at the end of 2021, cf. judgment of 11.11.2021 – 12 U 79/21. The contractor had undertaken to plan and manufacture a transformer station. From the client’s point of view, however, the promised service was provided too late, so that the client suffered damages. Therefore, he declared that he would set off the claim for damages against the claim for payment for the work. The contractor referred to a provision in its general terms and conditions of business according to which offsetting was only permissible against a claim that is undisputed or has become res judicata. In contrast, the Higher Regional Court confirmed the legal opinion of the client, according to which the prohibition of set-off was invalid.
Unreasonable disadvantage to the client
General terms and conditions may not unreasonably disadvantage the contracting party in accordance with the requirement of good faith. This would be the case, however, if there were an obligation to pay the work compensation claim in full and the client had to assert his claim for damages separately. This is because the client would then also have to pay for defective or unfinished services in full, even though it is entitled to counterclaims for rectification of defects or completion (BGH, judgement of 07.04.2011 – VII ZR 209/07). The client was therefore able to successfully defend itself in court by arguing that the claim for remuneration for work was partially unenforceable.
Set-off prohibitions in general terms and conditions
Prohibitions of set-off are often part of general terms and conditions. However, it must be examined in each individual case whether these are effective. If this is not the case and counterclaims exist, offsetting should definitely be declared and only the remaining part of the remuneration owed, if any, should be paid, as this is more economical and process-efficient than separately asserting the counterclaim. The lawyers of Horwath & Meier will be happy to advise you on all questions regarding general terms and conditions and represent you in legal disputes.