Set-off under the CISG

While the CISG does not address the set-off of claims between the parties explicitly, it has been heavily discussed in literature and case law whether the CISG can be applied nevertheless:

CISG applies to set-off, even if the claims are based on different (CISG-)contracts

CISG-AC Opinion No. 18 ‘Set-off under the CISG’ (Rapporteur: Christiana Fountoulakis), adopted by the CISG Advisory Council following its 24th meeting in Antigua (Guatemala) on 2 and 3 February 2018

Italian grape juice case
Oberlandesgericht Hamm (Court of Appeal Hamm)
Germany, 25 March 2019 – 2 U 132/18, CISG-online 5215

CISG applies to set-off as long as both claims stem from the same (CISG-)contract

Hungarian injection moulding tools case
Bundesgerichtshof (German Supreme Court)
Germany, 24 September 2014 – VIII ZR 394/12, CISG-online 2545

The court considered the CISG to apply to set-off if the respective claims originated from the same (CISG-)contract

CISG does not apply to set-off

Plastic labels case
Rechtbank Midden-Nederland (District Court Midden-Nederland)
Netherlands, 02 November 2016 – 4515811 AC EXPL 15-4389 KdM/1151, CISG-online 4725

The court held set-off not to be encompassed by the CISG and applied Polish law under Art. 17 Rome I-Convention even though the buyer tried to set-off with a damages claim against the claim for the price under the same contract

VÚB a.s. v. LITOZ s.r.o.
Nejvyšší soud České republiky (Supreme Court of the Czech Republic)
Czech Republic, 29 January 2019 – 23 Cdo 427/2017-336, CISG-online 4867

Held that set-off is not covered by the CISG, irrespective whether both claims arose from different contracts concluded under different national laws (and therefore not falling into the scope of the CISG), whether both claims arose from different contracts both governed by the CISG or whether both claims arose from one and the same contract governed by the CISG

Set-off case
Tribunal d'arrondissement de Luxembourg (District Court Luxembourg)
Luxembourg, 21 January 2011 – 131 230 and Jugement commercial II No. 92/2011, CISG-online 5041

Held that set-off is not covered by the CISG, which is why the court applied the Rome Regulation and consequently Luxembourg law

Czech floor materials case
Sąd Apelacyjny w Katowicach (Court of Appeal Katowice)
Poland, 18 January 2017 – ACa 344/16, CISG-online 5049

Held that set-off is not covered by the CISG (even though the claim and the alleged counter-claim), which is why the court applied the Rome Regulation

Prodema S.A. v. PontMeyer Handelsbedrijven B.V.
Rechtbank Haarlem (District Court Haarlem)
Netherlands, 16 July 2008 – 139990 - HA ZA 07-1287, CISG-online 5258

While the CISG does not contain rules on set-off (claims originated under different contracts), the Principles of European Contract Law (PECL) contain general principles in this regard and can be applied