Function of a set-off defence in civil and bankruptcy proceedings

Bibliogr. s. 26-27

The function of a set-off in two different types of civil proceedings, i.e. contentious litigation and bankruptcy proceedings, depends on the specifics of the legal protection granted. De lege lata a set-off defense raised by a defendant in a civil process should be considered merely as his defense measure. The change of the function of the set-off defence in the civil trial was not affected by the amendment to the Polish Code of Civil Proceedings of 4 July 2019. In the bankruptcy proceedings, the creditors statement to exercise the right of set-off is functionally linked to the submission of his claim (covered by the set-off plea); therefore, in this case, the enforcement function of the set-off carried out under the applicable insolvency proceedings should be recognized as a prevailing one. In order to assign to the defendants procedural act consisting in raising of a set-off defense in civil process the function of an action of pursuing a claim, a statutory change would be required. De lege lata such function of a set-off should be considered contrary to the inherent characteristic of civil process, which is procedural formalism. There are diverse views on this subject in the doctrine. The author is in favor of a formalized approach, according to which the attributing to the set-off defence the effects of an action of pursuing a claim de lege lata would result in the process being perceived as unpredictable and thus not sufficiently protecting the interests of its parties.