Set-off of disputed claims under Polish law and European model laws

Bibliografia s. 44-47. Streszcz. ang. s. 47

The article addresses the problem of admissibility of set-off defense concerning disputed claims, both during the court proceedings as well as in the course of enforcement actions against the debtor. In its first part, the paper concentrates on a comparison of Polish regulations before and after the amendments to the Code of Civil Procedure from 7 November 2019, which has added the new article 2031. In its second part, the conclusions drawn from this analysis are compared with the new innovative proposals of regulation of the set-off defense presented in the European private law harmonization projects (such as the Principles of European Contract Law, Draft Common Frame of Reference and Principles of International Commercial Contracts). The remarks are concentrated mainly on the question of whether the set-off of disputed claims should be regulated in substantive or rather in the procedural law. Another important question is the scope of the freedom assigned to the judge who is examining the premises of set-off defense raised during civil proceedings. On one hand, such defense may protract legal proceedings, on the other hand, it may allow for a more comprehensive ruling. The conclusions based on a comparison between domestic Polish law and international private law projects are intended to enrich further academic discussions on how to regulate this complicated issue and avoid numerous drawbacks of the solution adopted in the aforementioned article 2031 of the Polish Code of Civil Procedure.