Radim Chalupa
Author’s affiliation: Faculty of Law, Masaryk University Brno

The Procedural Offsetting in the Bill-of-Exchange Order Proceedings

Jurisprudence 4/2018 Section: Discussion Page: 33–45

Keywords: offsetting, substantive offsetting, procedural offsetting, bill-of-exchange order proceedings, bill-of-exchange order, counterclaim, right to a fair trial

Abstract: The article deals with the defence of the defendant in the bill-of-exchange order proceedings, which is led by the offsetting of a claim. The author questions the correctness of the current decision-making practice of the Supreme Court of the Czech Republic, which has repeatedly decided that the defence by the offsetting of the claim after the issue of a bill-of-exchange order may not be admitted. The legal opinion of the Supreme Court on the impossibility of claiming the objection of the offsetting of the claim after a bill-of-exchange order is issued and before a court decides whether it should be maintained or set aside is justified by the fact that only the factual situation at the time of the issue of the bill-of-exchange order should be taken into account. The author comes up with the idea that the defence against the claim can be based on “procedural offsetting”, which is the procedural act of the defendant, which deals with the facts that existed at the time of issue of the bill-of-exchange order – that is the reason to accept the possibility of this kind of defence. The author argues with the interpretation of the provisions of the Section 98 of the Civil Procedure Code, which is presented by the other authors in such a way that the above-mentioned provision gives the opportunity to the set-off objection, which must be based on the assertion of the previous substantive set-off. The author presents a new view of the aforementioned Section 98 of the Civil Procedure Code that, in his belief, regulates the procedural set-off of the claim claimed by a plaintiff, which is the nature of a procedural act whereby the defendant claims his counterclaim in real time for offset against the claim claimed by the plaintiff; this legal opinion is supported by an extensive argumentation.