Book2 Chapter03 Title03

GERMAN CIVIL CODE OF 1896

• Based on the English Translation by: Wang, Chung Hui (1907). The German Civil Code, translated and annotated with historical introduction and appendices. London: Stevens and Sons. [available on Archive.org]

BOOK II. Law of Obligations.

Chapter III. Extinction of Obligations.

Title III. Set-off.

Section 387.

• If two persons mutually owe acts of performance which are of the same kind according to their object, either party may set off his claim against the claim of the other party as soon as he can demand the performance due to him and effect the performance due from him.

Section 388.

• The set-off is made by declaration to the other party. The declaration is ineffective, if made subject to any condition or limitation of time.

Section 389.

• The set-off has the effect that the claims, in so far as they cover each other, are deemed to have been extinguished at the moment at which, being suitable for set-off, they are balanced against each other.

Section 390.

• A claim against which there is a defence may not be set off. Prescription does not exclude set-off, if the claim barred by prescription was not barred at the time at which it could have been. set off against the other claim.

Section 391.

• [I] Set-off is not excluded by the fact that different places for performance or delivery exist for the claims. The party making the set-off shall, however, compensate for any damage which the other party suffers by reason of the fact that, in consequence of the set-off, he does not receive or cannot effect the performance in the fixed place.
• [II] If it is agreed that the performance shall be effected at a fixed time in a fixed place, it is to be presumed, in case of doubt, that the set-off of claim for which there is another place of performance is to be excluded.

Section 392.

• By the judicial attachment of a claim the set-off of a claim of the debtor's against the creditor is excluded only if the debtor has acquired his claim after the attachment, or if his claim has become due only after the attachment and after the maturity of the claim attached.

Section 393.

• Set-off is not permissible against a claim arising from a wilful unlawful act.

Section 394.

• If a claim is not subject to judicial attachment, it is not subject to set-off. Against sums to be drawn out of sick, aid, or burial funds (e.g., out of journeymen's funds and funds of journeymen's unions), contributions due may, however, be set off.

Section 395.

• Against a claim of the Empire, of a State, or of a commune, or any other communal union, set-off is permissible only if the performance is due to the same fund out of which the claim of the party making the set-off is to be paid.

Section 396.

• [I] If either party has several claims suitable for set-off, the party making the set-off may specify the claims which are to be set off against each other. If the set-off is declared without such specification, or if the other party objects without delay, the provision of 366, par. 2, applies mutatis mutandis.
• [II] If the party making the set-off owes the other party interest and costs in addition to the principal performance, the provisions of 367 apply mutatis mutandis.