Draft Amendment Regarding the Set-Off Defense – Quo Vadis Code of Civil Procedure?

A draft act amending the Code of Civil Procedure, version dated 15 April 2025, is available on the website of the Civil Law Codification Commission. It addresses, among other issues, the matter of the set-off defence, which currently gives rise to controversy.

According to the draft:

• There would be no time limitations for raising the defence and regarding the claims that may be submitted for set-off (Article 203¹ § 1 and 2 of the Code of Civil Procedure would be repealed) – there would appear a fee for the set-off defence (half of the court fee, calculated based on the amount of the claim submitted for set-off);
• A judgment with a reservation of deciding on the set-off defence would appear – Article 318¹ (§ 1 – § 5) of the Code of Civil Procedure, whose placement would signal a reference to the preliminary judgment (Article 318 of the current Code of Civil Procedure);
• The examination of the set-off defence would have the effect of res judicata with regard to the claim constituting the basis of the defendant’s set-off defence (up to the amount of the claim pursued by the claimant) – new Article 366 § 2 of the Code of Civil Procedure.

If the defendant raised a set-off defence causing doubts, and its omission would allow deciding on the statement of claim, the court could issue a judgment with a reservation of deciding on the set-off defence.

In the case of a subsequent decision on the set-off defence and its upholding, the court would revoke the judgment with the reservation and would dismiss the statement of claim in whole or in part, and in the case of its dismissal, the court would revoke the reservation of deciding on the set-off defence and would uphold the original judgment with the reservation.

n the case of upholding the set-off defence, the issue of possible settlements made on the basis of the judgment with the reservation would become relevant, and regardless of that, it would be possible for the defendant to pursue claims for damage caused as a result of the enforcement of the judgment with the reservation.

The proposed regulation seems to be a good direction.

• The court may promptly rule on the set-off by delivering a judgment.
• The court may also adjudicate the principal claim while reserving the determination of the set-off defence to a subsequent stage of the proceedings; in such a case, the claimant may proceed with enforcement of the judgment (unless its enforceability is stayed pending cassation proceedings) – however, the claimant must be aware of the risk that the judgment may be modified as a result of the subsequent adjudication of the set-off defence and that the defendant may assert claims arising therefrom.

In Conclusion

The resolution of the case based on the claim may be achieved relatively swiftly, even in the presence of a set-off defence. Nevertheless, this does not necessarily guarantee a final settlement of mutual claims between the parties.