Of interest.

Provability difficulties of counterclaims do not always exclude them from offsetting by the defendant

Since the judicial enforcement of practically certain claims is often delayed by the defendants’ opportunistic set-off objections, the general prohibition of uncertain or indeterminate claims to be set off has been incorporated into the Czech Civil Code. However, the interpretation of the relevant provision of the Civil Code by courts has not gotten settled yet. Several guides on how to assess the certainty or determinateness of a counterclaim and how to reflect it in civil proceedings can be found in the recent Supreme Court judgment No. 28 Cdo 5711/2017 (October 10, 2018), where the Supreme Court dealt with the issue of offsetting counterclaim arising from the costs incurred for the maintenance of immovable property against the plaintiff’s claim arising from his right to restitution of unjust enrichment.

First of all, the Supreme Court pointed out that offsetting of an uncertain or indeterminate counterclaim usually can only be considered voidable rather than void, so the court may declare the ineligibility of the offsetting a counterclaim only in response to a proper set-off objection.

Regarding the interpretation of the terms “uncertain claim” and “indeterminate claim“, the Supreme Court emphasizes the original purpose of the prohibition of offsetting an uncertain or indeterminate counterclaim, namely the limitation of delays in court proceedings by complicated proving thereof. Thus, the very complexity and length of the verification of the existence and amount of the counterclaim themselves might be the reason for finding the counterclaim’s ineligibility to be set off against the plaintiff’s claim.

However, a counterclaim should not be considered uncertain or indeterminate, if the doubts about its existence arise merely from difficulties of its legal qualification. Courts should also be cautious when assessing the ineligibility of offsetting counterclaims arising from the same legal relationship as the plaintiff’s claim.

Our law firm PEYTON legal has a fairly extensive experience with legal disputes regarding the offsetting counterclaims issues. Therefore, we are able to propose to our clients a suitable way of dealing herewith, both from the position of the plaintiff forced to face the defendant’s attempt to set off the doubtful counterclaim, as well as from the position of the defendant possessing a legitimate counterclaim.


PhDr. Mgr. Jan Ptáčník, attorney at law – ptacnik@plegal.cz


22. 02. 2019