Written by Sheng Shiming
[Brief facts of the case].
In May 2016, a material company signed a blade purchase agreement with a company in Lianyungang, stipulating that a material company would provide windmill blades to a company in Lianyungang.
On August 30, 2018, a material company, a company in Lianyungang, and an aerospace company signed the "Rights and Obligations Transfer Agreement", stipulating that a material company would transfer all its rights and obligations in the "Blade Purchase Agreement" to the aerospace company, and agreed that the obligation to deliver 8 sets of windmill blades to a company in Lianyungang would be fulfilled by a material company, the obligation to pay for the goods would be fulfilled by a company in Lianyungang to the aerospace company, and the obligations of warranty and maintenance would be fulfilled by the aerospace company to a company in Lianyungang. A material company delivered 8 sets of windmill blades to a company in Lianyungang according to the contract, and a company in Lianyungang paid 95% of the payment for 8 sets of blades on April 15, 2020, and still owed 2978786 yuan to be paid.
The aerospace company sued the court and requested that the defendant Lianyungang be ordered to pay the plaintiff aerospace company 2978786 yuan in arrears and corresponding interest.
The defendant, a company in Lianyungang, argued that in the award made by an arbitration commission in July 2021, the defendant Lianyungang company obtained a claim against a third party, a material company, and the amount of the claim was greater than the amount requested by the plaintiff aerospace company in this case, and should be resolved by set-off. Therefore, the defendant Lianyungang Company filed a counterclaim: to order that a part of the creditor's rights owned by the defendant Lianyungang Company against a third party, a material company, be offset in equal amounts against the arrears of 2978786 yuan and interest claimed in this lawsuit.
[Verdict].
1. The defendant Lianyungang Company shall pay the plaintiff Aerospace Company 2978786 yuan plus interest within 10 days after the judgment takes effect.
2. The lawsuit of the plaintiff in the counterclaim (a company in Lianyungang, the defendant in this lawsuit) is dismissed.
[Lawyer's interpretation].
1. Why can't a company in Lianyungang exercise the right of set-off? The legal basis for judging whether a company in Lianyungang can enjoy the right of set-off against an aerospace company is Article 548 of the Civil Code: "After the debtor receives the notice of assignment of creditor's rights, the debtor may claim against the transferor against the assignee", Article 549 (Article 83 of the Contract Law): "In any of the following circumstances, the debtor may claim set-off against the assignee: 1When the debtor receives the notice of assignment of creditor's rights, the debtor has a creditor's right against the transferor, and the debtor's creditor's right matures before or at the same time as the assigned creditor's right; 2.The debtor's creditor's right and the assigned creditor's right arise on the basis of the same contract", Article 568: "If the parties owe debts to each other, and the subject matter of the debt is of the same type and quality, either party may offset its own debt with the other party's due debt; However, this does not apply if it is not allowed to be set off according to the nature of the debt, according to the agreement of the parties or in accordance with the provisions of law. ”The defense of a certain company in Lianyungang is that it has signed an "Agreement on the Transfer of Rights and Obligations" with the aerospace company and a certain material company, so a certain company in Lianyungang has become the debtor of an aerospace company from the debtor of a certain material company, and it can exercise the right of defense of a certain company in Lianyungang against a certain material company (the transferor) against the aerospace company (the transferee), and the right of set-off of a certain company in Lianyungang against a certain material company can be exercised against the aerospace company. The above-mentioned defense of a company in Lianyungang did not comply with the law. A company in Lianyungang had a sales contract relationship with a material company due to the "Blade Procurement Framework Agreement", so a company in Lianyungang could only enjoy the right of defense against a material company because of the contract. If an economic loss is caused to a company in Lianyungang due to the quality problems of windmill blades, a company in Lianyungang can claim set-off from a material company for such losses, and a company in Lianyungang can exercise the right of set-off against the aerospace company because the material company transfers the relevant obligations to the aerospace company. The right of set-off of a company in Lianyungang shall be limited to the Purchase Agreement and the Transfer Agreement. The facts of this case are as follows: first, when the three parties signed the Rights Transfer Agreement, a company in Lianyungang did not initiate arbitration on the debt with a material company, and a company in Lianyungang obtained the creditor's rights through an arbitration award after the lawsuit was filed in this case. Therefore, the claims of a company in Lianyungang against a material company are not claims that have matured or are due at the same time, and cannot be offset against the claims of the aerospace company in this case; Second, the counterclaim filed by a certain company in Lianyungang was based on a contract signed between it and a certain material company, and in the arbitration case, a certain material company had the obligation to pay Guodian Lianyungang Company for other contracts, and the contract had nothing to do with the contract relied on by the aerospace company in this case. Therefore, the counterclaim filed by a company in Lianyungang is not based on the same contract as the lawsuit in this case, and the claim does not have a causal relationship, and a company in Lianyungang does not have the right of set-off against the aerospace company. In the end, the court rejected the counterclaim filed by a company in Lianyungang, and only conducted a substantive trial of the lawsuit filed by the aerospace company. 2. Situations that are easily overlooked when exercising the right of set-off. 1.The way to exercise this can be a lawsuit, but the most economical way is to give notice. 2.Once exercised, the right to form the right of set-off is retroactive from the time when the conditions for set-off are fulfilled. 3.Claims that have expired the statute of limitations shall not be set off as active claims, otherwise the result of compulsory performance of natural debts will be produced. 4.There shall be no conditions or time limits attached to the set-off, but there are exceptions: first, the additional conditions have been agreed by the counterparty; Second, the achievement of the conditions is purely determined by the counterpart. 5.Under normal circumstances, the parties can exercise the right of set-off as long as they owe each other's debts, and it is not required that the two debts occur in the same contract. In this case, the identity of the contract was required because of the circumstances of the transferred creditor's rights, so it was required that the claims of a certain company in Lianyungang and the claims transferred by the aerospace company were based on the same contract.