Issues of similarity of counterclaims expressed in different currencies: theoretical and legal analysis

Abstract

Introduction. The work considers the problem of similarity determination of counterclaims, expressed in different currencies. Offset of similar counterclaims is one of the grounds for termination of obligation, established by the Civil Code of Ukraine. However, the Code does not consider main conditions of an offset, as well as it does not give an interpretation of “similarity” of counterclaims. Moreover the issue of similarity of counterclaims, expressed in different currencies is not examined enough by doctrine, as well as not established in legislation. That is the reason why case law has to form its own position on this issue. The purpose of the paper is to investigate legislation, case law and doctrine in search of a uniform and complex understanding of similarity of counter claims expressed in different currencies; make theoretical and legal analysis of possibility and terms of such an offset; and make offers to improve legislation. Results. Authors made an analysis of legislation, case law and doctrine. It showed that these sources keep to a position that counterclaims expressed in different currencies are not similar, and thus, they are not allowed to be set off. However, as a result of this work the authors found that offset of counterclaims, expressed in different currencies is neither allowed nor strictly prohibited under Ukrainian law. Case law adheres to the position that different foreign currencies do not comply with the characteristic of similarity. Authors suggest an alternative under which in case legislation entitles to use foreign currency as money, such an offset can be made. Conclusion. Pursuant to analysis made in this work, authors came to the conclusion that theoretically under certain terms setoff of counter claims expressed in different currencies can be made. Authors also make suggestions for improvement of legislation and elimination of contradictions in law enforcement. That is why authors offer to provide in legislation the possibility of making offset of counterclaims, expressed in different currencies. The Civil Code of Ukraine is an act where these rules have to be established.