Jump to Content Jump to Main Navigation

You are looking at 120 of 28 results

Contributor: Derham, Rory x
Clear All

17 Assignees, and other Interested Third Parties »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham
17.01 Consider that A is indebted to B, and that a third party, C, has an interest in the debt. This may arise, for example, because C is an assignee, or the holder of a security interest, or the beneficiary of a trust, or an undisclosed principal, or a person with subrogation rights, or a judgment creditor levying execution on B's asset in the form of the debt. If A has a cross-claim against B that would otherwise be eligible for a set-off against the debt, A would be concerned to know whether the set-off is still available notwithstanding the interest of C....

Bibliography »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham

8 Claims Susceptible to Insolvency Set-Off »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham
8.01 In the preceding chapter some general observations were made on the meaning of mutual credit and mutual dealings. The purpose of this chapter is to consider the application of the insolvency set-off section to various categories of claims. 8.02 A debt which is both presently existing and payable at the relevant date for determining rights of set-off in an insolvency1 may be the subject of a set-off. This includes a debt in equity,2 other than an equitable debt in the form of an obligation to account for a trust fund.3 8.03 Subject to a possible discount for...

15 Combination of Bank Accounts »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham
15.01 When a customer has more than one account with a bank, one of which is in credit and another in debit, it is said that the bank may in some circumstances combine, or consolidate, the accounts and proceed on the basis that there is only one debt for the balance.1 The accounts need not be at the same branch.2 Nor is it necessary that the account in credit should have resulted from a deposit by the customer. A combination may arise in relation to an account that originally was opened in the name of a third party but which became payable to the customer.3 15.02...

9 Commensurable Demands »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham
9.01 For the insolvency set-off section to apply, the demands must be commensurable, in other words the claim on each side of the account must be a money demand.1 Set-off under the Statutes of Set-off and equitable set-off are subject to the same requirement.2 A claim which is not monetary in nature is not susceptible to a set-off even if its value is measurable with precision in money terms.3 Thus, a set-off has been denied in the context of a claim for the return of specific property in circumstances where the court nevertheless accepted that the property in...

Contents »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham

Contents—Summary »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham

7 Debts, Credits, and Dealings »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham
7.01 The insolvency set-off section applies when there are mutual credits, mutual debts or other mutual dealings. It was not always in this form. The original set-off section in 17051 referred only to mutual credit, and in 1732 it was expressed in terms of mutual credit and mutual debts.2 It was not until 1869 that ‘mutual dealings’ was added.3 7.02 The courts interpreted ‘mutual debts’ as referring to debts that were both in existence and presently payable before the bankruptcy.4 It is apparent that ‘mutual credits’ would include mutual debts, in the sense that,...

Dedication »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham

Derham on the Law of Set-Off »

Rory Derham

Index »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham

1 Introduction »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham
1.01 It is difficult to give a comprehensive definition of set-off without reference to the various forms that it can take, but on a general level it can be defined as the setting of money cross-claims1 against each other to produce a balance. It provides a defence to an action, although, depending on the form of set-off, the issue need not arise in that context. The essence of set-off, in this sense of the word, is the existence of cross-demands.2 The term ‘set-off’ is also commonly used in a different sense, to describe a situation in which the damages pay-able...

11 Mutuality – Introduction »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham
11.01 For both the insolvency set-off section and the Statutes of Set-off there must be mutuality.1 Mutuality does not require that the claims should arise at the same time,2 nor that there should be any connection between them.3 It is irrelevant, moreover, that the claims may be of a different nature. As the High Court of Australia observed in Gye v McIntyre:4 ‘the word “mutual” conveys the notion of reciprocity rather than that of correspondence.’ Thus, an obligation arising out of an instrument under seal may be set off against a simple contract debt,5 and a...

12 Mutuality – Same Parties »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham
12.01 In the absence of an agency or a trust relationship which brings about mutuality in equity or, alternatively, before bankruptcy or liquidation, of a set-off agreement between the parties,1 A's right to sue B may not be set off against A's indebtedness to C.2 This applies in circumstances where B and C are related companies,3 and also where C is a director of company B4 or is the beneficial owner of company B.5 12.02 The requirement of same parties often arises in the context of joint debts and demands. Joint debtors may employ the debt in a set-off against a...

13 Mutuality – Same Right »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham
13.01 In the case of insolvency set-off, the requirement that the demands be held in the same right means that each of the parties, who is liable to the other, should be the beneficial owner of a cross-demand against the other.1 It should be compared to the Statutes of Set-off, which contemplate mutuality by reference to the legal title to the debts. Equity, on the other hand, may allow a set-off by analogy with the Statutes if there is mutuality in equity but not at law, or alternatively it may refuse to allow a set-off if there is mutuality at law but not in...

Preface »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham

Preface to the First Edition »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham

14 The Rule in Cherry V Boultbee »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham
14.01 The notion which underlies the equitable principle (commonly called the rule) in Cherry v Boultbee1 is that: ‘where a person entitled to participate in a fund is also bound to make a contribution in aid of that fund, he cannot be allowed so to participate unless and until he has fulfilled his duty to contribute.’2 It is an illustration of a more fundamental principle of equity, that he who seeks equity must do equity.3 Many of the cases concerned with Cherry v Boultbee have involved a debtor of a deceased person who is entitled to a pecuniary legacy under...

16 Set-off Agreements »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham
16.01 Parties dealing with each other may enter into an agreement for the satisfaction of their cross-demands by bringing them into an account in a set-off. The set-off may be expressed to occur immediately or upon the happening of a specified future event, or it may be at the option of one of the parties. Generally, this is not objectionable.1 It merely constitutes an agreed method of payment.2 The agreement may not be effective, however, where trust moneys are in issue.3 Thus, if a customer has deposited trust moneys into an account with a bank, and the bank,...

2 Set-Off between Solvent Parties: Common Law »

From: Derham on the Law of Set-Off (4th Edition)
Rory Derham
2.01 Prior to the enactment of the first Statute of Set-off in 1729,1 there was no general right of set-off available to a defendant in a common law action when he or she was being sued by a solvent plaintiff, as opposed to the assignees of a bankrupt.2 This denial of a set-off has been explained as being consistent with the adoption by the common law courts of strict rules of pleading and of forms of action, which were designed to reduce the question to be decided by the court as far as possible to a single, well-defined issue. It would have been contrary to that...