(a) Where two parties have the same type of claim (foreign exchange claims), either party may enter into its claim against the countercla claim of the other party, provided that the party making use of its right of set-off has the right to demand performance from the other party of its claim and is entitled to provide the performance according to the cross-claim of the other party. 3 The expiry of the limitation period for a given claim is not in itself the right of the creditor of that claim to use it for set-off purposes. The case is different where the debtor has invoked against the creditor the expiry of the limitation period. In this case, the debtor has made the limitation period effective by refusing the benefit on the basis of the protection of the limitation period. Consequently, the claim can no longer be sued by set-off. (f) A notice under paragraph (c) of the foregoing shall have no effect if the contract giving rise to the cross-claim is an express or implied contract (for example. B a “net cash payment against… » Clause) Prohibition of compensation or when compensation is prohibited by the legislation in force. (g) The parties may also account for reciprocal claims, regardless of the conditions set out in preceding paragraph (a) by contractual consent. 2 The conditions of compensation are a natural consequence of the specific nature of that right. Set-off presupposes first of all reciprocal claims that exist between two parties. With regard to these reciprocal claims, compensation has a dual function.
With regard to the claim of the party making use of his right of set-off, it is a private means of performance. For this reason, the obligation of the other party must be due under this claim, that is: the accounting party has the right to demand benefits and the other party has no defense against this claim. In other words, the other party cannot be required to apply the claim privately by set-off if the party declaring the set-off would not be entitled to the other party`s performance in connection with the claim without set-off. With respect to the other party`s counter-claim, set-off is a means of satisfying the party claiming the set-off. In the case of claims on the payment of money, the counterparty does not receive the amount to which it is entitled, for example by cash payment or bank transfer, but is exempted from its obligation to the reporting party. For this reason, the party declaring the set-off must have the right to satisfy the counter-requirement that the other party has against it.. . . .