Set-off

See also:

• Set-off (ISDA)

You may have come to the set-off page, but chances are, you're really interested in Netting.

At its simplest, a right of set-off exists where there are cross-claims for money between a creditor and a debtor. The effect of a set-off is that both claims are discharged to the extent that they are of an equal amount, and the balance becomes owing to the party who was owed the larger amount.

But, really, it's all about netting.

So go on. Be on your way now.

Ohh, all right. A bit.

Contractual set-off

Where each party to a transaction owes the other they may agree that, instead of making separate payments, the party due to make the larger payment should simply pay the difference. Set off provisions in the ISDA Master Agreement and 2010 GMSLA tend to go a lot wider, and allow (on default) a non-defaulting party to offset amounts owing against any liabilities of any kind owed by the defaulting party. This is clearly a drastic step and ordinarily would only be exercised as an utter last resort. See:

• Set-off (GMSLA)
• Set-off (ISDA)

Equitable set-off

This is available to a debtor whose cross-claim arises from the same transaction (or a closely related transaction) as the original debt. Under this device a debtor simply deducts its claim from the debt it owes and tenders any balance to the creditor. The sums in question must be due or, if representing unliquidated damages, a good faith and reasonable assessment of the loss.

Banker’s set-off

This arises where a customer has multiple bank accounts some of which are in debit and some in credit. It is also known as the combination of accounts. It is arguably available in any situation where one party has multiple accounts with another.

Insolvency set-off

The mandatory rules of insolvency set-off are cannot be varied by agreement. In an insolvency, account must be taken of the mutual dealings between the creditor and the bankrupt. Sums due from one must be set off against the sums due from the other, except that sums due from the bankrupt cannot be included if when incurred the creditor had notice of:

• a resolution or petition to wind-up (if a company);
• an application for an administration order or of notice of intention to appoint an administrator (if a company); or
• a pending bankruptcy petition (if a natural person).

All claims, including future, contingent and unliquidated sums, must be brought into account.

Assignment and its effect on Netting and Set-off

Could a right to assign by way of security upset close-out netting such that one should forbid parties making assignments by way of security of their rights under a master netting agreement (such as an ISDA Master Agreement or a 2010 GMSLA), for fear of undermining your carefully organised netting opinions?

Generally: No.

• An assignment by way of security is a preferred claim in the assignor’s insolvency over the realised value of certain rights the assignor holds against its counterparty. It is not a direct transfer of those rights to an assignee: the counterparty is still obliged to the assignor, not the assignee, and any claim the assignee would have against the counterparty would only be by way of subrogation of the assignor’s claim, should the assignor have imploded in the meantime or something.
• “Nemo dat quod non habet”: the unaffected counterparty’s rights cannot be improved (or worsened) by assignment and, it being a single agreement, on termination of the agreement the assignee’s claim is to the termination amount determined under the Agreement, which involves terminating all transactions and determining the aggregate mark-to-market and applying close-out netting. No one can give what they do not have.
• The assignee can be in no better position than the assignor and this takes subject to any set-off. The conduct of the debtor vis a vis the assignee is irrelevant, unless it gives rise to an estoppel. See Bibby Factors Northwest Ltd v HFD Ltd (paragraphs 38 and 48).

At the point of closeout, the assignee’s right is to any termination payment payable to the Counterparty. Therefore any assignment of rights is logically subject to the netting, as opposed to potentially destructive of it.

But: This is only true insofar as your netting agreement does not actively do something crazy, like disapplying netting of receivables which have been subject to an assignment and dividing these amounts off as "excluded termination amounts not subject to netting".

I know what you are thinking. "But why on God’s green earth would anyone do that?" This is a question you might pose to the FIA’s crack drafting squad™, who confabulated the FIA’s Professional Client Agreement, which does exactly that.

See also

• Netting