Template:Insolvency set-off capsule

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It has been treated as an authoritative statement of English law since 1972[1] that you cannot contract out of insolvency set-off. The insolvency set-off rules (currently made (British) flesh by the Insolvency Act 1986) operate automatically and are mandatory upon the commencement of winding-up.

The administrator must take account of all dealings between the creditor and the bankrupt (including future and contingent obligations and unliquidated sums owing). 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 the bankrupt debtor incurred them, the creditor knew of existing formal bankruptcy steps against that debtor:

  • 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).

Therefore a bank cannot agree not to exercise the right to combine accounts.[2]

  1. See National Westminster Bank Ltd v Halesowen and in 1995, Stein v Blake
  2. Interestingly, this is not the case under the Swiss Bankruptcy Code.