It is well-known that Article 153.2 of the Consolidated Text of the Insolvency Law (TRLC)—just like the former Article 58 of the Insolvency Law—establishes that “Once insolvency has been declared, set-off of the debtor’s claims and debts shall not proceed, except for those arising from the same legal relationship.”
However, in applying this provision, the First Chamber of the Supreme Court seems to consolidate an interpretive line that distinguishes set-off from the mere settlement of balances arising from the same contract. If, by virtue of the same contract—and apparently for a single cause—both parties become creditor and debtor of each other, cross-claims may be set off, even if one of them is pre-insolvency and the other post-insolvency.
Thus, Supreme Court Judgment 963/2024, dated July 9, addresses the controversy surrounding the possibility of setting off claims within an insolvency procedure, specifically when these claims derive from the same sale contract that has been terminated due to a breach of an express resolutory condition.
To resolve the case, the Supreme Court makes a fundamental distinction between two legal concepts: the set-off of claims and the settlement of contractual balances.
In the set-off of claims, two independent debts that preexist separately are extinguished. That is, they do not arise from the same legal relationship, but each debt has its own cause and origin. These independent debts coincide at a certain point, and the parties must settle them.
Conversely, the settlement of contractual balances does not refer to independent debts but to claims and debts arising from the same legal relationship. In this case, it is not about settling preexisting debts, but about determining the final balance of a single legal relationship, where the debts and claims are intertwined.
In this specific case, the Supreme Court determines that the claims of the buyer (Mesima) and the seller (Aerópolis) are not independent but stem from the termination of the same sale contract. The buyer’s claim for the return of the purchase price and the seller’s claim for damages under the penalty clause do not arise before or independently of the termination of the contract, but are generated jointly and indissolubly as a direct consequence of the termination.
Therefore, this is not a case of set-off, a legal figure that would indeed be affected by the prohibition under Article 153.2 LC in the context of insolvency. Instead, it is a settlement of a contract that has already been terminated, where the goal is to determine the final balance of that single legal relationship, considering the claims and debts arising from the termination of the contract.
The literal words of the ratio decidendi of the cited judgment are as follows:
“In this case, the two claims whose set-off was sought by the plaintiff (Aerópolis), now appellant, stem from the same contract and are a consequence of exercising the resolutory condition: on one hand, the claim that the buyer (Mesima) has against the seller for the return of the amount paid as the purchase price (€646,468, plus 16% VAT), plus legal interest; and on the other hand, the claim that the seller, who exercises the resolutory condition, has for damages under the penalty clause (20% of the purchase price, excluding VAT, plus the agreed update -1% per month-). For this reason, even if it were considered that the claim against the insolvent buyer was prior to the declaration of insolvency (which is not currently under discussion), its set-off with the claim in favor of the insolvent buyer would not be affected by the prohibition of set-off under Article 58 LC, according to the judicial interpretation of this provision.”
The jurisprudence of this chamber, as recalled in judgment 181/2017, of March 13, has held that in cases such as the present, the prohibition of set-off under Article 58 LC does not apply, since it is not a true set-off, but rather a settlement of claims and debts arising from the same contractual relationship: “In reality, we are not dealing with a true set-off, that is, a substitute for payment where a debt is extinguished to the extent that it coincides with another distinct debt, when each of the obligors is primarily bound, and is also the principal creditor of the other, and the other requirements of Article 1196 of the Civil Code are met. We are dealing with a situation of settling a single contractual relationship from which obligations have arisen for both parties. In judgments 188/2014, of April 15, and 428/2014, of July 24, we have held that, in such cases, even when the contractual relationship from which insolvency claims arise, it is a mechanism for settling the contract and not a set-off to which Article 58 of the Insolvency Law would apply.”
In cases like the present, where the termination of a contractual relationship has occurred, reiterating this doctrine, we have added that “in reality, it is more of a mechanism for settling an already terminated contract” (judgment 188/2014, of April 15).”
In summary, the Supreme Court, by determining that this is not a case of set-off, but a contractual settlement, concludes that the prohibition under Article 153.2 LC does not apply, since this provision specifically refers to set-off of claims, not to the settlement of balances arising from the termination of the same contract.