SIX PRELIMINARY POINTS
For the purposes of this chapter, the following legal systems have been taken into account: Austrian law, Dutch law, English law, French law, German law, Greek law, Italian law, Scots law, Spanish law and Swedish law. Belgian, Danish, Finnish, Irish and Portuguese law have been insufficiently accessible to me. Following the approach adopted, for instance, by Zweigert and Kötz, French, English and German law are regarded as the prime exponents of the three major ‘legal families’ traditionally recognized within Europe. Specific attention will also be paid to Dutch and Italian law in view of the fact that both countries, in the process of recodifying their private law, have drawn on the (continental) comparative experience and can no longer simply be regarded as members of the ‘Romanistic’ legal family. But, as will become apparent, other legal systems (such as, in the present context, the Nordic ones) are also able to contribute valuable experiences.
The first two propositions are straightforward. (ⅰ) All legal systems under consideration recognize that a debtor may, under certain circumstances, defeat his creditor's claim in view of a cross-claim against that creditor. All legal systems, in other words, recognize the institution of set-off (compensation/Aufrechnung/verrekening/kvittning). (ⅱ) The most important effect of set-off in all legal systems consists in a discharge of the obligations of the debtor and the creditor towards each other, as far as they are coextensive.
Two more preliminary points should be uncontroversial.