§ 19-26 Contract - Set-off

• Library: South Carolina Requests to Charge - Civil (SCBar) (2016 Ed.)

§ 19-26 Contract - Set-Off

Set-off is a remedy employed by a defendant to discharge or reduce the plaintiff's demand. A set-off is claimed by a party when sued under which the party seeks to cancel the amount claimed against the party. A set-off is the equitable right to cancel or offset debts or demands.

As a general rule in equity, as at law, it is essential to the establishment of a set-off that the claims or debts be mutual, that is, they must subsist or be owing, between the same parties in the same right or capacity, and must be of the same kind or quality. Equity will not ordinarily allow a set-off of debts accruing in different rights or in dissimilar capacities.

Ordinarily, set-off becomes part of a single controversy between the parties, requiring only one verdict and one judgment according to the facts. Generally, if an established set-off or counterclaim is less than the plaintiff's demand, the plaintiff has judgment for the residue only.

See Brasington Tile Co. v. Worley, 327 S.C. 280, 491 S.E.2d 244 (1997)(with respect to set-off, courts generally do not require same strict degree of mutuality as is required in counterclaim), superseded by statute on other grounds, JRS Builders, Inc. v. Neunsinger, 364 S.C. 596, 614 S.E.2d 629 (2005); South Carolina Nat'l Bank, Greenville v. Hammond, 260 S.C. 622, 198 S.E.2d 123 (1973); Brown v. Lowe, 182 S.C. 9, 188 S.E. 182 (1936)(right to offset mutual demands is founded upon equitable principles, and tendency of courts is to liberalize rather than restrict such right); Elliott v. Carroll, 172 S.C. 276, 173 S.E. 908 (1934)(in absence of statutory provisions to contrary and subject to certain exceptions, it is general rule of practically universal application that to warrant a set-off, demands must be mutual and subsisting between same parties, and must be due in same capacity or right, and there must be mutuality as to quality of right; in equity, as at law, right of set-off is reciprocal, and only mutual claims and such as are in same right can be set-off); Id. (equitable right of

...