Prescribed Invoice: Set-Off Remains Enforceable

Analysis of a judgment Cass. com., July 1, 2026, n° 24-20.979, by Pierre-Louis Roquet, business law attorney in Lyon.

Since 2006, a carrier operating as a sole proprietorship has been leasing a vehicle with a driver to a basalt extraction company. Fourteen years of cross-invoicing, then the break-up. On August 25, 2020, the lessor sued its client for payment of unpaid invoices. The defense was not limited to disputing the services. It produced its own invoices, issued against the claimant, and requested that the two debts be extinguished by one another. The exception de compensation (plea of set-off) was formalized in submissions dated July 1, 2022.

The Riom Court of Appeal dismissed it on September 11, 2024. The reasoning was brief. The invoices invoked in support of the set-off had been issued more than five years before July 1, 2022. On the day the exception (plea/defense) was raised, the claim supporting it was therefore prescribed. The request for set-off followed the fate of the claim.

The Commercial Chamber overturned the decision, in a judgment published in the Bulletin. The sole legal basis was: Article 1347, paragraph 2, of the Civil Code, in its version resulting from the Ordinance of February 10, 2016. The rule is stated unequivocally. Set-off produces its extinguishing effect on the date its conditions are met, not on the date it is invoked. The Court of Appeal, which reasoned on the latter, violated the text.

The Date That Matters Is When the Two Claims Met

Everything lies in the structure of the mechanism. Article 1347 states that set-off operates, subject to being invoked, up to the concurrent amount, on the date its conditions are met. The formula contains two stages that must not be confused.

The first is extinction. It is de plein droit (by operation of law). It occurs the moment two reciprocal, fungible, certain, liquid, and exigible (due and payable) obligations, as defined by Article 1347-1, coexist between the same persons. No act is required. Debts offset each other up to the amount of the smaller one, even unbeknownst to the parties if applicable.

The second stage is invocation. It is not the cause of the extinction. It is its procedural revelation. The 2016 reform introduced this reservation to preserve the ability to waive the benefit of set-off, not to subordinate the extinguishing effect to a declaration. Invocation merely observes; it does not create.

From this architecture flows the solution. If extinction occurred on the day the claims met, subsequent prescription cannot affect it. A debt already extinguished cannot be prescribed. The Riom Court of Appeal had implicitly transformed invocation into a substantive condition, subject to the five-year limitation period of Article L. 110-4 of the Commercial Code. The Cour de cassation (French Supreme Court) restores the natural order of things.

The continuity with previous law is striking. Under the former Article 1290, the Commercial Chamber had already ruled, on March 30, 2005, that since set-off operates de plein droit (by operation of law) by the sole force of law, its benefit could be invoked at any time. The case involved two carriers and revolved around the annual prescription of Article L. 133-6 of the Commercial Code. Twenty-one years later, the solution is reiterated under the new text. The 2016 Ordinance did not intend to break with this principle.

In Defense Against Collection, the Plea Changes Ground

The practical impact is immediate in invoice collection disputes, which account for a considerable portion of commercial court hearings, in Lyon as elsewhere.

The defendant sued for payment now has a clarified position. Their own claim may be old. It may even be prescribed on the day they file their submissions. This is no longer sufficient to dismiss the exception (plea). The only relevant question is the date on which the two claims became reciprocal, liquid, and exigible (due and payable), and whether, on that date, the opposing claim was still valid.

The stakes therefore shift entirely to the evidentiary domain. It is no longer a matter of dating submissions, but of reconstructing a chronological account. This requires producing invoices in both directions, with their issue dates and contractual due dates. It requires establishing exigibilité (that the claim is due and payable), which refers to agreed payment terms, payment periods, and, where applicable, formal demands for payment (mises en demeure). Finally, it requires demonstrating liquidité (that the amount is determined), which excludes claims for damages still disputed in principle or amount.

The work is thankless, but decisive. In a continuous relationship of fourteen years, like the one submitted to the Riom Court of Appeal, the demonstration requires a bill-by-bill examination and the reconstruction of a de facto current account. It is prepared upstream of the summons, not at the pleading hearing. Lyon-based companies involved in long-term business relationships, in transport, trade, or public works, have a tangible interest in maintaining a dated and documented record of their reciprocal claims.

What the Judgment Does Not Say

The solution is firm. Its scope is limited. Three limitations deserve to be highlighted.

The first is the most important. The judgment does not state that the exception de compensation (plea of set-off) escapes prescription. It states that prescription is measured from a different date. If the defendant's claim was already prescribed on the day the conditions for set-off were met, it was not exigible (due and payable) and no extinction could have occurred. Prescription fully retains its authority. It merely changes its measurement point.

The second concerns procedure. The Court does not rule on the procedural regime of invocation, nor on the possibility of raising it for the first time before the Court of Appeal, nor on its articulation with the inadmissibility of new claims. It does not expressly qualify the exception as a substantive defense, although the logic of the de plein droit (by operation of law) extinguishing effect naturally leads to this conclusion.

The third relates to the specific facts of the case. The dispute is purely contractual and involves two professionals. Special regimes remain intact: set-off in procédure collective (collective insolvency proceedings), unseizable claims under Article 1347-2, judicial set-off of debts that are not yet liquid. The judgment does not touch upon these.

Nevertheless, the Bourges Court of Appeal, seized on remand, will have to re-examine the parties' accounts since 2006. This is where the principle solution will meet the reality of the evidence.

Frequently Asked Questions

Can I invoke set-off even if my own invoice is prescribed?

Yes, on one condition. Your claim must not have been prescribed on the day the two claims became reciprocal, liquid, and exigible (due and payable). At that moment, extinction occurred de plein droit (by operation of law). The time elapsed thereafter, until your submissions, is irrelevant.

On what date does set-off extinguish reciprocal debts?

On the date its conditions are met, and not on the date you invoke it. This is the contribution of the judgment of July 1, 2026. Invocation remains necessary since the 2016 reform, but it only reveals an extinction that has already occurred.

What must be proven to invoke set-off as a defense to a payment action?

The existence of two reciprocal, fungible, certain, liquid, and exigible (due and payable) claims, and above all, the date on which these conditions were simultaneously met. This involves invoices from both sides, their contractual due dates, and, if necessary, mises en demeure (formal demands for payment). Chronology is at the heart of the case.

Must set-off be invoked within a specific deadline?

The text does not impose any. As early as 2005, under the former Article 1290, the Commercial Chamber ruled that the benefit of set-off could be invoked at any time. The 2026 judgment confirms this interpretation under Article 1347. Civil procedure rules specific to each instance naturally remain applicable.

Can a disputed claim be set off?

No, not under statutory set-off (compensation légale). Liquidity is lacking. A claim for damages whose amount is debated is not liquid and cannot produce an automatic extinguishing effect. In such cases, judicial set-off (compensation judiciaire), which has a distinct regime, must be sought.

My client is claiming old invoices while I myself have claims against them: what strategy should I adopt?

First, establish the complete chronology of cross-invoicing. Identify the date of the first coexistence of liquid and exigible (due and payable) claims. If your claim was valid at that time, invoke set-off without fearing prescription. This is a frequently under-utilized defense strategy in collection cases.

Does this solution apply to claims arising before October 1, 2016?

The judgment is based on Article 1347 resulting from the Ordinance of February 10, 2016. For prior obligations, the former Article 1290 remains applicable. The result is identical: the judgment of March 30, 2005, already allowed for the invocation at any time of a set-off operating de plein droit (by operation of law).

Sources

• Cass. com., July 1, 2026, n° 24-20.979, published in the Bulletin
• Article 1347 du code civil
• Article 1347-1 du code civil
• Article 1347-2 du code civil
• Ancien article 1290 du code civil, abrogé au 1er octobre 2016
• Cass. com., March 30, 2005, n° 04-10.407, Bull. 2005, IV, n° 72
• Article L. 110-4 du code de commerce
• Article 2224 du code civil, délai de droit commun de cinq ans