The Supreme Court (Case No. 23 Cdo 713/2024) recently addressed whether parties to a contract may agree that a discount on the purchase price will be determined by an independent expert. The appellate court had argued that such an arrangement was invalid due to its alleged conflict with procedural principles.

The Supreme Court firmly rejected this interpretation. It stated that such an agreement is supported by law, reflects standard commercial practice, and enhances legal certainty between the parties. It enables effective dispute resolution and respects the contractual partners' intention to predefine settlement rules.

At the same time, the Court considered whether such a claim could be subject to set-off. The appellate court viewed the claim as uncertain and indeterminate, rejecting the possibility of set-off based on general set-off rules. However, the Supreme Court pointed out the close substantive connection between the two claims. The discount on the purchase price and the second instalment of the purchase price were both based on the same contract and were mutually conditioned. In such a situation, the Supreme Court found it fair to allow mutual set-off, even if one of the claims (the discount) required expert assessment.

An agreement that entrusts an expert to determine the amount of a discount can withstand judicial review, provided it does not raise concerns regarding public order, good morals or consumer protection. A claim arising from such a discount may, under specific circumstances, be eligible for unilateral set-off. However, not every attempt to "revise" transactional practice will succeed, particularly when it conflicts with its rational foundation and legal support.

Author: Tomáš Quirenz