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n See offset.
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Though set-off is often credited with performing a security function, (46) the conventional view is that a bare right of set-off does not create a PPSA "security interest.
Legal or equitable set-off does not involve a security interest because it exists without agreement between the parties and neither party to the set-off acquires a property interest.
I ask, in relation to a series of transaction scenarios featuring set-off rights, whether each such arrangement creates, as a matter of substance over form, a PPSA security interest.
Does Bo, simply by virtue of having the right of legal set-off against Al, acquire a proprietary interest in Al's intangible property that secures payment of an obligation (i.
For each of Al and Bo, this right of legal set-off simply exists, independent of the presence or absence of contractual set-off provisions.
In Scenario B, the Bank's right of set-off arises under contract.
The Bank's right of contractual set-off entitles it to set off the operating line balance against Al's deposit account balance: that is, by contractual arrangement, extinguish Al's deposit account balance in satisfaction of the operating line balance.
An important distinction is that the set-off is only applied to economic damages.
While not in the opinion, note that the jury found that the plaintiff's comparative negligence was greater than the defendant's and, as such, there was no joint and several liability for the economic damages, this apparently is why the trial court granted a set-off for the entire amount rather than by the Wells ratio formula, see F.
Plaintiff appealed and argued that under the set-off analysis, no set-off should have been granted because different damages were sought from the settling tortfeasors.
However, the argument is a bootstrap to do away with apportionment of fault by applying a set-off analysis; an argument which is easily confused but is flawed.
The interaction of Fabre and the Wells set-off analysis in cases in which one or more defendants settle prior to trial can be confusing.