How suppliers should review the opening time, payment status and possession of goods in transit under section 45 IO.
BRANDAUER Rechtsanwälte
Insolvency law, Salzburg and throughout Austria
We review the procedural status, contracts, payment records and security, then explain which legal question needs to be addressed next.
A supplier learns that the buyer has entered insolvency while the ordered goods are still with the post, a parcel service or a freight carrier. A specific question now arises: can the goods be recovered before delivery?
Section 45 IO provides for a right of pursuit where goods have been dispatched from another place to the debtor and have not been fully paid. The key boundary is reached where, before proceedings open, the goods have arrived at the place of delivery and entered the possession of the debtor or another person for the debtor.
Record the opening time, route, delivery place, actual possession and payment status in one chronology. The general change from ordinary collection to claim filing is addressed in the guide to filing a claim in debtor insolvency.
This check organises dispatch, payment status and possession. It does not finally determine the right of pursuit.
Discuss the specific matter with the firm.
Arrange the opening time, dispatch proof, shipment status, delivery place and payment status. Inform the carrier and insolvency administrator factually about the identified goods and coordinate the next step legally.
Record the time and place of arrival and the person who took possession. Section 45 IO draws an important boundary for this situation. Whether a separate ownership position exists under section 44 IO depends on the contract, asset and possession.
Section 45 IO requires dispatched goods and a purchase price that has not been fully paid. Secure the order, dispatch proof, invoice, payments and precise goods status before assessing recovery.
The right of pursuit attaches to a specific movement of goods. The goods must have been dispatched from another place to the debtor. The purchase price must also remain unpaid in full. The order, confirmation, delivery record, invoice and payment schedule must therefore identify the same shipment.
The provision refers to a seller or buying commission agent. The first review should establish who dispatched the goods, who owes payment and which delivery corresponds to the outstanding position. A consolidated invoice without an allocation to individual shipments makes that review difficult.
The recovery route must be kept separate from the monetary claim. Recovery concerns the goods. An unpaid purchase price requires its own schedule and may need to be dealt with under the rules of the insolvency proceedings.
Section 45 IO connects the timing of dispatch, the opening, arrival and possession.
| Review field | Evidence | Importance for the assessment |
|---|---|---|
| Dispatch Goods dispatched from another place | Order, delivery record, shipping instruction and tracking number | The dispatch must be attributable to the specific delivery and debtor. |
| Payment status Purchase price not fully paid | Invoice, bank records, part payments and credits | Part payments should be allocated to the relevant delivery; a global balance may be insufficient. |
| Arrival Delivery place reached before opening or not yet reached | Tracking, freight documents, timestamps and receipt data | The arrival time must be compared with the opening of proceedings. |
| Possession Debtor or another person for the debtor | Receipt, warehouse entry, handover and recipient | Section 45 IO names possession as an additional boundary for the right of pursuit. |
The table organises the facts. Enforceability of recovery depends on the complete file.
Start with the court notice and the precise time when proceedings opened. Place the transport status of the same shipment beside it. A general tracking entry stating “delivered” may be insufficient where neither the time nor the recipient is clear.
Freight deliveries may involve a dispatch place, transit depot, delivery place and recipient in different locations. Parcel services may involve collection points, neighbours or reception desks. For section 45 IO, establish whether the goods reached the delivery place and entered possession for the debtor.
Also record events after the opening. A later delivery attempt, return or redirection must not be confused with the position at the opening time. The chronology should state the date, time and evidence for every stage.
A concise evidence-based chronology supports communication with the carrier and insolvency administrator.
The right of pursuit under section 45 IO addresses the specific situation of dispatched goods. If the goods arrived at the delivery place and entered the stated possession before the opening, that fact needs a separate assessment. An unpaid invoice alone does not answer the question.
For an asset already held by the buyer, section 44 IO may provide a different framework where ownership is asserted. That requires a complete review of the contract, ownership, asset identity and possession. A general retention of title clause is not automatically enforceable on that basis.
Keep the claim, goods and security in separate parts of the file. This shows which goods are sought, which amount remains outstanding and whether a separate claim against another person or under security also needs review. The separation rights and retention of title topic provides further guidance for assets already held by the buyer.
No. The goods must have been dispatched from another place to the debtor and the purchase price must not have been fully paid. Arrival and possession before the opening also matter.
A general status may not be enough. The relevant facts are the time, delivery place and person who took possession. Secure the carrier’s detailed data.
The invoice and recovery of the goods are separate positions. The outstanding amount needs its own schedule and must be dealt with according to the actual procedural status.
No. Section 44 IO may provide a different framework where ownership is asserted. The contract, asset identity and possession still require complete review.
Separate goods, invoices and security in the supplier file.
Review identity, location and separation for goods already held.
Assess ownership and possession for assets in the estate.
Record dispatch, identity, location and payment flow in order.
Review further deliveries and performance status separately.
Tell us your role, the business concerned and the procedural status. We respond within one business day.
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