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Unaccepted offers when insolvency proceedings open: which remain effective?

Sections 26(2) and 26(3) IO distinguish offers to the debtor from offers made by the debtor. The offeror and acceptance timing determine the applicable rule.

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3 October 2026, Mag. Bernhard Brandauer, Rechtsanwalt

Sections 26(2) and 26(3) of the Austrian Insolvency Code (IO) govern offers to conclude a contract that have not yet been accepted when insolvency proceedings open. They distinguish an offer made to the debtor by another person from an offer made by the debtor.

In these paragraphs, the German word „Antrag“ means a contractual offer. It does not refer to an application filed with the insolvency court. The direction of the offer and whether it was accepted before proceedings opened determine which rule applies.

Two directions, two outcomes

Who made the offer?

Section 26(2) and (3) IO distinguish an offer made to the debtor from an offer made by the debtor.

Unaccepted offers when proceedings open
Situation Position at opening Effect under section 26 IO
Another person offers to enter into a contract with the debtor. The debtor has not accepted the offer before proceedings open. Under subsection 2, the offer remains in force unless the offeror’s contrary intention appears from the circumstances.
The debtor offers to enter into a contract with another person. The other person has not accepted before proceedings open. Under subsection 3, the insolvency administrator is not bound by that offer.
An offer was accepted before proceedings opened. Acceptance took place before the relevant opening point. Subsections 2 and 3 no longer address it as an open offer. The resulting contract needs separate analysis.

The German statutory term “Antrag” means a contractual offer here. The offeror and the acceptance timeline determine the distinction.

Organise the evidence

Three records show the position when proceedings open

Place the statements in chronological order before applying the relevant paragraph.

  1. 01
    Before opening
    Offer

    Identify the offer

    Keep the full offer, the parties and any conditions together.

    Record who made the offer and to whom it was addressed.

    Legal basis: Section 26(2) and (3) IO

  2. 02
    Acceptance or reply
    Acceptance

    Record each statement

    Keep any acceptance, response and available evidence of transmission distinct.

    Preserve the statement itself together with the available transmission records.

    Legal basis: Section 26(2) and (3) IO

  3. 03
    When proceedings open
    Opening

    Compare the dates

    Set the documents beside the opening record and determine whether an offer remained unaccepted.

    The documented position at opening shows whether subsection 2 or subsection 3 needs review.

    Legal basis: Section 26(2) and (3) IO

Classify the offer

What was the position when proceedings opened?

This check classifies the offer and acceptance timeline. It does not replace an individual legal review.

Discuss the specific matter with the firm.

01 Question 1

Who made the offer, and had it been accepted before proceedings opened?

Your answers

Review the documents

01

An unaccepted offer to the debtor

Section 26(2) IO keeps the offer in force unless the offeror’s contrary intention appears from the circumstances. Review the full offer and any related statements.

02

The debtor’s offer remained unaccepted

Under section 26(3) IO, the insolvency administrator is not bound by the debtor’s offer. The offer alone does not establish that a contract was concluded.

03

Acceptance before proceedings opened

An offer accepted before opening is no longer an open offer under subsection 2 or 3. The consequences of the resulting contract require separate review.

04

Offer direction or timing remains unclear

Without the full statements, the offeror or the position at opening cannot be classified reliably. Arrange the documents in chronological order.

“Antrag” in section 26 IO means a contractual offer

Sections 26(2) and (3) use the German term „Antrag“ for a party’s offer to enter into a contract. It is distinct from an application to the insolvency court.

Subsection 2 covers an offer another person made to the debtor, which the debtor had not accepted before proceedings opened. Subsection 3 covers the reverse: the debtor made the offer, and the other person had not accepted it before opening.

An offer to the debtor can remain in force under section 26(2) IO

If the debtor had not accepted an offer addressed to the debtor before proceedings opened, the offer remains in force under the statutory text. The paragraph states an exception where the offeror’s different intention appears from the circumstances.

The full offer and related statements help establish that position. Record who made the offer, who received it and which circumstances may show a different intention on the offeror’s part.

The administrator is not bound by the debtor’s unaccepted offer

Section 26(3) IO gives a different result for an offer made by the debtor. If it had not been accepted before proceedings opened, the insolvency administrator is not bound by it.

The paragraph addresses the administrator’s position. The offer does not by itself establish a concluded contract, and the text alone does not resolve every possible legal position of the other person.

The acceptance timeline separates an open offer from a concluded contract

Subsections 2 and 3 refer to an offer that had not yet been accepted before proceedings opened. Arrange the offer, any acceptance statement and the opening record by date and sender.

The statutory text does not prescribe a special form of proof for acceptance. Keep the statements and available transmission records. If their sequence is unclear, the facts needed to apply subsection 2 or 3 remain unverified.

An offer accepted before opening needs separate contract analysis

If the offer was already accepted before proceedings opened, it is no longer an open offer under subsection 2 or 3. Those paragraphs do not decide the rights and duties created by a concluded contract.

An existing contract with outstanding performance requires a separate review under the applicable insolvency rules. See Ongoing contract in insolvency: review performance and withdrawal.

What matters for classification: Keep the offer, acceptance statement and transmission records in an order that can be compared with the opening of proceedings.

The official text of section 26 IO is available in RIS

The verified statutory text is available in the Federal Legal Information System as an official full text: Read section 26 IO in RIS-OGD.

FAQ

Common questions about unaccepted offers when proceedings open

Does „Antrag“ in section 26 IO mean an application to court? +

No. Subsections 2 and 3 use it for an offer to conclude a contract.

Does an offer to the debtor remain in force after proceedings open? +

Under section 26(2) IO, an offer made before opening and not yet accepted by the debtor remains in force unless the offeror’s different intention appears from the circumstances.

Must the insolvency administrator accept an offer made by the debtor? +

Section 26(3) IO does not bind the administrator to an offer made by the debtor that remained unaccepted before opening.

What if acceptance occurred before proceedings opened? +

The offer is no longer open for the purposes of subsection 2 or 3. The legal consequences of the resulting contract require separate review.

Which records should I keep? +

Keep the complete offer, acceptance statements, replies, available transmission records and the court’s opening record. They help establish the sequence of events.

Further reading

Organise the procedure and its records

Insolvency administrator appointed: which records and information to organise first

Bring together the procedural status, documents and outstanding information.

Topics
Austrian Insolvency Codecontract offeracceptanceSection 26 IO

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