First identify whose rights and duties are affected
Record the business concerned, your role, the case reference and the outcome you seek. This shows whether the first issue is a claim, ownership, directors’ duties or an acquisition.
Focus area
Acquisition from insolvency
Review the procedural stage, estate, data room and approvals before making an offer.
Prepare your documents
What should you clarify before the review?
Answer two questions about your role and the documents available. The result identifies missing records and prepares the next steps for individual review.
Which role best describes your position?
Your answers
Review the documents
The documents are ready for focused legal review
With organised records, the legal question can be tested against the current procedural status and applicable law.
Close the documentary gaps first
Secure the contract, payment records, court notice and communications before making a legal or commercial decision.
Before making an offer for a company or business unit after insolvency proceedings have opened, eight points must be clarified separately: proceedings, authority to dispose, acquisition perimeter, third party rights, data room, employees and contracts, conditions, and handover. General transaction review starts only after that groundwork.
This page covers only the insolvency law framework. General deal structure, due diligence and transaction documents are explained in Distressed M&A in Austria.
1. Establish the proceedings from official notices
An insolvency petition, a media report or an economic crisis does not prove that proceedings have opened. Under section 2 IO, the legal effects begin on the day after public notice of the insolvency order.
Review the specific insolvency notice and Companies Register record. Section 77a IO includes registration of the type of proceedings, any debtor in possession status and the administrator.
2. Verify authority to dispose of assets and enter into contracts
After proceedings open, acts of the debtor concerning the insolvency estate are ineffective against insolvency creditors under section 3 IO. This does not support a blanket statement that the existing legal entity can never be a contracting party.
The appointment, function and authority of the insolvency administrator must be read from section 80 IO, section 83 IO, the insolvency notice and any published restrictions. Authority requires separate confirmation where the debtor remains in possession.
3. Define the acquisition perimeter and estate
Under section 2 IO, the estate comprises property subject to enforcement that belongs to the debtor when proceedings open or is acquired during the proceedings. Not every item at the premises therefore belongs to the estate.
Prepare a perimeter list for machinery, inventory, receivables, trade marks, software, data and other rights. Record ownership, location, identifiers and transfer evidence. For a business unit, show which elements together form an operational unit.
- Acquisition perimeter with serial numbers, registers and contract references
- Items expressly excluded from the transfer
- Missing evidence and disputed allocations
4. Check third party rights asset by asset
Separation rights over items not belonging to the estate and rights to preferential satisfaction are generally unaffected by the opening of proceedings under section 11 IO. A sale from the estate is not free of encumbrances merely because insolvency proceedings are open.
Check retention of title, leases, rentals, pledges and other third party positions for each asset. The guide to separation rights and retention of title explains the evidence needed to allocate an asset.
5. Read the data room as an evidence matrix
The data room does not confirm that an item belongs to the estate. Match every item in the acquisition perimeter to title evidence, third party rights, contracts, permits and unresolved disputes.
Record each gap as a question, condition or exclusion in the offer. The insolvency acquisition check structures these procedural questions but does not value the business or provide a general M&A risk score.
6. Address employees and contracts separately
The Insolvency Code does not establish an automatic transfer of all employees, customer contracts, licences or permits to an acquirer. For each position, identify whether it belongs to the intended operation, which legal act is required and which consent or regulatory review remains outstanding.
Employment, tax, competition and sector specific consequences require separate review. The checklist for acquiring a business unit from insolvency helps compile documents and open handover points before an offer.
7. Specify conditions and the approval chain
For a sale or lease of the undertaking, all movable fixed and current assets, an operationally necessary part, or immovable property, section 117 IO requires approval by the creditors committee and the insolvency court. It also contains rules on public notice of the intended sale and statutory waiting periods.
Whether section 117 IO covers the specific acquisition perimeter must be assessed separately. The offer and contract should identify the required resolutions, approvals and evidence as conditions. Section 116 IO and section 118 IO govern additional procedural steps.
8. Make handover and the effective date provable
Section 119 IO governs a court sale of estate property upon application by the insolvency administrator. It does not provide a universal handover record for every acquisition of a company or business unit.
Document the inventory, delivery of possession, keys and access rights, data copies, transfer of responsibility, outstanding approvals and the economic effective date. Keep any unresolved item in the handover record as a reservation with a responsible person and required evidence.
Statutory framework for the acquisition
Sections 2, 3, 11, 77a, 80, 83 and 116 to 119 IO are particularly relevant to an acquisition from insolvency. The specific insolvency notice, Companies Register record and court orders provide the current procedural position for the transaction.
Continuation and timing of a sale may also depend on sections 114a, 114b and 114c IO. Align the bidding period and availability of the business unit with the actual sale process.
General information on Austrian insolvency law as at July 2026. The assessment depends on the individual facts and current procedural status.
Frequently asked questions
What clients often ask.
Is every insolvency acquisition an asset deal? +
No. The Insolvency Code does not prescribe a general deal structure. The acquisition perimeter, proceedings, authority and approval chain require specific review. General transaction structuring is covered at unternehmenskauf-anwalt.at.
Does everything at the premises belong to the estate? +
No. Under sections 2 and 11 IO, estate ownership, separation rights and preferential rights must be checked for each material asset.
What must be clarified before an offer? +
Proceedings, authority to dispose, acquisition perimeter, third party rights, data room, employees and contracts, conditions, and handover. The check identifies information gaps but does not value the business or predict an outcome.
Related topics
This may also be relevant to you.
Creditors in insolvency proceedings
Review the basis of the claim, evidence, schedule status and commercial next steps.
Separation rights and retention of title
Identify goods or machinery in the estate through contracts, markings and payment records.
Insolvency avoidance
Document payments and security received during the crisis and assess the relevant context.
Would you like us to review a claim, owned goods or a decision in a business crisis?
Tell us your role, the business concerned and the procedural status. We respond within one business day.
Direct line to the firm.
Address
BRANDAUER Rechtsanwälte GmbH Giselakai 51 5020 Salzburg
Phone
+43 662 6280000