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4 Austria

Stefan Tiefenthaler

From: Set-Off Law and Practice: An International Handbook (3rd Edition)

Edited By: William Johnston, Thomas Werlen, Frederick Link

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 19 April 2024

Banks and cross-border issues — Contractual set-off — Insolvency set-off — Judicial set-off

This chapter provides an overview of the law of set-off in Austria. The right of set-off in Austria is governed by general rules found in sections 1438–1443 of the Austrian Civil Code. The Austrian Insolvency Code also outlines restrictions on and extensions of the right of set-off and various modifications to the general rules. The chapter first considers set-off between solvent parties, focusing on contractual set-off, capital maintenance and other restrictions, set-off in the context of legal proceedings, and statutory set-off. It then explains set-off against insolvent parties by discussing the extension of the right of set-off in insolvency, restrictions on the right of set-off in insolvency, exceptions to the general rule on set-off, claims arising by reason of the opening of insolvency proceedings, set-off and prohibition of creditor preferences, and avoidance and fraudulent transfers. Finally, it examines issues arising in cross-border set-off.

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