Review performance and sequence
Place transaction, opening, counter-performance and payment flow in one chronology.
Creditors
Insolvency avoidance: review lawsuit, defence and restitution
How authority, restitution and court proceedings interact under the Austrian Insolvency Code.
Your insolvency law team
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.
13 August 2026, Mag. Bernhard Brandauer, Rechtsanwalt
For a possible insolvency avoidance claim it is not enough to place a payment or security in the crisis period. Authority, remedy and restitution also need to be separated.
Sections 37, 39 and 43 IO address these issues. The statutory period and the precise avoidance ground must be assessed from the complete chronology.
This article separates the enforcement of an avoidance claim from a general assumption that every crisis payment must be returned.
Order the avoidance issue
Which question comes before restitution?
Authority, performance and procedural route belong together.
| Authority | Opening order, administrator records | Who asserts the claim? |
| Performance | Payment records, security, contracts | What left the estate? |
| Proceedings | Lawsuit, defence, service | Which route and period apply? |
The precise avoidance ground and dates remain decisive.
Avoidance review
Which step is missing for the legal assessment?
The check orders authority, performance and enforcement.
Discuss the specific matter with the firm.
Is the challenged transaction documented with its date and counter-performance?
Your answers
Review the documents
Specify restitution
Review what must return to the estate or what replacement is claimed.
Clarify authority
Section 37 IO generally assigns exercise of the avoidance right to the insolvency administrator.
Do not miss the procedural route
A lawsuit and a defence have different requirements. Secure service and current court status.
Section 37 IO addresses authority
Section 37 IO addresses authority
Section 37 IO generally assigns exercise of the avoidance right to the insolvency administrator. This prevents separate and uncoordinated pursuit of the same claim.
The first review should identify who is acting and whether a court or out-of-court step has already been taken.
Section 39 IO describes restitution
Section 39 IO describes restitution
Under Section 39 IO the estate should generally receive what was lost through the challenged transaction. If return is not practicable, compensation may be relevant.
Restitution should not be reduced to a figure alone. Agreement, performance, counter-performance, possession and current condition belong in the file.
Separate a lawsuit from a defence
Separate a lawsuit from a defence
Section 43 IO permits enforcement by lawsuit or defence. The choice depends on the dispute and procedural position.
The statutory period for a lawsuit requires close attention. Do not assume a period without a full chronology of opening, transaction and procedural step.
Do not merge avoidance with a payment wave
Do not merge avoidance with a payment wave
A crisis payment is only a starting point. The ground, knowledge, preference or prejudice and legal effect each require review.
This keeps the article distinct from a blanket assertion that a payment must be returned.
Do not assume blanket restitution: Review authority, transaction, restitution and the correct court route.
FAQ
Common questions about insolvency avoidance
Who asserts the avoidance claim? +
Section 37 IO generally assigns exercise to the insolvency administrator. The procedural position must be checked.
What must be returned? +
Section 39 IO connects restitution with what left the debtor’s assets through the challenged transaction.
Is there a period for a lawsuit? +
Section 43 IO contains a period rule. Its start and end must be assessed from the opening and the specific file.
Topics
Insolvency avoidanceLawsuitDefenceEstate
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