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
Separation rights and retention of title
Identify goods or machinery in the estate through contracts, markings and payment records.
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.
Section 44(1) IO concerns assets in the insolvency estate that do not belong, in whole or in part, to the debtor. Whether a proprietary or personal separation right exists is determined under the general principles of law. The wording on an invoice is therefore not decisive on its own. The legal basis and the identity of the specific asset must be established.
Suppliers, leasing companies, lessors and custodians need a coherent evidence structure covering the asset, chain of title, possession, markings, location and payment flow. The separation right check and the goods or machinery checklist identify gaps before the estate is contacted.
Six evidence fields must identify the same asset
Start with the asset rather than the unpaid amount. Trade description, model, serial or batch number, photographs and delivery records must identify the same goods or machinery. Record who accepted it, who currently possesses it and where it is located.
Then trace title from acquisition or manufacture through delivery to the debtor. Contracts, confirmations, payments and accounting records must form a consistent timeline. Markings on the asset and current location evidence connect the paperwork to the physical object.
- Asset: model, quantity, serial or batch number and condition
- Chain of title: acquisition, agreement, delivery and any intermediate disposition
- Possession: recipient, current user and actual control
- Markings: label, inventory number, engraving, photograph or storage place
- Location: last confirmed site and any relocation
- Payment flow: price, instalments, credits and allocation to deliveries
An invoice alone is not enough
An invoice usually records billing. It does not by itself prove every stage of agreement, title and identification. The supporting evidence depends on the asserted legal basis.
| Question left open by the invoice | Evidence that completes the review |
|---|---|
| Was retention of title agreed in time and incorporated? | Order, confirmation, contract and demonstrably incorporated terms |
| Is this the specific asset? | Delivery note, serial or batch number, photographs and handover record |
| Is there ownership or only a payment claim? | Chain of title, payment evidence and the ownership rules applying to the contract |
| Where is the asset now? | Current location evidence, inventory, stock records and administrator correspondence |
| Was the asset altered or transferred? | Production records, bills of material, sale documents and traceable payment routes |
Keep each legal basis and later change separate
For retention of title, review agreement, incorporation, the particular delivery and whether the goods remain identifiable. Leasing and rent are use arrangements. Custody requires the agreement explaining why the debtor holds the asset. None of these labels replaces evidence relating to the actual object.
Processing or attachment may alter the proprietary analysis and requires separate review of both the agreement and what physically occurred. If the asset was resold, establish when, to whom and under which contract. The mere existence of sale proceeds does not allocate them automatically to the original owner.
Substitute separation requires a specific proceeds trail
Section 44(2) IO deals with a sale of such an asset after insolvency proceedings were opened. It distinguishes between consideration already paid and consideration still outstanding. It is not a general rule that every later receipt replaces the asset automatically.
A review of substitute separation therefore needs the original asset, date of sale, sale contract, invoice to the buyer and a traceable route for the specific consideration. Section 44(3) IO also addresses reimbursement, concurrently with return, of certain expenses incurred for the asset or in obtaining the consideration.
- Evidence of sale after proceedings opened
- Connection between the sold asset and the original separation basis
- Specific record of paid or outstanding consideration
- Separate record of expenses under section 44(3) IO
Do not use self help to remove or realise assets
An asserted ownership position does not justify removing goods or machinery from the premises, shutting down equipment or realising assets without authority. Preserve evidence and coordinate the next step legally and with the insolvency administrator.
A request to the estate should identify the asset, legal basis, chain of title, possession and supporting records. Any unpaid purchase price remains analytically separate. Only for that distinct insolvency claim does the guide on claim filing instead of ordinary collection provide the next route.
Legal source and direct resources
The primary source is section 44 IO in Austria’s Legal Information System. The currently retrievable version has applied since 27 July 2021. It refers separation rights to the general principles of law and addresses a post-opening sale and certain expenses in subsections 2 and 3.
The glossary entries on separation rights, substitute separation and retention of title provide direct explanations. These resources organise evidence but do not determine an entitlement automatically.
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.
When may a separation right arise? +
Where an asset in the estate does not belong to the debtor, subject to the specific ownership and possession facts.
Is an invoice sufficient proof of ownership? +
Not always. Contract, ownership terms, delivery, payment and identification should be read together.
What if the asset was sold after proceedings opened? +
Section 44 IO contains a substitute separation rule whose requirements need individual review.
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.
Insolvency avoidance
Document payments and security received during the crisis and assess the relevant context.
Directors and shareholders in a crisis
Separate filing duties, crisis records and shareholder loan issues.
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