Page - 198 - in Austrian Law Journal, Volume 2/2021

ALJ 2021 Nunner-Krautgasser/Weidinger 198 revived should the insolvency proceedings be terminated pursuant to § 123a IO. This provision serves to safeguard the pari passu-principle. In addition to that, creditors with claims for segregation of property and secured creditors are subject to special rules which aim at facilitating debt discharge by extinguishing preferential rights relating to the debtor's income:150 If insolvency proceedings are initiated before the 15th of the month, liens on the income of the debtor acquired by enforcement by a court, administrative authority or financial authority expire at the end of the month; if insolvency proceedings are initiated on or after the 16th of the month, these liens expire at the end of the following month (§ 12a [3] IO). If the income was ceded or pledged before the initiation of the insolvency proceedings, however, the respective preferential rights expire only after the end of a period of two years, calculated from the end of the month in which insolvency proceedings were initiated (§ 12a [1] IO). The term "income" is to be understood in a wide sense;151 for example, it also includes royalty claims of artists,152 claims for child support and private supplementary pensions.153 Creditors with claims against the estate ("Massegläubiger") have claims which regularly arise after the opening of insolvency proceedings; they are to be satisfied preferentially and in full.154 These claims are listed in § 46 IO.155 Such claims must be satisfied without delay as soon as they are established and due. In the case of self-administration, this can be done either by the court or by the debtor (or, if self-administration has been withdrawn, by the insolvency administrator).156 Creditors with claims against the estate can directly demand payment from the debtor (respectively the insolvency administrator); should satisfaction of the claim be refused, such creditors can turn to the insolvency court or sue to enforce their claim.157 A special position is held by insolvency creditors entitled to set-off ("Aufrechnungsberechtigte"): Such insolvency creditors do not have to lodge their claims in the insolvency proceedings either (§ 19 IO). Unlike under general civil law, the claims do not have to be due and may also be conditional; the creditor’s claim may even be of a non- monetary nature (see also § 14 [1] IO).158 The set-off is not bound by any time limit and can be declared either to the debtor in self-administration or to an appointed insolvency 150 Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 207; Mohr, Privatinsolvenz3 Rz 219; Kodek, Insolvenzrecht2 Rz 453; Schneider, Privatinsolvenz3 40. 151 Kodek, Insolvenzrecht2 Rz 578; Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 207; Schneider, Privatinsolvenz3 41; Mohr, Privatinsolvenz3 Rz 219. 152 OGH ZIK 2004/262 = EvBl 2005/60 = ÖJZ-LSK 2005/26 = ÖBA 2005/1276 = RdW 2005/207 = SZ 2004/140. 153 Schneider, Privatinsolvenz3 41. 154 Kodek, Insolvenzrecht2 Rz 136; Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 187. 155 Nunner-Krautgasser in Nunner-Krautgasser/Reissner 1 (37); Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 188; Kodek, Insolvenzrecht2 Rz 137; Mohr, Privatinsolvenz3 Rz 244; Schneider, Privatinsolvenz3 34. 156 Mohr, Privatinsolvenz3 Rz 245; Schneider, Privatinsolvenz3 34 et seq; Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 194. 157 Nunner-Krautgasser in Nunner-Krautgasser/Reissner 1 (37); Schneider, Privatinsolvenz3 35; cf. Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 195. 158 Schneider, Privatinsolvenz3 49; Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 186; Mohr, Privatinsolvenz3 Rz 237; Kodek, Insolvenzrecht2 Rz 282.