unternehmensnachfolge-anwalt.at
Mag. Bernhard Brandauer, Rechtsanwalt
Which points a family business transfer agreement really needs to regulate when shares, business, balancing arrangements and security come together.
A family transfer agreement is more than a written version of what parents and children have discussed. It joins several contractual worlds: gift or mixed transaction, corporate share transfer, commercial-law transfer of the business and employment-law continuation. Only this combination turns an intention into a body of terms that carries the business into the next generation with legal certainty.
The typical points to regulate depend on what is actually being transferred. If only GmbH shares are transferred, section 76 subsection 2 GmbHG requires a notarial deed. If the business or a part of it is transferred, section 38 UGB, section 1409 ABGB, sections 3, 3a, 4 and 6 AVRAG and further provisions on the continuation of employment and obligations come into play. Anyone who chooses the structure too coarsely loses precisely the precision in the drafting that makes the transfer reliable.
This article orders the points to regulate in thematic blocks and shows which questions to decide before the first draft. It does not replace a review of the actual articles or a tax structuring exercise. For preparing a first meeting the initial consultation checklist is a useful starting point.
The check separates subject matter, consideration, security and execution. The result can be sent to the firm with your key facts.
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Define which assets are actually transferred individually and which stay in the company. Without that delimitation the drafting mixes the rules for share transfer and business transfer in ways that block precise implementation.
Provide for revocation grounds, attribution agreements, transfer restrictions and the handling of benefits and burdens up to the effective date. The notarial deed under section 76 subsection 2 GmbHG remains mandatory; the obligation to transfer also requires the notarial form.
Define which components are purchase price, provision and balancing payment. Pension, right of residence and other side arrangements need a clear legal basis and usually security in the land register or in the corporate framework. Valuations must be aligned with tax and forced-heirship issues.
Points to regulate include maturity, instalment plans, security, rescission rights, default rules and the handling of taxes and ancillary costs. The obligation and the share transfer follow the formal requirement of section 76 subsection 2 GmbHG.
Pension, right of residence or special rights of the transferor are named expressly in the agreement, with legal basis, scope and security. Land register entries, in-rem encumbrances or corporate reservations turn an intention into an effective security right.
The contract regulates internal allocation of old debts. Vis-à-vis creditors section 1409 ABGB, section 38 UGB and, on the employment side, section 6 AVRAG remain applicable. An internal indemnity is effective between the parties but not automatically against third parties.
On a business transfer the acquirer enters into existing employment relationships under section 3 AVRAG. Section 3a AVRAG governs prior information without a works council, section 4 AVRAG the continuation of collective-bargaining terms and section 6 AVRAG the joint liability for obligations arising before the transfer.
The most important point to regulate in a transfer agreement is the subject matter. When GmbH shares are transferred, the company stays the same. The transfer under section 76 subsection 2 GmbHG takes place before a notary, as does the obligation to transfer. The business does not move; the shareholder role changes. If, however, a sole proprietorship, a whole business or a delimited part of the business is transferred to another family member, the layer of business transfer is added.
Families often blur these layers unintentionally. They talk about the transfer of the firm and mean shares, customers, machinery or operational responsibility depending on the moment. The agreement has to make that differentiation visible. Only then can the correct points on articles, execution, contract migration and liability be phrased precisely.
The article on business transfer in family succession orders the operational layer. For the transfer agreement itself the takeaway is: first the structure is established, then the drafting is adapted to that structure. Reversing the order produces a document that does not match reality.
The consideration can be a pure gift under section 938 ABGB, a sale, a mixed transaction or a combination of a purchase-price element and a provision arrangement. Each variant needs a clear contractual basis. A gift requires revocation grounds, attribution agreements and rules on benefits and burdens. A sale requires purchase price, maturity, security and ancillary costs.
Valuation is not only a tax matter. It shapes balancing claims among siblings, attribution towards a later forced-heirship claim and the economic burden on the business. The article on the gift of GmbH shares and family attribution explains the civil-law attribution questions. This layer must be either included or deliberately left open, so that it does not become a later dispute.
Mixed transactions require additional care. When part of the business or the shares is transferred against a pension, right of residence or balancing payment to siblings, both values and securities must be reflected. The article on the transferor's pension or right of residence orders the security forms. It is important that these arrangements do not contradict the main transfer agreement.
When a business is acquired inter vivos and continued, section 38 UGB generally provides for the transition of business-related, non-personal legal relationships to the acquirer, unless agreed otherwise. Contractual counterparts can object within three months after due notice. The agreement must therefore disclose which contracts fall under this rule, which require specific consent and which are strictly personal.
A contract inventory is the basis: customer, supply, lease, leasing, licence, maintenance and financing contracts are recorded with counterparty, term, termination, security and consent reservations. This list is the practical anchor of the migration. The transfer agreement refers to it, assigns responsibilities for notifications and defines which clauses are individually negotiated with specific counterparties.
Notifications are not improvised on the effective date. They describe the transition, identify the new legal entity and refer to the objection right. The agreement determines who takes on the task and within which timeframes. The operational details of communication for personnel are addressed in the article on key employees during the transition phase.
Section 1409 ABGB imposes liability on the acquirer of assets or a business for known or knowable debts up to the value of what has been taken over. Between close relatives, the acquirer bears a particular burden of proof when relying on ignorance. This statutory regime cannot be overridden by an internal indemnity in the agreement. The agreement allocates internal cost, the relationship with creditors remains statutory.
For employment obligations section 6 AVRAG contains an independent liability regime between transferor and acquirer. Here too the agreement allocates internally, the statute allocates external liability. Transferor and successor should not ignore that difference; otherwise indemnities disappoint when creditors seek direct recourse against the acquirer.
A special rule applies to section 38 UGB: derogating liability agreements only take effect against third parties under the publicity requirements set out there. The agreement should therefore precisely provide for the announcement and registration steps so that liability clauses can travel to third parties. Assessing that publicity is one of the frequently underestimated drafting points.
On a pure share transfer the company remains the same employer. Employment relationships are not transferred to another legal entity. Change-of-control clauses in individual contracts remain untouched by this. On a business transfer, however, the acquirer enters into existing employment relationships with all rights and obligations under section 3 AVRAG.
Section 3a AVRAG requires, in the absence of employee representation, written prior information on time, reason, legal, economic and social consequences and planned measures. Section 4 AVRAG maintains collective-bargaining conditions and protects the regular collective-bargaining pay. The agreement defines who carries this communication and in which form the personnel list is delivered to the acquirer.
For key persons additional arrangements are useful: retention bonuses, development commitments or adjustments to employment terms remain legally separate agreements between acquirer and employee. They should not be phrased as conditions of the transfer agreement. The transfer agreement refers to them but does not create rights to the detriment of third parties.
The transfer agreement stands or falls with execution. It names the effective date, the handover modalities for documents, keys, passwords and powers of attorney, and the securing of open items. The company register entry, notarial execution and implementation of shareholder consents are chained in time. If one of the elements is missing, a suspended state arises in which neither transferor nor successor can act cleanly.
Security is not a garnish. Purchase-price instalments need realistic security, provision arrangements need in-rem or corporate anchors, and indemnities need access to actual assets. The agreement defines how these securities are structured and what happens when a commitment is not honoured. Depending on the structure, rescission rights and default rules may also be required.
The follow-up phase after the effective date is decisive. The transferor remains available for open items without stepping back into operational management. The article on family council governance shows how expectations can be structured. The transfer agreement names contact persons, timeframes and responsibilities so that the follow-up does not slip into a grey zone.
No. Under section 76 subsection 2 GmbHG the transfer of a share and the obligation to transfer require a notarial deed. A private-written contract is not sufficient either for the transfer of the legal position or for the obligation to transfer in the future.
Internal allocation can be regulated. Against creditors section 1409 ABGB, section 38 UGB and, on the employment side, section 6 AVRAG remain applicable. Derogating liability agreements only take effect against third parties under the statutory publicity requirements.
No. Section 3 AVRAG provides for the acquirer to enter into existing employment relationships. Changes to terms are examined separately and aligned with section 4 AVRAG and the applicable collective-bargaining framework.
Beyond land register entries for rights of residence or in-rem encumbrances, corporate reservations and contractual security instruments come into play. The choice depends on the type of asset, valuation and the desired level of protection.
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