Savings Account Balances no Safeguard against Set-offs

Aug 20, 2026 Benn-Ibler Rechtsanwälte

In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) deliberated on the legal ramifications of the assignment, for security purposes, of a right to withdrawal from a large-sum savings account (Grossbetragssparbuch).

After a limited liability company (GmbH) had become insolvent, the right to withdraw from a large-sum savings account held with the defendant bank for security purposes was assigned to the claimant. Approximately EUR 15,000 remaining in the savings account was transferred to the claimant. The bank only became aware of the assignment following the initiation of insolvency proceedings against the GmbH. Thereafter, the claimant requested that the bank release the balance. The bank declined this request, and its decision was subsequently affirmed by the OGH.

The principal issue concerned the validity of the assignment’s disclosure. In cases involving assignment by way of security, it is essential that the assignment be readily identifiable to third parties so that prospective creditors of the assignor can ascertain that the assigned claim is no longer among the assignor's liable assets. The bank argued that merely transferring the savings book was insufficient for this purpose. However, the OGH rejected this position, concluding that the transfer of the savings book produced an outward effect analogous to the transfer of a movable item used as security. Thus, it was apparent to third parties that the previous creditor had relinquished control over the savings book.

An additional argument presented by the defendant proved decisive in the outcome. The bank had offset its existing claims against the insolvent company with the payment claim arising from the savings book. The OGH affirmed the lawfulness of this set-off. Although the payment claim had not yet matured—owing to the absence of presentation of the savings book—it was deemed to have arisen upon execution of the savings deposit agreement and the deposit of funds. Accordingly, when insolvency proceedings were initiated against the original creditor, the bank was entitled under Section 19(2) of the Austrian Insolvency Code (Insolvenzordnung, IO) to set off against a payment claim that had not yet fallen due.

The OGH did not accept the claimant’s contention that the claimant was entitled to rely upon the balance indicated in the savings book. It should be emphasised that the essence of the claim is unaffected by the assignment. Notably, the legal status of the debtor remains unchanged. As a result, the debtor retains the right to invoke any defences against the new creditor that would have been available against the original creditor. This principle extends equally to the right of set-off.

OGH 17 Ob 1/26k (6 July 2026)