Voluntary Oaths: Austrian OGH Clarifies Creditor’s Standing as a Party

Jun 6, 2025 Benn-Ibler Rechtsanwälte

In principle, a debtor with a valid obligation must be willing to fulfil their obligation in order to avoid the creditor initiating enforcement proceedings.

Voluntary oath requested by debtor

In a compulsory inheritance portion lawsuit, the applicant was ordered by a final partial judgement to provide her opponent in the proceedings with ‘comprehensive information on the date, subject matter, and value of all gifts and donations made by the deceased of which she is aware, particularly those made to herself, and to confirm under oath the accuracy and completeness of this information’.

In June 2024, the applicant filed a petition with the non-contentious court for a voluntary oath.

The court rejected the opposing party’s request to participate in the scheduled hearing, which was intended to allow the parties to ask questions and ensure they were heard. The court ruled that the creditor had no standing in the voluntary oath proceedings. The court then held a hearing with the applicant, which the opposing party was not summoned to.

The court of appeals dismissed the appellant’s appeal against the rejection of the application.

OGH confirms: No creditor party status

The creditor’s participation in the performance of the oath is neither necessary nor of interest worthy of protection. The creditor therefore has no party status in the proceedings for voluntary oath-taking by the debtor. If creditors consider the oath to be (formally) not in accordance with the judgment, they are free to pursue execution to the extent of the non-performance of the service to be rendered in accordance with the judgment.

As a result, the extraordinary appeal on points of law was not justified. The lower courts correctly denied the appellant's status as a party.

OGH 2 Ob 222/24x (25 March 025)