Third-party debtor gives no statement: costs and lawsuit under section 301 of the Enforcement Code

If a third-party debtor gives no statement after service of the payment prohibition, the creditor must document the response and the next steps carefully. Section 301 of the Austrian Enforcement Code links the duty to provide a statement with possible cost consequences and liability for damage caused.

The statement concerns the attached claim. The third-party debtor must state, among other points, whether the claim is acknowledged, whether payment will be made, and whether other persons or pledges stand in the way. The creditor may also need to consider a third-party debtor action under section 308 of the Enforcement Code.

This article explains which facts matter, when recovery of costs can be considered and how a lawsuit against the third-party debtor can be prepared in a structured way.

What section 301 requires the third-party debtor to state

Unless the creditor has requested otherwise and service of the payment prohibition under section 294(2) is not the administrator’s responsibility, the court must order the third-party debtor to provide a statement together with the payment prohibition. The period is four weeks.

The third-party debtor must state whether and to what extent the attached claim is acknowledged and payment will be made. The statement also covers conditions for payment, claims by other persons and pledges over the claim. In certain proceedings, disclosed maintenance obligations and an administrator’s calculation of the protected amount may also matter.

The statement is sent to the enforcement court. If an administrator has been appointed, the administrator receives a copy. Without an administrator, the copy goes to the creditor. Silence therefore leaves information that the statute specifically requires open.

When section 301 can support recovery of costs

Section 301(3) of the Enforcement Code links the cost consequence to a culpable breach of duty. It covers a failure to perform the duties at all and a statement that is intentionally or gross negligently incorrect or incomplete. A factual uncertainty alone does not establish this requirement.

If the statutory conditions are met, the third-party debtor can be ordered to pay the costs of the proceedings even if the creditor prevails in the third-party debtor action. Section 43(2) of the Code of Civil Procedure applies by analogy. The record must show the duty, the breach and the degree of fault that can be proven.

Recovery of costs must be separated from actual payment. A cost claim does not automatically produce a payment. The economic assessment therefore also requires information about assets and the expected effort of enforcement.

How to document the breach and resulting damage

Section 301(3) also provides liability for damage caused by the culpable failure to comply or by an intentionally or gross negligently incorrect or incomplete statement. The damage must be connected to the third-party debtor’s conduct.

The review therefore needs several dates: service of the payment prohibition, the order to provide the statement, expiry of the four-week period, maturity of the attached claim, possible payments and the point at which the economic position worsened. A general assertion that money was lost does not explain this connection.

A chronological evidence file is useful. It can contain the order, service records, the attached claim, correspondence, payment records, information from the debtor and the calculation of the alleged damage. If the statement was incorrect, the specific incorrect or incomplete detail must also be identified.

Preparing a third-party debtor action under section 308

Section 301 governs the statement duty and the consequences of a culpable breach. The action for payment of the attached claim follows the wider enforcement framework, in particular section 308. A creditor to whom the attached claim has been transferred for collection may demand payment up to the amount being recovered and sue if payment is not made.

Before filing, it must be clear which claim was attached, whether it belongs to the debtor, whether it is due and whether it has been transferred for collection. The claim against the third-party debtor must be kept separate from the original claim against the debtor.

The lawsuit preparation should therefore present the enforcement title, payment prohibition, order to provide the statement, transfer for collection, maturity and non-payment as separate steps. The breach under section 301 and the resulting costs or damage each require their own evidence.

Distinguishing employers, banks and customers

For recurring employment income, attachable and protected amounts, maintenance obligations and changes in employment may matter. A bank claim can be affected by changing balances, incoming payments and existing rights. For a claim against a customer, the contractual relationship must show that a due payment to the debtor is actually outstanding.

These differences affect the content of the statement and the preparation of a third-party debtor action. A missing statement does not answer whether the attached claim exists. A statement mentioning a payment duty also does not prove that money was actually received.

For recurring claims, section 301(4) contains a separate notification duty when the underlying legal relationship ends. The third-party debtor must inform the creditor within the period stated there. This special rule should be reviewed separately from the first statement order.

Which documents the creditor should organise now

Start with the enforcement file. Mark the title, payment and disposal prohibition, the order under section 301, service records and any transfer of the claim for collection. Add the exact identity of the third-party debtor and the attached claim.

Then prepare the payment overview. It should show maturity, amount, partial payments, conditions, objections and the alleged balance. A damages claim also needs the sequence of events, the concrete effect and the supporting calculation.

The topic page on enforcement after a title sets out the wider enforcement framework. The article on preparing third-party debtor enforcement addresses the choice of target. A separate article covers an unclear statement after garnishment. The contribution on enforcement costs and court advances deals with the cost side of the application.

How the firm reviews the next step

BRANDAUER Attorneys first organise the title, payment prohibition, service and attached claim. The firm then reviews whether the order to provide a third-party debtor statement was properly issued and what response exists within the four-week period.

For collection, the existence, maturity, transfer for collection and non-payment are assessed separately. Costs and damages under section 301 require a separate review of the breach and the degree of fault.

The documents show whether a factual demand, a third-party debtor action under section 308 or another step is sensible. Contact the firm with a clear chronology and the key court documents.

Frequently asked questions about a missing statement