The previous tenant of your Austrian commercial premises announces a successor. You want to first negotiate a new lease and a different rent. However, the contract file contains a right of assignment. Before you make the succession dependent on a new signature, it must be clarified which consent was already declared in the old contract.
Have the entire succession clause read
A contractual right of assignment can contain the consent declared in advance to a later takeover of the contract. A right of presentation has a different effect: it does not already open the same immediate entry of a third party into the previous contract. The OGH works out this distinction in 7 Ob 141/25y. A right of assignment limited to certain grounds for refusal does not, by virtue of this restriction alone, become a right of presentation. [OGH]
The heading of the clause does not decide the question by itself. § 914 ABGB requires an interpretation according to the intention of the parties and fair dealing. In the decision, other contractual provisions were considered in addition to the specific wording. [AUSLEGUNG, OGH] Therefore present the contract, amendments and related reservations of consent. A copied-out sentence can obscure the context.
Arrange four items for the concrete review
Our editorial working method: record separately who the previous contracting party is, who is to enter completely, at what time this is to happen and which declaration was actually transmitted. In addition, note the exact contractual scope for refusal.
In the decided case the clause contained a prior written notification and a limited right of refusal on grounds of creditworthiness and reputation. [OGH] Those are characteristics of that contract. Do not adopt them as a legal standard rule for every commercial lease. Nor does the dispute at that time create a generally binding list of personal documents to be submitted.
Do not make the new signature a precondition without checking
When a right of assignment has been validly exercised, the new party can enter into the existing contract without a completely new lease having to be concluded first. [OGH] A new contractual offer with changed rent is therefore not automatically the appropriate first step. First obtain an expert assessment whether the asserted succession can already be based on the existing agreement.
In the hypothetical case a letting owner wants to demand a new contractual deed after a small workshop names its successor. His advisor recognises a possible prior consent in the old file. The actual time of notification, the takeover agreement and the expressly reserved objections are then examined. The owner does not confuse his desired renegotiation with the still open effect of the old contract.
A possible objection needs its actual basis
The OGH did not finally confirm in the decision that the succession was effective. The matter was referred back because the factual prerequisites for the exercise and possible grounds for refusal remained to be clarified. [OGH] A legal classification as a right of assignment does not resolve these factual questions by itself.
Therefore distinguish which information is missing, which concrete contractual prerequisite is disputed and on what an objection is to be based. Also have the timeliness of the response assessed; this article does not state a blanket deadline for objection. Do not postpone an urgent expert review until the next regular billing cycle.
Then implement the reviewed contractual status
The result names the legal basis, the established sequence of declarations and any outstanding objections. Only then are contact persons, payment allocation and further contract administration aligned. A mere name change in the rent account does not answer the change of party.
This article deals with a contractual commercial lease case. Statutory assignment of an apartment, sale of a business and a merely temporary subletting each require their own application review.