Asset Deals

Asset Deal

The Asset Deal is a form of business acquisition in which individual assets and associated components of a company are specifically transferred to a purchaser. Unlike a Share Deal, the acquirer does not purchase the company itself, but rather specific economic elements of the business. Legally, the Asset Deal takes place as so-called singular succession. This means that assets, contracts, and rights must generally be transferred individually. For this very reason, the precise drafting of the contract plays a central role. Many contracts require the consent of the respective contractual partner, such as lease, leasing, or license agreements. At the same time, statutory liabilities of the purchaser may arise, particularly under Section 38 UGB and Section 1409 ABGB. Employment law consequences, such as an automatic transfer of employment relationships under the AVRAG, are also possible if a business or partial business operation is acquired.

The purchase of individual components or assets of a company is referred to as an Asset Deal. The purchaser specifically acquires certain assets such as contracts, machinery, trademarks, or customer relationships, while the existing company remains legally intact.

Asset Deal in Austria explained simply. Liability, partial business operations, contracts, and risks in business acquisitions clearly presented.
Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte „The Asset Deal enables the targeted acquisition of economic assets with controllable liability risk.“
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Meaning and Function of the Asset Deal

In an Asset Deal, the purchaser does not acquire the company itself, but rather specific economic assets such as machinery, customer contracts, trademark rights, or business equipment. It offers above all economic flexibility. Purchasers can precisely determine which assets they wish to acquire and which risks should remain excluded. This structure plays an important role particularly in business successions, restructurings, or the acquisition of a partial business operation.

Typical advantages of an Asset Deal are:

The Asset Deal is particularly relevant in the transfer of a partial business operation. In this case, not just a single asset is transferred, but an economically functional unit.

Distinction from the Share Deal

The difference between an Asset Deal and a Share Deal lies in the subject matter of the transfer. In an Asset Deal, individual assets or business units are transferred. In a Share Deal, by contrast, the previous owner sells their company shares.

In a Share Deal, the purchaser typically also assumes existing liabilities and risks of the company. The Asset Deal, by contrast, allows a more targeted selection of the assets to be acquired. However, this often results in greater effort, as individual contracts frequently must be transferred separately.

The most important differences are:

Which structure is more appropriate depends primarily on the economic objective of the transaction.

Subject matter of an asset deal

The scope of an Asset Deal includes all assets, rights, and economic components that the contracting parties wish to transfer. Unlike the purchase of a company, there is no automatic transfer of the entire business. Each individual element must be legally reviewed and transferred.

Typical elements of an Asset Deal are:

The transfer of a partial operation is of particular importance

Transfer of a Partial Business Operation

The transfer of a partial business operation plays a particularly important role in an Asset Deal. A partial business operation exists when an organizationally separable business area can operate economically on an independent basis. Therefore, what is decisive is not the size, but the economic independence.

Typical examples include:

When acquiring a partial business operation, the purchaser often assumes not only assets, but also existing business processes, employees, and customer relationships. As a result, the business can usually be continued without major interruptions.

However, special liability issues arise particularly with partial business operations. For this reason, purchasers typically examine existing contracts, outstanding claims, and potential liabilities very carefully before acquisition.

Transfer of assets

At the center of an Asset Deal is the transfer of individual assets. This includes both tangible objects and economic rights.

Frequently transferred are:

Each asset must generally be transferred individually. Specific statutory requirements apply to certain assets. Real estate, for example, requires a separate contract and registration in the land register.

In practice, the parties usually prepare detailed lists of all assets to be transferred. This avoids later disputes over the scope of the acquisition.

Transfer of Contracts and Customer Relationships

Contracts and customer relationships often do not automatically transfer to the purchaser in an Asset Deal. Many agreements require the express consent of the respective contractual partner.

This particularly affects:

If this consent is lacking, the original contractual partner remains obligated. For purchasers, this creates the risk that important business relationships cannot be acquired.

Customer relationships also often possess considerable economic value. Particularly with established companies, the success of the Asset Deal often depends on whether customers continue to trust the new operator and maintain the business relationship.

Acquisition of Trademarks, Patents, and Domains

Intangible assets often play a central economic role in an Asset Deal. These include above all trademarks, patents, domains, software rights, or copyrights. Particularly with established companies, these assets often possess greater economic value than machinery or business equipment.

The transfer of such rights does not always occur automatically. Many intellectual property rights must be transferred or registered separately.

Typical intangible assets are:

Trademarks and domains in particular are important for a company’s public image. Errors in the transfer can result in the purchaser not being permitted to continue using certain names or online presences.

Contract Transfer in an Asset Deal

In an Asset Deal, contracts must usually be examined and transferred individually. Unlike in a Share Deal, the original company initially remains the contractual partner. A contract transfer often requires the consent of the other contractual partner within 3 months. Without this consent, the purchaser often cannot fully assume the contract.

Particularly relevant are:

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys „In practice, purchasers therefore examine at an early stage which contracts are economically indispensable. If the consent of important contractual partners is lacking, this can jeopardize the entire Asset Deal. “
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Special Features of Lease and Leasing Contracts

Lease and leasing contracts are among the most important problem areas of an Asset Deal. In many cases, these contracts do not automatically transfer to the purchaser.

Landlords or lessors in particular often wish to decide for themselves who will become the contractual partner in the future. For this reason, many contracts contain consent reservations.

Typical risks arise with:

If the necessary consent is lacking, the purchaser can lose important operational foundations. This becomes particularly problematic when production facilities or business premises are indispensable for ongoing operations.

Careful contract review is therefore one of the most important preparatory steps of an Asset Deal.

Transfer of Insurance and Supply Contracts

Insurance and supply contracts often possess great economic significance for ongoing business operations. In an Asset Deal, however, these contracts usually do not automatically transfer to the purchaser.

Many contracts contain provisions requiring the consent of the contractual partner. Without this consent, the original company remains the contractual partner.

Particularly relevant are:

Problems frequently arise when important suppliers refuse to cooperate with the new operator or wish to change existing terms. This can result in additional costs or supply bottlenecks.

Purchasers therefore typically examine before contract conclusion which contracts are indispensable for operations.

Risks in the Absence of Consent

If the consent of a contractual partner is lacking, a planned contract transfer may be ineffective. The purchaser then receives individual assets, but cannot continue certain contracts.

This creates considerable economic risks. This becomes particularly critical with contracts that are necessary for ongoing business operations.

Typical problem cases concern:

In some cases, the contractual partner even has a right of termination as soon as a business sale takes place. Purchasers must therefore examine at an early stage which consents are required and whether economic alternatives exist.

Careful due diligence significantly reduces the risk of later surprises.

Liability of the Acquiring Company

In an Asset Deal, the purchaser does not automatically assume all debts of the previous company. Nevertheless, the law provides for liability of the acquiring company in certain cases. Particularly relevant are statutory liability provisions regarding business transfers. These are intended to protect creditors and prevent liabilities from being lost through the transfer of a business.

Possible liability areas are:

Liability depends heavily on the scope of the acquisition and on the specific structure of the Asset Deal. Particularly when acquiring a partial business operation, courts frequently examine whether economically there is actually a continuation of the previous business.

Legal and economic review before contract conclusion is therefore particularly important.

Liability under Section 38 UGB

Section 38 UGB primarily governs the transfer of business-related legal relationships in an Asset Deal. If the purchaser acquires a business or partial business operation while continuing the previous activity, certain legal relationships belonging to the business generally transfer to the acquirer.

These include in particular:

Under certain conditions, the acquiring company is also liable under Section 38(4) UGB for existing business-related liabilities. However, contractual partners may object to the transfer of individual legal relationships.

Liability under Section 1409 ABGB

In addition to Section 38 UGB, Section 1409 ABGB can also trigger liability of the purchaser. The provision concerns the acquisition of assets or a business by legal transaction and protects creditors from losing existing access to the transferred assets.

Under certain conditions, the acquirer is also liable for existing debts of the transferor insofar as these are connected with the acquired assets or business. Decisive is whether the purchaser knew of the liabilities or should have known of them upon careful examination.

Typical problem areas are:

Liability is generally limited to the value of the acquired assets. A complete exclusion of liability to the detriment of creditors is not legally possible.

Liability of the Transferring Company

The transferring company often remains liable despite the Asset Deal. The sale of individual assets does not automatically result in existing obligations being extinguished.

Creditors can therefore often continue to assert their claims against the original company. This particularly concerns debts that arose before the business sale.

Important liability areas are:

For the transferring company, this creates the risk of remaining economically burdened despite the sale. For this reason, Asset Deal contracts frequently contain detailed provisions on the internal allocation of liability between seller and purchaser.

Liability under Section 38 UGB

The transferring company often remains obligated despite the Asset Deal. The sale of a business or partial business operation does not generally automatically terminate existing liabilities.

Creditors can therefore often continue to assert their claims against the previous company. This particularly concerns:

In practice, purchasers and sellers therefore frequently agree on internal liability and indemnification provisions. However, such agreements usually do not have direct effect vis-à-vis external creditors.

Liability under Section 1409 ABGB

The transferring company also often remains liable despite the Asset Deal. The sale of assets does not automatically result in existing debts or obligations being extinguished.

Section 1409 ABGB protects creditors particularly when the asset transfer makes access to existing assets more difficult. This provision is of great practical significance particularly with economically troubled companies.

Particularly problematic are:

In such cases, courts frequently examine very carefully whether creditors were economically disadvantaged by the asset transfer.

Liability in the Acquisition of a Partial Business Operation

Special liability issues often arise when acquiring a partial business operation. Decisive is whether the acquired area was economically organized independently and can be continued independently.

Statutory liability provisions can also apply when purchasing a partial business operation. Purchasers may thereby assume certain existing liabilities.

Typical risks concern:

The distinction is frequently difficult particularly with partial business operations. In practice, courts therefore examine very carefully whether an independent business unit was actually transferred.

Liability Agreements in an Asset Deal

In an Asset Deal, purchasers and sellers frequently agree on detailed provisions for the allocation of liability. This is intended to establish which liabilities the purchaser assumes and which risks remain with the seller.

Such agreements frequently concern:

Many liability provisions can generally be freely structured between the contracting parties. However, statutory limits apply vis-à-vis external creditors.

Under Section 38 UGB, certain liability exclusions vis-à-vis third parties can generally only become effective if the statutory publicity requirements are met, such as through registration in the company register or through appropriate publication.

Section 1409 ABGB also protects creditors in business transfers. A contractual agreement between purchaser and seller cannot generally exclude this statutory liability to the detriment of creditors.

Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte „Precise contract drafting is therefore crucial to allocate economic risks in an Asset Deal as clearly as possible.“
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Social Insurance Liabilities

In an Asset Deal, social insurance liabilities can also transfer to the purchaser. This becomes particularly relevant when employees are taken over or a partial business operation is continued.

Outstanding social insurance contributions can under certain conditions lead to liability of the acquirer. Purchasers therefore regularly examine whether all contributions have been properly paid.

Important risk areas are:

The takeover of employees is of particular significance. If existing employment relationships are continued, additional statutory obligations frequently arise.

Careful review of personnel records significantly reduces subsequent liability risks.

Tax Liability Risks

Tax liabilities are among the most important risk areas of an Asset Deal. Under certain conditions, the purchaser can be liable for outstanding tax debts of the business.

This particularly concerns taxes connected with the acquired business. Unknown tax liabilities or ongoing audit procedures are particularly problematic.

Typical risks concern:

Purchasers therefore frequently conduct extensive tax reviews. Accounting records, tax returns, and existing proceedings are carefully analyzed.

A clear contractual provision on the allocation of liability is of great practical significance in an Asset Deal.

Your Benefits with Legal Assistance

An Asset Deal often appears simpler at first glance than a traditional business acquisition through company shares. In practice, however, considerable risks quickly arise. Even small errors in the transfer of contracts, trademark rights, employment relationships, or operating permits can later cause high costs. Hidden liabilities under Section 1409 ABGB, outstanding tax claims, or contractual relationships not effectively transferred are particularly problematic.

Legal representation ensures that the business acquisition is structured in a legally sound manner and that economic risks are identified at an early stage. Particularly with partial business operations, business transfers, or complex contractual structures, precise structuring is crucial.

Your specific advantages:

Attorney Sebastian Riedlmair Sebastian Riedlmair
Harlander & Partner Attorneys „Through early legal review, many subsequent conflicts can be avoided and transactions can be implemented significantly more securely and efficiently.“
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