Whether the prohibition on set-off under § 63 para. 3 GmbHG applies—particularly in connection with the payment of share capital contributions—depends on the timing of the set-off declaration.
However, a set-off objection made during legal proceedings is considered a conditional declaration that becomes effective only if the court ultimately confirms the existence of the principal claim. If this condition is met and the set-off becomes effective, the principal claim being offset is then considered undisputed.
OGH 26.04.2024, 6 Ob 136/23b
