Private foundation deed or supplementary deed: which rules must be public

Section 9(1) of the Private Foundations Act lists the minimum content of the foundation declaration. It includes the dedication of assets, the foundation purpose, the designation of the beneficiary or the body that determines beneficiaries, the name and seat of the private foundation, the founder's details and a statement whether the foundation is established for a definite or indefinite period. These matters belong in the notarised foundation declaration.

Under section 9(2) PSG, the foundation declaration may contain further provisions. These include the appointment, removal, term of office and power of representation of the foundation board, further bodies, rules on amending the foundation declaration and a reservation of revocation. Rules on remuneration, a more detailed definition of beneficiaries and a minimum level of assets may also be addressed there.

For a practical review, it is not enough to read the first deed. The original foundation deed, effective amendments, the supplementary deed and the current commercial register must be considered together. Every later version has to be assessed by its form, authority, effectiveness and chronological order.

Section 10(1) PSG states that the foundation declaration must be notarised, consisting of the foundation deed and the supplementary foundation deed. A supplementary deed therefore presupposes that the foundation deed provides for it or allows it. It is not a free-standing internal paper and it cannot replace a required amendment of the foundation deed.

Under section 10(2) PSG, the supplementary deed may contain provisions going beyond the content of section 9(1) PSG. However, provisions under section 9(2) numbers 1 to 8 are excluded. This covers, among other things, rules on foundation bodies, the amendment of the foundation declaration, the statement that a supplementary deed exists and the reservation of revocation.

The contents of the supplementary deed are not submitted to the commercial register court. That does not make the deed legally irrelevant. It remains part of the foundation declaration and may be decisive for beneficiary status, distributions, the powers of a body within the permitted scope and the interpretation of the founder's intention. Confidentiality must not be confused with a lower degree of legal effect.

Private foundations must be entered in the commercial register under section 13 PSG. Section 13(3) PSG first applies section 3 of the Commercial Register Act and then lists additional information. This includes a short statement of the foundation purpose, the date of the foundation deed and every amendment to that deed.

If a supplementary foundation deed exists, section 13(3) number 3 PSG records its date and the date of an amendment. The register therefore shows that a supplementary deed exists and when it was created or amended. Its contents, however, are not submitted to the commercial register court under section 10(2) PSG.

The word public must therefore be understood carefully. Register data and the deed kept with the register are not the same as a complete publication of every internal detail. Before providing or requesting a document, the applicable legal basis, inspection rights and any protected interests should be considered in the specific situation.

An inconsistency often begins with different working versions. A draft, email or set of minutes may show what was intended, but it does not automatically replace an effective deed. All versions should therefore be recorded with their date, form, signatories and any relevant registration entry.

In decision 6 Ob 56/24i of 18 February 2025, the Austrian Supreme Court stated that the founder's intention is determined by interpreting the foundation declaration. Corporate provisions are interpreted objectively according to their wording and purpose in their systematic context. This can matter where the foundation deed, an amendment, a supplementary deed and further rules must be read together.

Interpretation must not be based on one sentence removed from its context. The foundation purpose, the competent body, the beneficiary rules, the sequence of deeds and the actual implementation all need to be considered. Until this is clarified, major distributions, decisions by bodies or register applications should not rely on an uncertain version.

A reliable assessment requires the current foundation deed, every amendment and the full supplementary deed. The current commercial register extract, earlier filings, notarial or court documents and relevant resolutions of the foundation bodies should be added to the file.

Where there is a concrete inconsistency, the decision and its preparation are also relevant. This may include a draft resolution, meeting notice, minutes, instructions, beneficiary determinations, distribution documents or a proposed register filing. The central question is always which rule should apply and which document supports it.

A good document list does not replace legal advice. It does prevent the assessment from beginning with an incomplete version. In older private foundations, supplementary deeds, amendments and register information are often kept in different places. They should be brought together before implementation.