Waiving the founder amendment right: binding effect and later correction routes

Section 9(2) number 6 PSG permits provisions on amending the foundation declaration. The declaration therefore does more than establish the original purpose and organisation. It can also determine whether the founder may amend the foundation later and how far that power extends.

If that right is completely given up and the waiver is effectively completed, the founder cannot simply implement a later change of mind in a new amendment deed. The waiver becomes part of the applicable deed position. The text must show whether it is complete, partial or limited to particular provisions.

A waiver does not automatically eliminate every possibility of adapting the private foundation. It does remove the founder's primary amendment route to the extent that the waiver is valid and reaches that far. The foundation can therefore still develop legally, but the remaining routes are narrower.

Section 10(1) PSG requires the foundation declaration to be notarised. A waiver therefore cannot be treated as complete merely because it appears in an internal record, email or unfinished working version. It must be placed in the legally required deed process.

For an amendment to the foundation deed, section 33(3) PSG requires the foundation board to file the amendment with the commercial register together with a publicly certified copy of the amendment resolution. The amendment becomes effective upon entry. Until then, the earlier version remains decisive.

The supplementary foundation deed also cannot automatically be used as a place for an amendment right or its waiver. Section 10(2) PSG excludes provisions under section 9(2) numbers 1 to 8 PSG from the permitted content of the supplementary deed. The location of the rule therefore contributes to its legal classification.

The first route is not a new design but a careful interpretation of the applicable foundation declaration. If the wording still contains a partial power or the extent of the waiver is unclear, the complete deed history must be read. A supposed total waiver must not be inferred from one shortened phrase.

The second route concerns a power that remains effective. A waiver of amendments to the beneficiary class does not necessarily remove a separately reserved power to amend the appointment of governing bodies. The deed must be checked to see whether the powers are separate and whether the waiver covers that particular area.

The third route is available to the foundation board where an amendment is not possible because amendments were not reserved. Section 33(2) PSG permits an adjustment to changed circumstances while preserving the foundation purpose. The amendment requires court approval. Convenience or a general wish for a more practical rule is not enough.

Dissolution under sections 35 and 36 PSG is not a substitute for a desired correction of the foundation declaration. It requires a statutory or deed-based ground for dissolution. The article Dissolving an Austrian private foundation explains the dissolution and winding-up process.

Founder rights are tied to the founder under section 3 PSG. Section 3(3) PSG provides that the founder's rights of design do not pass to legal successors. Children, heirs or other family members therefore cannot reopen a waived amendment route merely because they would organise the foundation differently later.

Where there are several founders, joint exercise requires particular care. A waiver by one person may leave other rights untouched, but it may also block a decision that requires joint action. The foundation declaration must show whether separate subject areas, joint declarations or special majority rules apply.

The article Founder rights in a private foundation addresses the exercise of reserved rights. After a waiver, the opposite question matters: which power remains and who can exercise it?

The review should include the current foundation deed, every amendment deed, the supplementary deed, the commercial register extract and the resolutions. Where a waiver is alleged, add drafts, notarial documents, filings, register decisions and communications concerning the scope of the declaration.

A common mistake is to treat a signed draft as an effective deed. It is equally risky to assume that a total waiver automatically covers every amendment power. Another error is to confuse the board amendment under section 33(2) PSG with a general substitute power for the founder.

The file should therefore separate three levels: what was originally reserved, what was actually declared later and what amendment is now desired. Only then can it be decided whether interpretation, a residual power or the court route can help.