37 Spring 2023 that once belonged to persecuted and suppressed minorities. The report also determined that regulations within civil law fail to provide satisfactory outcomes, because basic contracting principles such as freedom of contract, contract compliance and legal stability stand in the way of this path. These contracting principles are still regularly brought as a defense in cases dealing with ownership disputes. Upholding Contract Formation Principles Amidst Asymmetrical Power Dynamics How can one defend the freedom to contract and ensure contract compliance when the legal position of the parties upon signing the contract is totally asymmetrical? We are familiar with such considerations from consumer protection law. In cases like this, a consumer does not have any negotiating freedom vis-à-vis a company that dominates the market. As a result consumers are seen as members of an “at risk” group. The Exclusion of Principles of Civil Law and Definitions Used in the Restitution Laws The Allied regulations pertaining to the return of ascertainable assets between 1947 and 1949 can only be explained in the context of asymmetrical power dynamics between the parties. The notable regulations include: A. Law No. 59 of November 10, 1947 (Restitution of Identifiable Property) of the Military Government of Germany - American Control Area - (Official Gazette of the Military Government of Germany - American Control Area - Issue G of November 10, 1947 p. 1). B. Ordinance No. 120 of November 10, 1947 (Restitution of Looted Property) of the Military Government of Germany - French Control Area - (Official Gazette of the French High Command in Germany No. 119 of November 14, 1947 p. 1219). C. Law No. 59 of May 12, 1949 (Restitution of Identifiable Property to Victims of Nazi Oppression) of the Military Government of Germany - British Control Area - (Official Gazette of the Military Government of Germany - British Control Area - No. 28, p. 1169). D. Ordinance BK/O (49) 180 of July 26, 1949 (Restitution of Ascertainable Property to Victims of National Socialist Repressive Measures) of the Allied Kommandantura Berlin (Ordinance Gazette for Greater Berlin Part I 1949, p. 221).3 All regulations followed a general assumption: Transactions of the persecuted that took place between January 30, 1933, and May 6, 1945 were the result of persecution.4 It is from this basic assumption that the necessity of a reversal of the burden of proof and of proof of individual persecution for members of a persecuted group, such as the “Jewish race” as defined by the Nazis, arises. The term “act of seizure” in the meaning of these laws is also relevant for our discussion today, as – in addition to state measures in the narrowest sense – it also includes: (a) any transfer or relinquishment of property made during a period of persecution by any person who was directly exposed to persecutory measures on any of the grounds set forth in Article 1; (b) any transfer or relinquishment of property made by a person who belonged to a class of persons which the German government or the NSDAP intended on any of the grounds referred to in Article 1 to eliminate in its entirety from the cultural and economic life of Germany by measures taken by the State or the NSDAP.5 Preventing the Enforcement of the “Special Right” by Prejudiced Parties in Civil Cases One might assume that such clear rules would have led to numerous proceedings in which assets, including many works of art and culture, would be returned. This has not been the case. Legal experts from public offices responsible for resolving questions of compensation and the courts responsible for awarding and enforcing reparations attempted to introduce principles of civil law through the back door. This would allow them to reject claims of “violation of the obligation of good faith,” or “objection to the abusive exercise of rights.” In fact, the Higher Regional Courts, and the superior court responsible for reparations (ORG), regularly rejected such arguments for several years. They posited that the arguments were not convincing enough for many applicants, especially in view of the precarious situation in which many of the 3. Law No. 59 - American Control Area - of 11/10/1947 ABI. Edition G, p. 1 (USREG); Ordinance No. 120 of 10.11.1947, OJ of the French High Command in Germany No. 119 of 14.11.1947; Law No. 59 of the Military Government - British Control Area - OJ No. 28, p. 1169 (BrREG); BK/O (49) 180 of the Allied Command of 6/26/1949, VOBl. f. Gross-Berlin, I, p. 221 (REAO). 4. Art. 3 of the order BK/O (49) 180 of the allied command dated July 26, 1949, REAO. 5. Art. 3, Sec. 1, (a) and (b) of the order BK/O (49) 180 of the allied command dated July 26, 1949, REAO.
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