Grundfragen und Einzelprobleme der Haftung (German Edition)

However, it is questionable whether the ownership of the paintings was transferred to the German Reich by subsequent confiscation. Only the latter could have led to a loss of ownership. Furthermore, Section 2 para. Hoffmann, Internationales Privatrecht, 8th ed. Freiheit durch Deliktsrecht lates: It is therefore more convincing to interpret the Law on Confiscation in way that it requires an immediate expropriation of the paintings by law.

The question on the change of ownership is therefore determined by the legality of the Law on Confiscation. GG and repealing by the laws of the Allied did not have any direct influence on the assessment of the ownership. The question is only be determined by the fact if the Law on Confiscation was established 2. Neubert, Das neue deutsche Reichsrecht, , EinziehG, para. Mayer, Deutsches Verwaltungsrecht, vol. Laband, Deutsches Reichsstaatsrecht, , p. Sachs, Verwaltungsverfahrensgesetz, 7th ed.

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The legal effect of the Law on Confiscation is therefore to be examined on according to the law at that time. The power to legislate the Law on Confiscation therefore derived from the Enabling Act. This raises the question on the legal effectiveness of the Enabling Act itself. Although this has been heavily doubted12 taking into consideration to circumstances of its coming into being and the fact that it set aside the principle of democracy and the division of powers, German courts have not regarded the Enabling Act as being void ex tunc in the interest of legal 10 Regarding the relevance of the law at the time of enacting the piece of legislation, cf.

All of the 81 members of the Parmliament from the Communist Party were hindered in voting; they lost their seats on the basis of the Reichtag Fire Decree. The rules of procedure were amended to achieve the quorum by treating all members absent without justification as being present. The procedure carried by the Reichsrat did not met the requirements set out by the Constitution, either.

For more details, cf. Reifner ZRP , Freiheit durch Deliktsrecht certainty in the course of the confrontation with the NS injustice. The courts only assessed the legality of the laws which were enacted on the basis of the Enabling Act on a case-by-case basis. Hence, the Law on Confiscation is not void for reasons of conflicting with the powers of legislation set out in the Constitution. This was not in conflict with Art. This principle was not of the same significance as it has been assigned by the German Federal Constitutional Court16 in its case-law. Schmidt-Jortzig, Recht und Rechtslehre im Nationalsozialismus, , p.

These acts were repealed by the so-called Reichsstatthaltergesetz enacted in RGBl. However, the latter did not repeal the legislative powers but implemented stricter rules for the control through the Reich. August , 14th ed. The requirements of the benefit of the public were given according to purposes and the objectives of the national-socialist culture politics which is to be regarded inacceptable from the present point of view.

Isensee, Handbuch des Staatsrechts der Bundesrepublik Deutschlands, vol. Stolleis, Gemeinwohlformeln im nationalsozialistischen Recht, ; H. Bull, Die Staatsaufgaben nach dem Grundgesetz, , p. Poetzsch-Heffter, Handkommentar der Reichsverfassung vom August , 3rd ed. Freiheit durch Deliktsrecht its elimination from everyday life as such a legitimate prevailing interest It can therefore be concluded that the Law on Confiscation did not infringe any provisions of the Constitution according to the legal approach at that time.

Even if the German Courts regard the Enabling Act legally effective, they recognize that the laws based on the Enabling Act — such as the Law on Confiscation — can be legally ineffective because of infringing suprapositive law. Stern, Das Staatsrecht der Bundesrepublik Deutschland, vol. The principle of a relative positive law as developed by C.

Schmitt has been repealed cf. Schmitt, Verfassungslehre, , p. Radbruch, Rechtsphilosophie, 4th ed. The German Federal Court of Justice also referred to the case-law based on the principle developed by Radbruch and declared the grounds for justification set out in Section 27 of the Law on the Border GDR ineffective. It argued that such a ground for justification, which allows the prohibition of passing the border prevailing the human right to live, obviously and intolerably conflicts with the fundamental principle of justice and with human rights protected under international law was ineffective.

Although this concept referred to the whole field of modern art, it was targeted to the works of Jewish artists.

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This indicated similarities to the aforementioned judgments of the German Federal Constitutional Court. I share the opinion of others that even the principle of egality can be assessed by the judge … The question to be raised is: Freiheit durch Deliktsrecht of Jewish people was aimed at physically and substantially destroying parts of the people according to racist criteria. This was not in line with law and justice and conflicting with the ban on arbitrary decisions. The confiscation finally cut the linkage between the originator and work based on the general rights of personality.

The confiscation hindered them from exerting the rights of personality as their copyrights, especially their rights to access their piece of art. It was, therefore, part of the suprapositive human rights at that time. Schricker, Urheberrecht- Kommentar, 2nd ed. This alone is enough to argue that the Law on Confiscation is void — disregarding the material value of the relevant pieces of art. It included — among others — the right to equal treatment Art.

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Although the covenant did not bind the Third Reich, the Federal Republic of Germany is obliged to give effect to these rights. Germany also recognized suprapositive, unwritten human rights prevailing the German legal order through signing and ratifying Art. If one legally accepted the expropriations intended by the Law on Confiscation, this would have led to disregarding fundamental human rights,34 and the judge would have rule injustice rather than justice.

A state which acts without having a legal basis for its actions and which later legalizes these acts infringes the fundamental principle of the rule-oflaw. Freiheit durch Deliktsrecht Nullity of the Administrative Acts of Expropriation In so far as pictures were expropriated by virtue of an individual official act of confiscation it depends on how important the fact that it does not rest on any legal basis is for the validity of such an administrative act.

This would furthermore require the mistake to be of a particularly grave nature as is e. This latter condition was not yet applicable during the times of the Weimar Republic. The principle developed by Radbruch would be ineffective if the nullity of an unjust law did not carry consequences for the administrative act which implements injustice. A mistake in an administrative act is evident if it is apparent upon prudent and reasonable appraisal of the circumstances.

However, this evidentiary condition sets a very high threshold, so much so that even the administrative legal practice at that time did not impose any further conditions for the an administrative act to be rendered void. Mayer, Deutsches Verwaltungsrecht, p. Sachs, VerwaltungsverfahrungsG Kommentar, 6th ed. Peine, Allgemeines Verwaltungsrecht, 10th ed. Even for a prudent and reasonable contemporary the unlawfulness had to be blatantly obvious. Academic opinion on the matter agrees on the fact that the Law on Confiscation was also adopted due to the sentiment after the seizing acts had been implemented without a sufficient legal basis.

Furthermore, it had to be apparent to everyone that the confiscation also entailed the expropriation of museums and private lenders without receiving any compensation as well as the complete and final obliteration of artists in the public sphere. The prudent and attentive citizen would have recognised the futility of any form of resistance as well as the utter lack of any effective legal remedy. As a consequence, both the Law on Confiscation and any administrative acts of confiscation based on that law were void and therefore legally ineffective.

Loss of Ownership Through Subsequent Purchases Thus, the loss of ownership of pictures of degenerate art can only follow from subsequent derivative-translative purchases or by way of primary purchase. Public Purchase of Degenerate Art Given the fact that the state was involved in the transfer of these pictures to a third party by the German Reich and that the seizure represented a state measure it is firstly to be determined whether the purchasing regulations of private law are applicable or whether this is in fact a purchase governed by a set of public law regulations.

A parallel could be drawn to the law of foreclosure. According to the prevailing opinion44 the public auctioning of the distrained object and the C. Stein, Grundfragen der Zwangsvollstreckung, ; H. Putzo Zivilprozess- Freiheit durch Deliktsrecht surcharge awarded to the highest bidder constitutes an official state act which, regardless of whether the object has been lost or of bad faith, transfers onto the purchaser ownership of the object in question.

However, this public law theory on the security right of an execution order and the fact that it disregarded the private law principle of the acquisition of property in good faith have faced substantial criticism. According to the case law of the German Federal Court of Justice enforcement measures — such as seizure under private law — are void and without any legal consequences if they exhibit fundamental and grave deficiencies. Just as seizure without any legal judgment does not let a security right of an execution order emerge as a basis for any further legally valid exploitation by the state, in the same vein, nor does seizure, it being void any without any legal basis, constitute a basis for further exploitation, following public law regulations, by the German Reich.

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Walker, Zwangsvollstreckungsrecht, 10th ed. A void seizure does not render a confiscation; security right of an execution order requires an effective seizure; cf. The creation of this right is determined by the German Code of Civil Procedure. An effective seizure under private law requires a judgment or any equivalent. The nullity of the act of seizure results from the nullity of the Act of Confiscation as this expressively refers to measures taken before it came into force.

This means that not only the Act of Confiscation itself will be void, but also the measures taken before. This is based on the following reasons: The legitimacy of the measure is firstly based on the Enabling Act which allowed the Government of the Reich to create new legal bases without following any rules of a parliamentary legislative procedure.

The Enabling Act should have effect for only four years but it has been extended several times. Regarding acts of seizure in , it therefore contained the relevant legal basis for the following order of the minister of propaganda Goebbels: I ask for supporting Professor Ziegler during the process of viewing and selection the pieces of art.

An examination of the effectiveness of the relevant administrative act on the basis of the Enabling Act is required on a case-by-case basis. Freiheit durch Deliktsrecht gal effects without requiring further formalities. Nevertheless, it had been regarded effective following the legal approaches at that time.

The same applies considering the question of legislative powers of the Reich in the field of culture. The same applies to the private owners. Although the right to possess affected by the seizure is covered by the principle of ownership54; Art. At the time the order of seizure was enacted, the principle of ownership was already set aside by the Reichstag Fire Decree.

Therefore, the questions is to be addressed if the relevant provision is ineffective according to suprapositive law. Grell, Entartete Kunst, p. Poetzsch-Heffter, Handkommentar der Reichsverfassung, p. This is because the Law of Confiscation further develops the injustice rendering from the acts of seizure.

Furthermore, it was already very obvious at the time of the seizing acts that the painting would never be given back to their owners and the artists. Regarding the question if this was obvious — as required by the majority of legal scholars — reference is made to the explanations on the acts of confiscation. The confiscation constituted a prey intended and organized by the state according the legal approaches and that time and today and were regarded inapplicable.

The purchase of the painting by the German Reich under public law was not based on a legal provision. Selling the paintings, the Reich acted as a private person according to private law. The purchasing of the painting is thus to be examined on the basis of Sections et seq. The requirements of an acquisition of ownership from the person entitled were not met since the German Reich did not own the paintings.



Zuschlag, Entartete Kunst, , p. He could do so. Freiheit durch Deliktsrecht alienor. The acquirer can generally invoke this fact. The view of the court can be supported to the extent that actions of the state can create good faith which lessens the obligation to investigate. However, this can only apply in a state governed by the rule-of-law.

Recht und Rechtslehre im Nationalsozialismus, p.

With the assumption of ownership, the German Reich also claimed to be entitled to own the painting. HGB can be examined. As stipulated by this provision, ownership can be acquired from a person on entitled if the alienor is a merchant and the acquirer knows from the lack of ownership but assumes that the alienor is entitled. However, consequently, there was not only a lack of good faith regarding the ownership but also a lack of good faith regarding the entitlement of the German Reich.

Both can only render from an effective confiscation which was not the case. According to well-settled case-law it can be argued that the exercise of rights is against the principle of good faith if the debtor possessor hindered the creditor from refusing performance or from suspending expiry D. Bassenge, BGB, 73th ed. Freiheit durch Deliktsrecht of the claim. Furthermore, it conflicts with the obligation of the legislator to enact a law of expropriation without compensation which infringes the principle of ownership according to Art.

The court followed this opinion: Allowing a party, who admits not to have acted in good faith, to invoke the expiry of a claim while the plaintiff did not know about the location of the painting and did not have a chance to restitute the painting infringes the principle of ordre public. Denying this claim economically constitutes an expropriation. Invoking the effects of limitation is prohibited in the event of hiding the possession of paintings despite of knowing the unlawful acts taken by the National Socialist State.

VermG, et seq. Freiheit durch Deliktsrecht Bitte geben Sie hier Ihren Zugangscode ein. Sie haben noch kein Nutzerkonto? Bitte beachten Sie, dass die Registrierung keinen automatischen Zugriff auf die Volltexte der eLibrary nach sich zieht. I would not notice like a disadvantage, because repetition is key to learning. I did so think several of the principles explained within the book are typical sense, but I found that could be simple for someone to react quickly to conflicts.

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