Decision no. 552/2009

In 1938, the requested property in Vienna, Landstraße, on which a two-storey house, a courtyard wing and a car repair shop were located, was solely owned by Ida T. She had acquired the property in 1934 for 20,400 Schilling by means of a forced auctioning procedure.

After the Anschluss, Ida T. fled Vienna to her son Paul T. in Prague, while her second son Friedrich T. emigrated to England and then, in 1940, to the USA.

In 1939, the City of Vienna planned to acquire the property in order to construct a large housing estate on this and other neighboring properties. Only after Ida T. had been threatened with expropriation did she consent to the sale. A part of the purchase price was used to settle an outstanding mortgage of 21,000 Reichsmark and the remainder was transferred into a frozen account. Subsequently however, the planned housing did not materialize due to the war.

In July 1942, Ida T. was deported to Theresienstadt and in autumn 1942 she was murdered in the extermination camp Treblinka. In 1948, Paul T. emigrated from Prague to Australia.

In 1946, the sons of Ida T. claimed restitution for the first time, which resulted in protracted negotiations with the City of Vienna, as no agreement was able to be reached either with regard to the value of the property or the extent of the expenditure effected by the City of Vienna. In July 1949 a settlement was concluded before the Restitution Commission Vienna, according to which the brothers were to be restituted the property in exchange for a payment of 8,200 Schilling. However, due to their precarious financial situation resulting from their persecution and flight, the restitution claimants were not in a position to be able to pay the agreed amount, which consisted of the refund for the payment of the mortgage by the City of Vienna in 1942 and for expenditures. Subsequently, a second settlement was concluded in June 1950. In this settlement, the restitution claimants waived the restitution of the property in exchange for a payment of 29,000 Schilling.

The Arbitration Panel was to examine the settlement for the existence of an “extreme injustice” pursuant to the General Settlement Fund Law. It determined that the freedom of contract of the T. brothers was restricted in the conclusion of the settlement because the free choice between the actual restitution of the property and a mere reduced payment – as was in the end agreed – was not available to them due to their dire financial situation. In contrast to this, the free choice of the City of Vienna was not restricted. Additionally it was evident that the City of Vienna had, among other things, purposely maintained unjustified claims against the restitution claimants.

In the final analysis however, it could not be established that the City of Vienna had exploited this difference in free choice for its own benefit: On the basis of the calculations of the Arbitration Panel, taking into consideration the restitution legislation at the time, the restitution claimants would only have been entitled to an amount 1,300 Schillings in excess of the amount actually agreed in the settlement. Despite the established restricted freedom of contract, the outcome of the settlement was therefore not to be assessed as "extremely unjust". The application for restitution of the requested property was therefore to be rejected.