Decision no. 751/2011

In 1938, the two requested properties were owned by the Jewish businessman Rudolf L. Residential and commercial buildings were situated on both of these properties. After the Anschluss, Rudolf L.’s company was put under National Socialist administration. In order to be able to pay the Jewish capital levy and the Reich Flight Tax, in 1939 he sold the property to Richard and Erich F. for 195,000 Reichsmark. After Rudolf L. and his wife Elsa L. had fled to London in August 1939, in November 1939 the lawyer Alois B., as Rudolf L.’s representative, sold the second property to Josef W. and Felizitas P. for 125,000 Reichsmark.

Rudolf L. died in the USA in 1946. In June 1949 his widow Elsa L. filed a claim with the Restitution Commission Vienna for the restitution of both properties. The buildings situated on them had been demolished in 1946 due to bomb damage. In 1950, during the redesign of the Schwedenplatz, the City of Vienna resolved to re-designate the areas in question as a traffic thoroughfare. In rem restitution was therefore precluded as the properties were to be transferred into public ownership. Subsequently, the restitution proceedings concerned the amount of compensation to be paid by the City of Vienna. The final amount was only determined in 1953 and 1954 after court proceedings lasting several years.

Already in 1951, Elsa L. had undertaken to pay Richard and Erich F. a sum of 215,000 Schilling from the compensation received for the properties they had “aryanized”. Therefore, around 125,000 Schilling remained from the 342,495 Schilling compensation which was determined in January 1953.

In 1954, the restitution proceedings conducted by Elsa L. against Josef W. and Felizitas P. were also concluded with a settlement. In this settlement, Elsa L. undertook to pay the adverse parties to the restitution an amount of 65,000 Schilling from the 264,740 Schilling she had received as compensation for the property. Elsa L. also assumed financial obligations of the adverse parties of around 44,000 Schilling separately from the settlement.

The grandchildren of Rudolf and Elsa L. now asserted that the two settlements had been extremely unjust. The Restitution Commission would not have ruled that the proceeds from the sale were to be returned as Rudolf L. had not received them for his free disposal. Furthermore, in addition to the poor financial situation of Elsa L., the delaying tactics of the City of Vienna had contributed to the conclusion of settlements which were unfavourable for
the restitution claimant.

In its juridical appraisal, the Arbitration Panel examined the circumstances surrounding the conclusion of the two settlements and reached the conclusion that the settlements by agreement had not been extremely unjust pursuant to the Entschädigungsfondsgesetz (“General Settlement Fund Law”).

Elsa L.’s lawyer had rendered the free disposal of the entire proceeds from the sale and therefore Elsa L.’s obligation to reimburse them non-contentious. Although her legal representative could have conducted the case more prudently, which would possibly have led to a different outcome for Elsa L., omissions on the part of her representative are ultimately to be apportioned to her.

In the proceedings against Josef W. and Felizitas P., both parties declined to resolve the issue of the payment of the purchase price before the Restitution Commission by an interrogation of the lawyer Alois B. in court. In view of the fact that the risk of losing the trial was equal for both parties, the settlement, which stipulated the repayment of one half of the purchase price, seemed plausible to the Arbitration Panel. The fact that Elsa L. paid the adverse parties to the restitution a further 44,000 Schilling separately from the settlement can also be attributed to a negligence on the part of her lawyer.