Kostoris v Meinl

Date28 Gennaio 1949
Docket NumberCase No. 171
CourtCourt of Appeal of Trieste (Italy)
Italy, Court of First Instance of Trieste.
Court of Appeal of Trieste.
Case No. 171

War — Rules of — In General — Hague Conventions — How far Declaratory of Customary Law — Requisition.

Belligerent Occupation — Legislative and Administrative Powers of Occupant — Respect for Private Property — Requisitions — Confiscatory Legislation — Purported Title Acquired from Belligerent Occupant — Validity of — Hague Convention No. IV — Parts of Italy Occupied by Germany After the Declaration of War by Italy against Germany in 1943.

The Facts:—The appellant was the owner of a business in Trieste. In the course of their persecution of Jews, the German authorities occupying Trieste seized the property belonging to the plaintiff.1 They sold the furniture and equipment to the defendant for the price of three thousand lire, which was only a fraction of their real value. At the end of hostilities the property of the plaintiff could no longer be traced; it had either been destroyed or used in the manufacture of other goods. The plaintiff claimed the return of the goods on the ground that the defendant had failed to acquire title in the goods. In support of this contention he referred to Article 1418 of the Italian Civil Code, which declares illegal transactions to be void, and alleged that the seizure of his property was an illegal act of spoliation committed by the German police authorities. Alternatively, he claimed damages in virtue of Article 2043 of the Italian Civil Code, which provides that any person who wilfully or negligently and without justification causes damage to another is liable to make good this damage.

The Court of first instance of Trieste gave judgment in favour of the defendant. The Court said :

“In previous recent judgments dealing with similar cases, this Court has held that failure on the part of enemy forces

occupying the territory of another State to observe the rules of international law may give rise to responsibility in the international sphere. This concerns legal claims between the invaded and the invading State. However, in the absence of apposite rules of municipal law, such a violation cannot be examined by the ordinary courts with a view to determining its legality. It cannot form the basis of an action by private individuals either against the invading State or against persons deriving title from the former, including those who have benefited from the failure of the invading forces to observe the rules of international law. The result is different if the act complained of constitutes a specific tort committed by one or several individuals, who may be unknown. These conclusions are supported by Article i of Ordinance G. No. 266...

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