Maltoni v Companini

• Jurisdiction: Italia
• Date: 04 Maggio 1947
• Docket Number: Case No. 210
• Court: Court of Appeal of Bologna (Italy)

Italy, Court of Appeal of Bologna.

Case No. 210

Maltoni

and

Companini.

Belligerent Occupation — Requisitions — Conditions of — Requirement of Indemnity — Hague Convention IV — Parts of Italy Occupied by Germany after the Declaration of War by Italy against Germany in 1943.

The Facts.—During the occupation of Northern Italy by German troops, after the outbreak of hostilities between Italy and Germany, the German authorities requisitioned two cows belonging to the appellant against a document promising payment in the future. Subsequently the German authorities requisitioned two cows belonging to the respondent and gave him as compensation the two cows previously requisitioned from the appellant. The appellant claimed the return of his cows on the ground that both acts of requisitioning were illegal. The Court of first instance dismissed the action. Upon appeal by the plaintiff,

Held: that the appeal must succeed on the ground that the cows had been seized unlawfully. The Court of Appeal said:

“The fundamental question is this: Was the seizure an act of requisitioning or a raid? In the first case, title to the cows passed lawfully from the expropriated owner to the expropriating authority and through them to the subject of the second act of requisitioning. In the second case, an act of spoliation has occurred. Therefore the acquisition of and the transfer of ownership in the cows on the part of the German authorities was illegal. Consequently the respondent could not acquire ownership in the cows, not even as bona-fide possessor, for both good faith and a sufficient title to transfer ownership were absent.

“This question was not examined in detail. The court below held that the possibility of a raid could be ruled out on the ground that a raid is to be defined as spoliation without indemnity. Instead it held that in effect an indemnity had been given, seeing that the appellant had received a document promising payment at a future date while the respondent received the two cows formerly belonging to the appellant. The court below held, in consequence, that the first, and therefore also the second, act of requisitioning was regular in form. It relied exclusively upon the promise to pay which had been issued and assumed that thus all the requirements of the law had been fulfilled. In the opinion of the court below, the relevant rules which governed the subject matter had been observed, namely, those laid down in Hague Convention IV of 1907 and in the substantially identical Italian Law of War of 28 July 1938, n. 1415. In other words, one, or even two requisitioning orders had been issued by the competent German military authorities. The appellant had received an indemnity in the form of a promise of payment which was a negotiable instrument. The...