German Railways (Austria) Case

Docket NumberCase No. 21
Date16 Agosto 1949
CourtCourt of Appeal of Vienna (Austria)
Austria, Court of Appeal (“Landesgericht”) of Vienna.
Case No. 21
German Railways (Austria) Case.

States — Continuity of — Purported Annexation of Austria by Germany.

State Succession — Succession to Liabilities — Liabilities Incurred by German Railway Administration in Austria — Re-establishment of Independent Austrian State — Whether Austria Liable for Debts Incurred by Germany.

The Facts.—Some time after 1945 the appellant brought an action against the Government of the reconstituted Republic of Austria in which he claimed payment of certain moneys owing to him by the former German Reich as a result of liabilities incurred by the German Railway Administration in Austria between the years 1938 and 1945.

Held: that the Republic of Austria was not the successor of the former German Reich, and that accordingly the Austrian Government could not be held liable for debts incurred by Germany while the latter country was in occupation of Austria. The Court said:

“The appellant regards as wrong in law the argument of the court of first instance which dismissed the action on the ground that Section 1409 of the Austrian Civil Code could not be relied upon to support the plaintiff's claim, because the Republic of Austria cannot be regarded as the successor of the German Reich, and because for this reason there cannot have been in existence a transaction between transferor and transferee.

“First, reference must be made to the wording of Section 1409, which is as follows : ‘Where a person takes over assets or a business enterprise … without prejudice to the continuing liability of the vendor …’. This clear provision states distinctly that the vendor must continue to be in existence after the taking over; otherwise it would not have provided for the continuing liability of the vendor. It is true that account must be taken of the dynamic nature of the law, but this...

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