Lessinger v Mirau

CourtCourt of Appeal of Schleswig (Germany)
German Federal Republic, Oberlandesgericht of Schleswig-Holstein.
Lessinger
and
Mirau.1

International Organization — Specialized Agencies — International Monetary Fund — Articles of Agreement of — Regulation of Currency and International Exchange — Recognition of Such Regulation by Other States — International Recognition of Exchange Control Regulations — Article VIII, Section 2(b), of Articles of the Fund.

The Facts.—The parties were citizens and residents of Austria. On May 1, 1949, they concluded a contract in Vienna under which the plaintiff was to supply 30,000 Austrian schillings to the defendant and K. in order to permit them to try out a system of roulette at San Remo. The plaintiff was to receive 30 per cent. of the profits, and was guaranteed 9,000 schillings a month as a minimum without any deduction for losses. The plaintiff was given various securities, including a bank draft with which he was to pay himself at the due date but not later than 90 days after putting up the money. The capital and profits were to be paid by the defendants to the plaintiff or his representative in Vienna or at such place in Switzerland or Italy as the plaintiff might prescribe. The plaintiff gave the defendant and K. U.S. $1,000, the countervalue of 30,000 schillings. The defendant and K. made no payment to the plaintiff, who then brought this action in Germany, where the defendant had become resident, asking that the defendant be ordered to pay into a blocked account in the plaintiff's name the equivalent in German marks of U.S. $1,000.

Held: that the action must fail.

The Court said: “The loan contract is subject to Austrian law, for it is with this legal system that the relations between the parties have their most important contacts. … The applicable Austrian law includes Austrian exchange control regulations. However, the question whether in the case of the applicability of foreign law the foreign exchange control laws must also be applied, has not been

agreed upon by all authors. It has been argued, in particular, that foreign exchange control is public law and, consequently, excluded from application abroad as a matter of principle … This opinion, however, is unsatisfactory. Foreign exchange law is by no means exclusively public law. The provisions concerning the effectiveness in private law of unlicensed transactions are part of private law. …

“It is, moreover, alleged that foreign exchange laws are tied to the territory and thus excluded from...

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