"Non-Germans" Under the Third Reich (92 page)

II…. In principle the Civil Code grants the landlord the right of termination of the tenancy contract without notice only in cases to which sections 553 and 554 apply. Neither of these is applicable here. Legal practice has, however, for a long time developed the principle that the legal concept embodied in the terms of sections 553, 626, and 723 of the Civil Code is quite generally valid for long-term obligations. Accordingly, such obligations can be terminated without notice if an important reason is given…. The presence of Jews in the house he lives in is a nuisance for any German; it is embarrassing for him to meet them, to say nothing of having to stand in relationship to them.

This point of view has taken on considerably more significance since the events of the last weeks [this refers to the “Kristallnacht” of November 9–10, 1938—Author]. Developments have shown that it has become in supportable for Germans and Jews to live in the same house. Implementation of the tenancy contract is threatened by the person of the tenant, by his membership in the Jewish race….

The plaintiffs’ right to termination without notice is in the present instance not affected by the fact that the contract was revoked subject to the contractual period of notice. For if the regular notice served by the plaintiffs on November 1, 1938, was based on the fact that the defendants are Jews, the Jewish murder in Paris on November 7, 1938, and the defense measures of the German people and the Reich government thus engendered have indicated the need for an
immediate
separation in space of German and Jews in all clarity.
¹⁰⁷

Nonetheless, there were also a number of judgments pronounced in conformity with the law, and eviction actions against Jewish tenants on the sole grounds of their descent were overruled for want of a legal basis.

Thus, for example, in October 1938 the Charlottenburg Court of First Instance was still delivering such judgments,
¹⁰⁸
which were criticized by the proponents of a hard line as being completely misguided. The court held that recourse to legal regulation for discriminatory action must be upheld in pleas against Jews. This was opposed by lawyers who argued that, notwithstanding the lack of legal regulation, interpretation of the law “according to ideological arguments” was correct.
¹⁰⁹

Other courts, too, came under similar criticism (“a complete misunderstanding” of ideological unity)
¹¹⁰
for passing fair judgments. Examples are the Spandau Court of First Instance in its decision of October 1938
¹¹¹
and that of the Hindenburg Court of First Instance of September 1937, which also rejected the senseless interpretation of the concept of “nuisance” quoted above; a nuisance presupposed a fault on the part of the tenant, but the fact of Jewish descent was not a fault.
¹¹²
Lastly, in a decision of May 1938, the Nuremberg Court of First Instance, still firmly anchored in the liberal tradition, flatly refused the use of political slogans—that is to say the National Socialist community concept—in civil law: “Regulations under public law of a political nature are not applicable in the civil matter of a tenancy agreement.”
¹¹³

The coming into effect of the Law on Tenancy Contracts with Jews of April 30, 1939,
¹¹⁴
elevated special law to the rank of legality. Decisions in favor of Jewish tenants were rendered impossible, since protection of the latter was declared inapplicable, and the right to terminate at any time was established for all tenancy contracts (including long-term and fixed-term contracts). Admittedly, in order to prevent the crassest abuse, a certificate from the local authority was required of the landlord showing that the Jewish tenant was assured of alternative accommodation (sec. 9). But even without such a certificate, a landlord was able to lodge a petition to terminate the tenancy under the terms of the Protection of Tenants Law.
¹¹⁵
Of significance, however, as the Prussian Supreme Court in Berlin stated, is the fact the court was not bound to check the accuracy of the certificate, and this could only go against the interests of the Jewish tenant.
¹¹⁶

Just as discrimination against Jews in all sorts of ways was taken for granted in tenancy law, the special-law principle was never allowed to operate in favor of a Jew; the Prussian Supreme Court in Berlin refused a claim for a rent reduction by a Jewish tenant pleading major commercial losses: the exclusion of Jews from the German economy, on which the claim was based, did not justify a reduction in rent.
¹¹⁷

d. Labor Law

As in tenancy law, the concept of termination without notice was introduced into labor law for racist reasons.
¹¹⁸
Although the racist legislation concerning Jewish employees engaged in public service was basically not applicable to the private sector until 1938, the right to terminate was frequently invoked on the grounds of freedom of contract. From 1933 on, a wave of dismissal notices swept over employees of Jewish descent, either subject to a period of notice or with immediate effect “for an important reason” (sec. 626, Civil Code). A large number of such rulings were published in 1933 and 1934; they became rarer after 1935, probably because Jews no longer dared seek the protection of the courts.

The differentiated approach adopted by legal practice has already been outlined in detail in part 1, section 1, V. (“Professional and Labor Law”), so a few brief notes will suffice here. Regarding dismissal for the sole reason of race, it was clear following the judgments given by the Reich Labor Court in particular that labor contracts with Jewish employees could be terminated by regular notice.
¹¹⁹
Economic considerations were also admitted, even if they were only a pretext, as grounds for such layoffs of Jewish workers. There was disagreement about whether race was an “important reason” for dismissal without notice within the meaning of section 626 of the Civil Code. The Reich Labor Court, though maintaining the standpoint that the dismissal of non-Aryan personnel without notice was admissible only in the public service domain, not the economic sector, recognized that it was “impossible to ignore the effects that the German people’s new attitude toward Jewry, engendered by the national revolution, would have in the field of private law of contract.” The question was thus whether it was reasonable to continue a contractual relationship until the expiry of the regular time limit. Whether or not the race question conflicted with the maintenance of an employment contract could, however, only be judged according to the specific circumstances of the case.
¹²⁰

The Decree on the Exclusion of Jews from German Economic Life of November 12, 1938,
¹²¹
was bad news for executive personnel, since it provided for termination of their employment contracts with a period of notice of six weeks. The right to give notice to such personnel was greatly expanded, in that, for example, legal practice defined executive personnel not only as persons with a supervisory function; the category also included those who “had even only an indirect influence on the running of the undertaking.”
¹²²

In addition to the matter of termination of employment, Jewish workers were subject to a special law regarding social benefits. From 1939 on, the courts had maintained the principle that Jews should be excluded from payment of wages for public holidays and vacations and from other social benefits, that payment should be made only for the actual work performed,
¹²³
a precise anticipation of future legislation excluding Jews from all social benefits.

In doctrinal terms—in line with the National Socialist ideology of community and loyalty—this discrimination against Jews under special law was justified by the existence of an obligation of loyalty and care toward workers set out in laws and wage agreements, an obligation in which only those who shared the identity of race, that is national comrades, could participate. This was tantamount to denying Jews all the benefits of laws “designed exclusively for German workers.”
¹²⁴
The same result was reached by appealing to the “enlightened contemporary views” as a source of judgment.
¹²⁵

A new development set in with the implementation of the Decree on Employment of Jews of October 3, 1941,
¹²⁶
which retroactively legalized the jurisdiction hitherto exercised. This decree effectively removed Jews from the protection of labor law and declared their employment contracts to be “special employment relations.” Such legal relations sui generis thereby became subject exclusively to the special regulations of the Reich Labor Administration and the Security Police, a matter that cannot be pursued in more detail in the present context.
¹²⁷

Pension rights under company pension plans were also in effect reduced or withdrawn from Jews without basis in the law. The Reich Labor Court drew the fine distinction that although the litigious claims were “in principle” founded, the amounts to be granted (“appropriateness”) should be reduced because of the claimants’ Jewish descent; justification for this was found in section 242 of the Civil Code, because the present sense of justice gave the race concept priority over purely economic considerations.
¹²⁸
The “claim to satisfaction” should not be allowed to come into conflict with what the National Socialist convictions of the German people considered right and proper.
¹²⁹

Jewish workers who had retired before the Exclusion Decree of November 12, 1938,
¹³⁰
did not lose their entitlement, but they were subject to cuts in the sums paid.
¹³¹
Jews who had left their jobs before January 30, 1933, however, were fully excluded from company pension benefits, since it would be in contradiction to the “sound thinking of the people” to allow a Jewish worker “to partake of the positive development of the committed undertaking when a fair assessment of his pension is made, for such success owes nothing to him but is a result of the upsurge in the economy brought about by the National Socialist leadership.”
¹³²

e. Commercial Law

Prior to 1938, court judgments in commercial law followed the government line that special treatment of Jews was not permissible with respect to their economic activity. The Jewish question, as the Reich minister of justice stated in a decree dated March 14, 1936,
¹³³
was regulated by the state leadership alone. The only exception at that time was in the matter of company names, where the special-law principle of separating Aryans from non-Aryans was enforced in advertising.

Thus, the acquisition of a trading company with retention of the former trade name (sec. 22, Commercial Code) was nullified as an offense against public morality (sec. 138, Civil Code) if it led to “a Jew doing business under an Aryan name,” irrespective of whether the vendor was aware of the purchaser’s race.
¹³⁴
It was also a violation of public morality to change a firm’s name that indicated a Jewish owner with the intention of concealing the owner’s Jewish origins.
¹³⁵
A Jewish owner who displayed the name of his firm in large letters and his Jewish last name in smaller letters in an attempt to deceive was found guilty of an infringement of both industrial law and the law against unfair competition.
¹³⁶
The designation
German
in the name of a firm could be prohibited and a change of name justified (sec. 18, par. 2, Commercial Code) if the owners of the firm included “a Jewish-sounding name,”
¹³⁷
since the word
German
gave the impression that the owners were of Aryan descent and its use was permitted only if this was in fact the case.
¹³⁸

The year 1939 saw the appearance in commercial law of discrimination practices that had long been current in other fields. Court rulings became increasingly harsh.“The commitment of an Aryan businessman to a restraint-of-competition clause designed to protect the Jewish party to the agreement” was in contradiction with good faith and common usage if the competitive situation arose solely out of de-Judaization measures in the German economy.
¹³⁹
The boycott of a “wholesaler of Jewish kin” by a wholesale coal association with a monopoly position, which had “acted without intent to cause injury,” was, in the opinion of the Reich Supreme Court, neither in contradiction to the law nor an infringement of the rules of fair dealing.
¹⁴⁰
In addition, the regulations promulgated against Jews since 1938 were further tightened up.

In the implementation of the Decree against Conspiring to Camouflage Jewish Businesses of April 22, 1938,
¹⁴¹
the term “Jewish character” of the business (sec. 1) was interpreted broadly by the Reich Supreme Court, which declared a de facto dominating influence of Jews to be sufficient, irrespective of the legal situation,
¹⁴²
a standpoint anchored in the Third Decree to the Reich Citizenship Law of June 14, 1938.
¹⁴³
On this basis the Reich Supreme Court declared the acquisition of a Jewish-owned spa by an Aryan for his son from a marriage with a Jewess to be a violation of the Camouflage Decree, since the business continued to be “under Jewish management,” whereas the district president had permitted the purchase on condition that it would be managed by Aryans.
¹⁴⁴
In interpreting the offense of camouflage of the Jewish character of a business, “ethnic considerations” and the “racial obligations” of the owner were the criteria of whether or not there had been deception.
¹⁴⁵
Jewish owners whose company had a non-Jewish name were forced to drop it. This was also the case for the liberal professions, which were not covered by the trade regulations, in defiance of the meaning of the Camouflage Decree.