Proof of receipt of an email
Case law on the burden of proof with regard to email, fax, read receipt, and secure delivery methods.
December 14, 2022
Productivity
Background
Declarations of intent requiring receipt and actions similar to business transactions (e.g., notices of defects, warnings) become effective according to § 130 BGB when they are received by the other contracting partner.
The proof of delivery of the declaration is the responsibility of the person who relies on the delivery. This burden of proof distribution also applies to the timing, i.e., the timeliness of the delivery.
Legal Situation
Different views are held regarding the presentation and burden of proof of the delivery of an email.
On one hand, it is argued that the sender of an email has the presumptive evidence on their side, that the email they sent has arrived at the recipient unless a return as undeliverable is received. This also applies if the message may have ended up in a spam filter. An email has been received by the recipient of a declaration of intent when it is stored retrievably on the recipient's server or their provider's server (AG Frankfurt a.M., Judgment of 23.10.2008 – 30 C 730/08).
On the other hand, it is argued that the delivery of the email must be demonstrated and proven by the sender according to § 130 BGB. The sending of the email does not establish presumptive evidence of delivery to the recipient (LAG Berlin-Brandenburg, Judgment of 24.08.2018 – 2 Sa 403/18). This also applies to a sending protocol (see MüKoBGB/Einsele, 9th ed. 2021, BGB § 130 Rn. 47).
Case Law
The LAG Köln, in a recent judgment (LAG Köln, Judgment of 11.01.2022 – 4 Sa 315/21), joined the latter view. The sending of the email does not create presumptive evidence for delivery to the recipient. Whether the message enters the recipient's server after sending an email is uncertain. As with regular mail, it's technically possible for the message not to arrive. This risk cannot be imposed on the recipient, as the sender selects the method of transmission for the declaration of intent and thus bears the risk that the message might not arrive. To ensure that an email reaches the recipient, the sender can request a read receipt through the email program's options management (see BGH, Decision of 17.07.2013 – I ZR 64/13).
Comment
This case law is relevant not only in employment relationships. It must be observed in all situations where the receipt of a declaration of intent must be proven, e.g.,
Offer and acceptance
Declaration of set-off
Request for subsequent performance
Termination
Withdrawal
Revocation
Reduction
Also, in the case of a facsimile, the OK mark on the transmission report, according to the prevailing but now increasingly contested view, does not create presumptive evidence, but merely an indication of the fax's arrival, as it only indicates the connection between the sending and receiving devices. However, the transmission report does not reveal whether the data was actually transmitted or whether line disruptions or defects in the receiving device prevented this. Still, the OK mark proves that a connection with the number listed in the transmission report was established. Therefore, the recipient, within their secondary burden of allegation, must specify which device they operate at the opposite end, whether the connection is recorded in the device's memory, how they document receipt journals, and present this if necessary (see MüKoBGB/Einsele, 9th ed. 2021, BGB § 130 Rn. 47). However, you should not rely on this in case of dispute.
Practical Advice
In important cases, the declaration should be sent – initially by email with a read receipt request and subsequently – by registered mail or courier. Delivery via beA is recommended for correspondence between lawyers.
When lawyers inform their clients via email about a deadline for appeal expiring on the same day and aim to motivate them to file the appeal, they must ensure that the email is acknowledged by requesting a read receipt (see BGH, Decision of 18.11.2021 – I ZR 125/21).
Update
If an email is made available for retrieval on the recipient's mail server during typical business hours in business transactions, it is generally considered received by the recipient at that time. It is not necessary for the email to be actually retrieved and acknowledged for it to be considered delivered (see BGH, Judgment of 06.10.2022 – VII ZR 895/21).