New Issues when Sending E-Mails
E-mails are practical. They are easy and fast. When entering the recipient’s correct address, it is very likely that the recipient also receives the e-mail. However, there are some issues which must be avoided when sending legally relevant e-mails. The Higher Regional Court (“Oberlandesgericht (OLG)”) Hamm (resolution dating March 9th, 2022, – 4 W 119/20) and the Federal Court of Justice (“Bundesgerichtshof (BGH)”; resolution dating November 18th, 2021, – I ZR 125/21) recently extended the list of issues.
In advance it has to be clarified that an e-mail complies with the textual form pursuant to sec. 126b German Civil Code (“Bürgerliches Gesetzbuch (BGB)”), but not with the written form pursuant to sec. 126 BGB. As a consequence, if a declaration for which the written form is required (e.g., terminations of rent and labour contracts, secs. 568, 623 BGB) is sent by e-mail, it is void (sec. 125 BGB).
A form-valid e-mail is a declaration amongst absentees which becomes valid upon receipt by the recipient (sec. 130 para. 1 sent. 1 BGB). The sender bears the burden of proof for the receipt by the recipient. Aforementioned resolutions by OLG Hamm and BGH concretized and increased the requirements for proving receipt. Hereinafter we present the content of the resolutions (I. and II.) and give You practical advice (III.).
I. Careful when Sending Letters as Attachments – OLG Hamm
In the case present, the lawyer of a webshop sent to another webshop per e-mail a competition warning letter. The recipient did not know the lawyer. The reference field of the e-mail only contained the lawyer’s internal file reference number. In the e-mail text was only written that attached letters are only sent by e-mail. The file attachments were two pdf files: the competition warning letter and a draft declaration to cease and desist.
During the court proceedings, the recipient claimed to not having received the competition warning letter and draft declaration to cease and desist. He succeeded. When sending a letter as file attachment, it is received in the moment of actual cognizance. This is when the attachment is opened. Because of the risk of spam e-mails and the risk of computer viruses resulting therefrom, it cannot be expected that a recipient opens file attachments from unknown senders, according to OLG Hamm.
II. Obligation to Request Read Confirmations – BGH
The BGH was summoned to decide a case in which a lawyer agreed with her client that the client assesses internally whether an appeal against a lower-level court should be lodged. During the appeal notice, the lawyer remined her client several times of the pending notice. On the day before the notice ended, the client came to the conclusion that the appeal should be lodged. The client’s statutory agent intended to send an according e-mail to the lawyer. Whether he really sent out the e-mail remained unclear. At any rate, the lawyer did not receive such e-mail. On the day the notice ended, the lawyer sent an e-mail to the client in which she stressed the imminent ending of the appeal notice. This e-mail, however, was not received by the client, probably for technical reasons.
Therefore, the appeal notice was not met. The lawyer applied for reinstatement to the previous state. She argued that the notice was not met without fault for technical reasons.
The BGH refused. It argued that the notice was not met with fault. Due diligence requires that e-mails which serve the purpose to meet a notice may only be sent out with read confirmation. This is the only way how a lawyer fulfils his due diligence to ensure receipt of the e-mail.
III. Practical Advice
It is difficult to prove receipt of an e-mail. According to experience, important e-mails are quite often (for technical reasons) not at all, only partially, or blankly (empty) received, moved to the spam folder by the spam filter, or considered spam by the recipient.
The OLG Hamm decision according to which it cannot be expected that attachments to e-mails from unknown senders are opened is practice-oriented, but makes proving receipt more difficult. It thus has to be avoided that a recipient may confuse an e-mail with spam. Therefore, it is recommended to describe the content of the attachment in reference and text, and to not simply refer to the attachment. Depending on the importance of the letter it may be even necessary to also send the letter by regular mail—maybe even as registered mail with return receipt (“Einschreiben-Rückschein”).
In the event a notice (set by a court) has to be met, we recommend to send e-mails only using read confirmations. In addition, it is suggested to contact the recipient via telephone and ask whether the e-mail has been received.
Do You have any queries? Feel free to contact us!