In an era of “digital business” and communication via electronic data transmission, the Federal Supreme Court recently addressed the question of whether and when an email is received in business transactions in the legal sense in its ruling of 6 October 2022.
Access to declarations of intent and their significance for email traffic
The receipt of declarations of intent is of essential importance in legal and business transactions. If it is a declaration of intent among absent persons, its legal consequences only become effective upon receipt by the recipient. According to the general provisions of the German Civil Code (BGB), a declaration of intent is received when it has reached the recipient in such a way that the recipient has the opportunity under normal circumstances to take cognizance of the contents of the declaration. A revocation of this declaration of intent only becomes effective and can eliminate the legal consequences of the declaration of intent if it is received before or at the same time as the declaration of intent (cf. § 130(1), Sentence 2 BGB. If the revocation is received late, the sender of the declaration of intent will be bound by it.
Nowadays, a large part of corporate business communication takes place via electronic media, especially email. Until now, it has been disputed how access to emails in business transactions is to be evaluated in concrete terms. According to the general rules of access to declarations of intent, the actual retrieval of an email as well as its reading should not be required. In legal literature and by some courts, the view has been held, at least up to now, that an email is only received when the sender can expect to take note of the email in the normal course of business. It follows that emails are expected to be retrieved by the end of business hours at the latest. However, there are also other views in legal literature and legal rulings which assume that access is immediate when an email is received in the recipient’s electronic mailbox ready for retrieval.
By way of its ruling, the Federal Supreme Court has now clarified: If an email is made available for retrieval on the recipient’s mail server during normal business hours, it is generally deemed to have been received by the recipient at that time.
Thus, it is not a question of actual knowledge or when such knowledge can be expected, but rather when there is typically the possibility of such knowledge. In practice, this difference can usually be several hours. The Federal Supreme Court bases its decision on general rules: In principle, it is possible to check emails within business hours in business transactions. Whether or not internal organisation provides for this only towards the end of the business day is irrelevant.
Practical consequences and recommendation
As a consequence of this ruling, the time of receipt of an e‑mail is now predictable for the sender and essentially corresponds to the time of sending. Subject to technical problems, a sender can rely on the email’s receipt, but is in return regularly irrevocably bound by his or her declarations. Conversely, recipients may rely on statements that reach them during their business hours. A revocation sent by a sender immediately afterwards is also generally irrelevant.
Nevertheless, electronic inboxes should be attended throughout business hours to keep track of the receipt of statements and associated deadlines. Therefore, even at critical times such as Friday evenings, care must be taken to ensure that appropriate workstations are permanently staffed.
The question of how to deal with statements communicated outside normal business hours, for example on a Sunday or public holiday, was left open by the Federal Supreme Court. Nevertheless, the ruling provides some long-needed legal clarity at a time when emails have long been standard as part of electronic commerce.
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