Access to emails in busi­ness transactions

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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