For a long time now, it has been absolutely customary to use e-mail for urgent communication, even in business dealings. This is especially true since more and more companies no longer communicate by fax. In business communication, it is often important to know when the other party has actually received a letter. Among other things, this involves compliance with deadlines. The question now arises as to when an e-mail is legally deemed to have been received.
This year, two notable decisions were issued on this subject, which also show how exactly one must proceed from a legal point of view. In both cases, it was not a question of whether the e-mail had ever arrived in the recipient’s mailbox at all. In the event of a dispute, this must always be proven by the sender. Rather, the issue was when an e-mail that the recipient had received in his or her mailbox was to be considered received in the legal sense.
The Higher Regional Court (OLG) in Hamm decided in a case concerning competition law in March 2022 (09.03.2022, 4 W 119/20):
“If a warning letter is sent merely as a file attachment to an email, it is generally only received if and when the email recipient has actually opened the file attachment.”
The OLG Hamm justified this with sound arguments as follows: Due to the risk of viruses, there is a general warning against opening attachments of e-mails from unknown senders. In such a case, the recipient could not be required to open the file attachment.
Taking this view into account – which is also supported in the renowned commentary literature – great caution is therefore required at least if the recipient does not already know the e-mail address of the sender from previous correspondence. Any letters that serve to meet deadlines or for which the time of receipt must be proven for other reasons should never be sent only as an attachment to an e-mail. If the relevant content is (additionally) written in the email itself and not only in the attachment, this may be sufficient, taking into account the case law of the OLG Hamm. Even then, of course, one must be able to prove receipt of the email by the recipient.
Only seven months later, the Federal Supreme Court (BGH) stated on the question of the receipt of an e-mail (judgement of 06.10.2022, VII ZR 895/21):
“If an email is made available for retrieval on the recipient’s mail server within normal business hours in business transactions, it is generally received by the recipient at that time. The fact that the email is actually retrieved and taken note of is not required for receipt.”
The BGH justifies this with equally sound arguments: The mail server used by a recipient to receive e-mail messages is to be regarded as his sphere of power in which declarations of intent in electronic form can reach him/her, provided that the recipient expresses the intention to conclude legal transactions by means of electronic declarations in the form of e-mails by publishing the e-mail address or other declarations in business transactions. Electronic declarations of intent in the form of e-mails are saved as a file and forwarded from the sender’s mail server to the recipient’s mail server. The recipient is informed of the receipt of the e-mail. At this point, the recipient is able to retrieve the e-mail message and display it on his or her terminal device.
Now, at first glance, there seems to be a clear contradiction between the two decisions. However, the BGH does not even mention the decision of the OLG Hamm in its ruling. This would be necessary, however, if it wanted to distinguish its decision from the opinion of the OLG Hamm. However, it did not have to, because the BGH’s decision dealt with the question of when an email is deemed to have been received in business dealings. The OLG Hamm had dealt with the more specific question of when an attachment to an email is deemed to have been received. Thus, upon closer inspection, there is no real contradiction between the two decisions. However, since according to the BGH the e-mail is deemed to have been received when it is received in the mailbox during normal business hours, irrespective of whether it has been acknowledged, one might also argue that this would then equally apply to the attachment (which has not been acknowledged). It is therefore not altogether clear whether the BGH would have come to a different conclusion than the OLG Hamm on the question on which the OLG Hamm had to decide.
Hence, to be on the safe side, one should assume the following views on the sender’s and recipient’s side:
- As a recipient, one should assume on the basis of the decision of the BGH that an email including an attachment received in the mailbox during normal business hours is deemed to have been received regardless of whether it has been acknowledged.
- As the sender of an e-mail, one should assume on the basis of the decision of the OLG Hamm that at least a letter sent only as an attachment to an e-mail has only been received when the recipient has actually read it and also that he is not obliged to read it (risk of virus load).
The fact that both sides can always argue well in both directions with the respective legal opinion and also the fine differences in the facts of the case, which the OLG Hamm and the BGH respectively had to decide on, is another matter. The same applies to the question of whether one can gain legal advantages by simply not opening an attachment to an email. All this is left to the skill of your lawyer.