In its ruling of October 6, 2022 (VII ZR 895/21) the German Federal Court (BGH) has decided that an e-mail in business transactions is deemed to have been received when it is made available for retrieval on the recipient's mail server. It is irrelevant whether the e-mail is retrieved and read.
Access to a declaration of intent is conclusively regulated by § 130 (1) of the German Civil Code (BGB). Nevertheless, courts have so far judged differently when an e-mail has been received in business transactions.
The background to the decision of the German Federal Supreme Court of Justice is a legal dispute between a building owner and a gardening company commissioned by her. The order was worth around 250,000 euros. After completion of the contract, the parties disputed the justification of numerous reductions until the gardening company submitted a settlement offer by e-mail, according to which it claimed approximately 14,000 euros plus attorney's fees. If the client accepted this settlement, the company would waive any further claims. The building owner received this e-mail on a working day during business hours. Three quarters of an hour later, the garden company wrote another e-mail in which it revoked the previous e-mail and reserved the right to a final review of the claim. Accordingly, the previous e-mail was not to be considered. A few days later, it submitted a final invoice for approximately 22,000 euros. The client accepted the first settlement proposal and paid 14,000 euros in the form of the settlement one week after receiving the e-mail. The garden company unsuccessfully went to court for the remaining 8,000 euros.
The BGH based its decision on the fact that the previous courts had rightly assumed that both parties had entered into a settlement-agreement in accordance with § 779 of the German Civil Code. Thus, in the court's view, the company's first e-mail was to be interpreted as an offer to conclude a settlement, the decisive factor here was whether the first offer had been effectively revoked by the subsequent e-mail. Pursuant to § 130 (1) sentence 2 of the German Civil Code (BGB), this requires simultaneous receipt of the revocation by the recipient with the declaration to be revoked. The German Federal Court of Justice thus made its first decision on the subject by clarifying that, in any case, if an e-mail is made available for retrieval on the recipient's mail server during normal business hours, it was received by the recipient at that time. In this case, the e-mail has reached the recipient's sphere of influence in such a way that the recipient can take note of it under normal circumstances. In addition, in the case of businesspeople, during normal business hours, the recipient can always be expected to take note of the message immediately after it has been received in the electronic mailbox.
It is irrelevant for the receipt whether the e-mail has been read by the recipient. For the case at hand, this meant that the settlement offer had already been received with the first e-mail at 9:19 a.m., but the revocation only with the second e-mail. According to the Karlsruhe judges, the building owner impliedly accepted the offer by paying the settlement sum. The one week until receipt of payment was still within the deadline according to § 147 (2) of the German Civil Code. No deadline had been set for a response, and the Court of Appeal had assumed that a response could have been expected within two weeks. According to the German Federal Supreme Court of Justice, the settlement thus agreed had the consequence that the company was not entitled to any claim exceeding this amount.
The Court therefore considered the revocation to be late, so that the offer was still valid. Consequently, no final decision had to be made as to when an e-mail was deemed to have been received.
With its ruling, the Federal Supreme Court of Justice has now finally clarified that the access to e-mails in the business sector depends on the basic possibility of retrieval and not on the actual knowledge by the recipient, but at the same time left open the question of how this is to be solved among private individuals. The case law does not expect e-mails to be retrieved several times a day but assumes that they are considered delivered when the recipient has indeed retrieved the message. It should therefore be noted that the case law has not solved all legal questions regarding the subject matter. Among other things, the question of when an e-mail is received outside normal business hours (for example, when the e-mail is not received on a business day, but on a Sunday or public holiday) was intentionally left open. In this case, it would be possible to assume receipt only on the next business day, as well as at the time of receipt on the mail server. It is therefore necessary to wait for a leading decision from the German Federal Court of Justice.