What means, order meaning means

Correspondence in building law: if you don't write, you pay extra

Registered mail with acknowledgment of receipt

Registered mail with acknowledgment of receipt is common in business dealings. The return receipt is signed by the addressee and is usually initially used as proof of receipt. In principle, delivery can also be made to a recipient. These are people who are fundamentally authorized to receive mail. In the private sphere, this includes the direct family members of the addressee who live with them in a household or apartment (spouse, children of legal age, parents, parents-in-law, siblings). If a so-called messenger receives the letter, the letter does not arrive immediately. Access will only take place if, under normal circumstances, the letter can be expected to be passed on to the addressee.

It becomes problematic if neither the addressee nor the recipient is found by the postman delivering the registered letter. The notification of the postman that a registered mail has been deposited in the responsible post office is usually not considered as proof of access. In the opinion of the BGH, the mere notification of the deposit of the registered letter in the post office does not constitute access because the declaration has not yet come into the sphere of influence of the addressee. This means that no access can be accepted at the point in time at which the addressee can reasonably be expected to pick up the registered letter. This was seen differently with a post office box (BGH NJW 2003, 3270).

If the addressee fraudulently prevents access, he cannot derive any rights from it. Then he must allow himself to be treated in good faith (§ 242 BGB) as if he had received the letter at the time of the rejection, if he has to reckon with legally relevant notifications in the context of contractual relationships.

The matter is judged differently again if a messenger refuses to accept the letter. This cannot be attributed to an addressee if he has no influence on it. Registered mail with acknowledgment of receipt is therefore only proof of receipt if the acknowledgment of receipt signed by the addressee is returned. If, on the other hand, it is later claimed that the envelope of the registered mail was empty, the burden of proof is reversed, so that the addressee has to prove the non-access. If a registered letter is not picked up from the post office after notification of deposit, we recommend that you try to deliver again.

The registered mail

In the case of registered mail, the postman assumes the function of a witness. He logs the dropping of the letter in the mailbox of the addressee. Provided the postman works properly and does not log in advance, but only after it has been thrown in, the letter has been received. The proof becomes accessible when the sender of the letter has a receipt issued by the post office.

The normal mail

It is recommended that important letters that are to be sent by normal post are combined with a fax in advance. This includes that the correct fax number of the addressee appears in the address field and, if possible, a third party is entrusted with sending the advance fax. After that, it contributes to further access security if the third party calls the fax afterwards, has the receipt confirmed by telephone and briefly logs all of this.

The fax

The evidential value of fax logs is low. The BGH does not yet see proof of receipt in a fax transmission protocol. There is a lack of reliable knowledge of how often fax transmissions fail despite a faultless transmission report. In addition to manipulation of the transmitting device, this could be caused by a defect in the receiving device, e.g. B. be a paper jam or a line fault. Therefore, the o.k. note is at best an indication of access. However, this indication is not meaningful on its own. The image of the fax template on the transmission report also does not prove access.

The Federal Court of Justice left the question open whether, in the event of disputing fax access, the other party would have to present the reception journal for the period in question, from which it can be seen that the fax was not received (so Darmstadt Regional Court IBR 1994, 102).

However, the case law "wobbles" against the background of developing technology. Due to the “generally high reliability of the fax service”, the Jena Higher Regional Court demands increased requirements for the procedural denial of access by the recipient (Jena Higher Regional Court, judgment of 9. 9. 2002; Az .: 6 Verg 4/02). Since the court decisions on proof of receipt of a fax are very different, it is recommended to telephone after sending a fax and to note the result in addition to the fax log.

Email traffic

For electronic legal communication, the question arises whether read confirmations can be viewed as proof of access. This is problematic in that the sending of a read certificate does not necessarily indicate the sender. In this context, the question arises whether e-mails meet the requirement of the written form.

The Frankfurt Higher Regional Court is of the opinion that a complaint by email does not meet the written form requirement according to § 13 Paragraph 5 No. 1, Sentence 2, if the sender does not provide a qualified electronic signature. A normal email (without signature) would therefore not be suitable for extending any statute of limitations or setting other deadlines in motion (OLG Frankfurt, April 30, 12 - 4 U 269/11). However, this decision relates to a building law case that was also based on VOB / B.

The OLG Jena argues in the same direction in a current case. The question here was whether an email would extend the limitation period for claims for defects. The court denied that. The extension of the limitation period for claims for defects in the VOB contract requires a request to remedy the defect by the client. This must be done in writing.

A notification of defects by e-mail does not meet the written form requirement of Section 13 Paragraph 5 No. 1 Sentence 2 VOB / B, unless a qualified electronic signature is available. The limitation period for defects cannot be effectively extended with a “simple” email (OLG Jena, judgment of November 26, 2015 - 1 U 201/15). In a case of public procurement law, the Federal Chamber of Public Procurement has determined the following:

If the recipient of the declaration enters into legal communication with his e-mail address, he will be notified if it is stored in his mailbox or that of his provider. The burden of proof for the receipt of an e-mail is borne by the person who invokes it. An acknowledgment of receipt or read confirmation can establish prima facie evidence (VK Bund, decision of August 18, 2015 - VK 2-43 / 15).

In a labor law case, the Federal Labor Court regarded an email as fulfilling the requirement of the written form. If the contracting parties agree that a claim is to be asserted in writing, telecommunication transmission is sufficient to maintain the form - unless a different intention can be assumed, according to the BAG. In addition to the fax, this also includes the e-mail. The text must therefore be received in such a way that it can be stored permanently or the recipient can make a printout. The signature is waived, but not a text embodied declaration (Federal Labor Court, judgment of 16 December 2009 - 5 AZR 888/08).

Resourceful practitioners have also packed a small provocation in the correspondence: "... in addition to the disability we have indicated, we thank you for the additional order of 2,000 euros ...". If the recipient then reacts to the subject of an additional order, he can no longer deny the fact of the disability notification.

Service by the bailiff

The most expensive variant of delivery with legal “depth” is the delivery of a document by the bailiff. It is self-explanatory that this form of delivery should only be considered in exceptional cases. This delivery variant does not appear to be very suitable, particularly with regard to the time pressure that regularly exists in construction matters and the need for rapid deadlines.

This article by Dr. Hans-Michael Dimanski first appeared in SBZ / 04-2016. Attorney Dr. jur. Hans-Michael Dimanski is a partner in the law firm Dr. Dimanski, Kalkbrenner & Schermaul in Magdeburg.