Judgment discussion: When is an e-mail considered received? Impact for the DACH region
A recent decision by the Federal Court of Justice of the Federal Republic of Germany on access to an e-mail(BGH, VII ZR 895/21, ruling dated October 6, 2022) is also likely to have implications for companies throughout the DACH region[1].
What did the Federal Court of Justice decide?
Until now, it has been unclear when an e-mail is legally considered to have been "received" by the recipient. While some thought that it was a matter of when the e-mail was received in the electronic mailbox ready for retrieval, others thought that the decisive factor was when retrieval and acknowledgement could usually be expected in the course of business.
The Federal Court of Justice now provides clarity, even though it expressly ruled only for business transactions:
"The case in dispute does not give rise to a comprehensive decision of the legal question. At least in the case, according to the unchallenged findings of the Court of Appeal, that the e-mail is made available for retrieval on the recipient's mail server during normal business hours in the course of business transactions, it was generally received by the recipient at that time. This is because the e-mail has reached the recipient's sphere of influence in such a way that he or she can take note of it under normal circumstances. The fact that the e-mail is actually retrieved and taken note of is not required for receipt." (para. 19)
The Federal Court of Justice also gave technical reasons for its decision:
"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 latter 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." (para. 20)
What's so new about it?
In the case decided, the issue was that the e-mail received containing a settlement offer could no longer be effectively revoked pursuant to Section 130 (1) sentence 2 of the German Civil Code (corresponding mutatis mutandis to Art. 9 (1) of the Swiss Code of Obligations). Until now, however, the point in time of receipt was disputed. Some of the previous rulings were still from a time when not everyone with a smartphone had access to their e-mails at all times. Also, not everyone had access to their emails and email inbox almost always and everywhere some time ago. Today, hardly anyone uses a webmailer (retrieving emails via a website) in business dealings. The Federal Court of Justice now clarifies: If the email has been sent and is available for the recipient to retrieve, then it is considered to have been received. Since the majority of e-mail accounts are handled via IMAP or Exchange servers and automatic retrieval takes place, the technical question of proof as to when the e-mail is available for retrieval on the provider server is probably no longer relevant in practice. In view of the widespread use of e-mails in business transactions, it should be sufficient, especially in a lawsuit, for the sender to be able to prove that the e-mail was sent from his mailbox. This is because today's provider technology delivers the e-mail within seconds. Nevertheless, a legally and technically exciting question remains: What happens if the recipient uses a firewall and the delivery of the e-mail is thus delayed? At this point, the e-mail is ready for retrieval on the server, but cannot yet be transmitted to the end device. According to the above-mentioned case law of the German Federal Court of Justice, this is irrelevant. The e-mail is considered delivered as soon as it is retrievable on the provider.
And what does that have to do with Switzerland and DACH?
In business dealings, companies should know that the premature sending of an e-mail with a settlement proposal, for example, cannot be revoked by sending a subsequent e-mail (so in the decision of the Federal Court of Justice). Entrepreneurs should also know that contracts can be concluded by e-mail if no special form is prescribed.
It is true that the Swiss Federal Supreme Court (BGer 2 C_699/2012, ruling of October 22, 2012) has stated that e-mail traffic is "fraught with danger":
"It can be assumed as generally known today that e-mail traffic is fraught with danger and generally only reliable to a limited extent. In particular, the proof of the access of electronic messages to the sphere of influence of the received person is recognized to be difficult due to the technical circumstances. [...]. In practice, the possibility remains to demand an acknowledgement of receipt from the person received and to react in the absence of such acknowledgement. Sending a decision-relevant communication by e-mail without taking further (control) measures does not correspond to diligent fulfillment of the contractual relationship (Art. 389 CO)." (E. 4.2)
However, in view of technical developments, this decision is unlikely to be made today.
What do our experts say?
Sven Kohlmeier, lawyer and specialist in IT law:
The Federal Court of Justice's decision reflects current technical progress. It is the same with e-mails as with a mailbox: If the mail is posted, it is deemed to have been received in the course of business, as it enters the exclusive sphere of power of the recipient. If the mailbox is full, no mail can be posted and there is no access. This is also the case with e-mail: If the e-mail is received on the recipient's mail server and can actually be retrieved technically, the e-mail is deemed to have been received. If the e-mail server is full and the e-mail is not available for retrieval, there is legally still no access.
Apart from the notification of sending in one's own outbox, however, there is no court-proof proof that the sent e-mail has reached the recipient. Here, too, the following applies: In view of the technical progress and the precision of the providers, the outbox of the sender will be a considerable indication, if not proof, of the sending and thus also the receipt of the e-mail.
For the private sector, the case law cannot be transferred in this way without further ado. This is because the recipient cannot be reached during normal business hours, as is the case in the corporate sector. However, even in the private sector, an e-mail is considered to have been received if it reaches the recipient's sphere of influence and is usually retrieved. This is likely to be the case on the evening of the same day the e-mail is sent.
Do you have questions about the legal aspects of business e-mail traffic? Feel free to contact Sven Kohlmeier.
[1] Germany, Austria, Switzerland