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Receipt of e-mails in business transactionsBGH, Urteil vom 06.10.2022 – VII ZR 895/21

Business transactions and in particular business transactions in the construction industry are now predominantly conducted digitally. However, with regard to the validity and legal consequences of declarations sent by e-mail, the traditional provisions of the German Civil Code (BGB) still apply. Although these rules are tailored to declarations of intent made orally or written, they are also applicable to declarations of intent made by e-mail. With regard to the question of when e-mails are received in entrepreneurial business transactions, the Federal Supreme Court recently addressed the issue and set a further course here. In detail:

What was the issue?

A client commissioned a contractor to carry out metal construction and façade greening work. After completion of the work, the contractor invoiced the client for its services in an amount of € 254,335 net. The client’s final invoice audit resulted in a final amount of € 14,538, which was subsequently paid. The client also sent the contractor a corresponding final payment declaration. The contractor objected to the final payment and demanded a further payment of € 14,347. Subsequently, correspondence took place regarding this further claim and the client offered that he would still pay this further claim, but that no further claims should be asserted. The contractor’s lawyer replied by e-mail dated 14.12.2018, 09:19, stating that the claim from the final invoice amounted to just this outstanding amount and that no further claims would be raised if payment was made. However, in another email dated 14.12.2018, only slightly later, namely at 09:56, the lawyer then stated that a final examination of the contractor’s claim amount had not yet taken place and that the first email, i.e. the one from 09:19, should therefore be disregarded. On 17 December 2018, the contractor then submitted a final invoice to the client for a residual claim in the amount of € 22,173. A few days later, on 21 December 2018, the client then transferred an amount of € 14,347 to the contractor, i.e. the amount that the contractor’s lawyer had stated. No further payments were made. The contractor has now filed a claim for payment of the difference amount of € 7,826, which in his view is still outstanding.

What was the BGH’s decision?

The contractor’s action was unsuccessful. The BGH ruled that the contractor had submitted an effective and legally binding offer to conclude a settlement to the client by means of the e-mail from his lawyer, the subject matter of which was that with the payment of a further amount of € 14,347, further claims of the contractor would not be asserted. This offer was also binding for the contractor, since according to the decision of the BGH, the offer had already been received before the client received the second e-mail from the contractor’s lawyer, in which one could possibly recognise a revocation of the declaration of intent by the contractor.

Against the background that according to the statutory provision of Section 130 (1) sentence 2 BGB the revocation can only be successful if it is received by the recipient, i.e. the client in this case, before or at least at the same time as the declaration of intent to be revoked, it was of decisive importance to determine when exactly the first e-mail was received. This question arose in particular in view of the narrow temporal context, as the second e-mail was sent only 37 minutes later.

The question of when e-mails are received is disputed in jurisprudence. According to one view, an email is already considered to have been delivered when it is received by the recipient in his or her electronic mailbox. According to another view, the receipt of an e-mail is to be assumed if the e-mail has been received in the mailbox and, in addition, knowledge of the e-mail can be expected according to the usual course of business. Although the Federal Supreme Court refrained from finally deciding this question in the course of this ruling, it has now decided that, at least in business legal transactions, an e-mail is deemed to have been received if the e-mail is made available for retrieval on the corresponding server during normal business hours. In this case, the e-mail is deemed to have reached the recipient’s sphere of influence in such a way that the recipient can be expected to have taken notice of it under normal circumstances. It is not a matter of actually taking notice.

Since the first e-mail was sent at 09:19 and was made available on the server ready for retrieval and that this occurred during the client’s business hours, the e-mail was thus received at 09:19 . The revocation declared by e-mail at 09:56 was therefore late. With the payment effected on 21 December 2018, the offer to conclude the settlement was then impliedly accepted. The action was therefore unfounded.

Practical tip!

Those who frequently deal with construction law disputes in their daily practice will know that the question of the receipt of declarations of intent and, in particular, the evidence in this regard, is often a conflict-prone topic between the parties and may even be decisive for the outcome of court disputes. Although the present decision does not deal with the fact that it was disputed between the parties that the email had been received at all, the decision also has a content for daily practice that cannot be neglected from another point of view. This is that, according to the case law of the Federal Supreme Court, once a declaration of intent has been made by e-mail during business hours, it is practically no longer possible to revoke it. Unlike the case where, for example, a postal letter has already been placed in the letterbox, in the context of e-mails it is practically no longer possible to place a corresponding revocation of the declaration in the recipient’s letterbox or deliver it to him by courier in good time. The ill-considered sending of e-mails, especially those containing offers to conclude a settlement, can therefore quickly have undesirable consequences if the declarant subsequently comes to the conclusion that the offer does not quite correspond to his or her interests.

Therefore: Be careful when sending e-mails with corresponding declarations of intent, as these are usually not revocable!

Just as an aside and in conclusion to this article, it should be mentioned that unfortunately the case law in this regard remains very inconsistent and dependent on the individual case. For example, the Higher Regional Court of Hamm ruled in a decision of 09.03.2022 – 4 W 119/20 – that for a separate case, namely that the declaration is not directly reproduced in the email text but is contained in a PDF file attached to the email, access should only be assumed when the recipient of the email has actually opened the attached file. The senate justified the decision by stating that the recipient could not reasonably be expected to have the appropriate software to open the files and that there were security risks due to the possibility of viruses. In view of the fact that this would have the consequence of considerably restricting legally secure business transactions via e-mail, which would certainly not have been the intention of the legislator, it is to be assumed that there will be divergent higher court rulings in this regard.

Interesting times!


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