Receipt of e-mails in business transactions

In business transactions, an e-mail is considered to have been received if it is made available to the recipient on the mail server ready for retrieval during normal business hours. It is not necessary for the e-mail to actually be acknowledged.

Facts

The background to the case decided by the Federal Court of Justice (Bundesgerichtshof, "BGH") was a dispute about a claim for compensation for work. A subcontractor - the later plaintiff - had performed construction work as part of a larger construction project. The final invoice issued for this work was reduced by the building contractor - the later defendant. The subcontractor objected to this reduction and demanded a final payment of approx. 14,000 Euros plus attorney's fees.

The contractor then offered payment in this amount without acknowledging any legal obligation. The subcontractor initially accepted this offer by e-mail. About half an hour later, however, it withdrew this statement.

Shortly thereafter, the subcontractor issued a final invoice in the amount of approximately 22,000 Euros. However, the contractor only paid 14,000 Euros plus attorney's fees and referred to the settlement offer in the earlier e-mail. The subcontractor then sued for the difference of just under 8,000 Euros.

The Regional Court dismissed the claim. The appeal against the ruling was unsuccessful. The subcontractor then appealed to the BGH.

The BGH ruling of October 6, 2022 (Ref. VII ZR 895/21)

The appeal was also unsuccessful. The BGH did not see any payment obligation on the part of the construction contractor beyond the 14,000 Euros. The BGH stated that with the payment in response to the settlement offer of the previous e-mail, a binding settlement had come about through conclusive conduct on the part of the defendant.

The subcontractor was bound by the offer of the earlier e-mail because it had been effectively received by the contractor (Section 130 (1) of the German Civil Code (Bundesgesetzbuch - "BGB")). In business dealings, it is sufficient for an e-mail to be received ready for retrieval in the recipient's electronic mailbox within normal business hours. The offer already received could no longer be effectively revoked with the e-mail from the subcontractor which followed shortly afterwards.

Practical advice

Declarations of intent are constantly encountered in legal transactions: When concluding and terminating contracts, when founding companies, when giving notice or in the context of testamentary dispositions such as a will.

Not every declaration of intent takes effect at the same time. It makes a difference whether declarations are made to people who are present or to people who are absent, and there are a number of unanswered questions regarding the receipt of electronic declarations of intent.

One of these questions has now been clarified by the BGH. It clarified that, at least in business transactions between entrepreneurs, e-mails are deemed to have been received if they arrive in the mailbox ready for retrieval within normal business hours - regardless of when they are actually read. For this reason, entrepreneurs should always keep an eye on the mailboxes of their published e-mail addresses or e-mail addresses used in business transactions and check them regularly.

On the other hand, those who submit a declaration of intent by e-mail should bear in mind that they cannot simply change their mind after sending it. Declarations of intent can only be revoked up to the time of receipt. In view of the BGH ruling, this means that if offers or other legally relevant declarations are sent by e-mail, revocation is almost always ruled out, at least within normal business hours.