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Sender of an e-mail bears the full burden of proof for its receipt

The sender of an e-mail bears the full burden of proof that the e-mail was actually received by the recipient. The sender does not benefit from a reduction in the burden of proof if he or she does not receive notification of the undeliverability of the e-mail after it has been sent. This was decided by the Cologne State Labor Court in its ruling of 11 January 2022 (Case No. 4 Sa 315/21).


The ruling of the Cologne State Labor Court is based on the following facts: In the legal dispute, the parties disputed the plaintiff's obligation to repay a loan to the defendant granted to him to finance further training. The loan agreement stipulated that the defendant would waive repayment of the loan if, for internal reasons, it did not offer the plaintiff employment within five years of completion of the training.

It was disputed between the parties whether the plaintiff received an e-mail from the defendant with an offer of employment on the last day of the five-year period. In this regard, the defendant referred to the in- and outbox of its mail account, according to which the e-mail had been sent and the defendant had subsequently received no notification of undeliverability. According to the plaintiff, he did not receive the e-mail until three days later.

In the employment relationship agreed thereupon, the defendant began to withhold EUR 500 each month from the plaintiff's wages as a loan repayment. It was of the opinion that the plaintiff had been offered a job in good time on the basis of the e-mail. The condition for waiving repayment of the loan had not occurred. With regard to the timely receipt of the e-mail, it could rely on prima facie evidence.

The plaintiff then claimed the withheld wages before the Cologne Labor Court. The Labor Court upheld the claim for payment of wages. The Cologne State Labor Court dismissed the defendant's appeal against this ruling.

Reasons for decision

The State Labor Court based its decision on the fact that the receipt of an e-mail must be demonstrated and proven by the sender. According to the court, the sending of the e-mail does not constitute prima facie evidence of receipt by the recipient. In particular, the court believes that it is uncertain whether the e-mail is received on the recipient's server after it has been sent. As with ordinary mail, it was technically possible that the message has not reached the recipient. This risk could not be placed on the recipient. As it was the sender who chose the method of transmission, it should be his or her risk that the message will not arrive. Besides, to ensure that an e-mail had reached the recipient, the sender had the option of requesting a read confirmation.

Notes for practice

The decision confirms previous case law. The Berlin-Brandenburg State Labor Court had previously come to the same conclusion that it was not sufficient proof of receipt of an e-mail that the e-mail had been sent (ruling of 27 November 2012, Case No. 15 Ta 2066/12).

Whether such high requirements for prima facie evidence are still up-to-date is at least debatable. As a result of technical developments, it should be the rare exception today that an e-mail sent to the correct recipient does not end up in the recipient's mailbox. The parallel drawn by the Cologne State Labor Court to ordinary mail is therefore questionable.

Irrespective of this, the ruling must be taken into account. Senders of legally relevant e-mails should make sure to request a read receipt from the respective recipient. However, even this option does not offer absolute security, because the recipient can usually reject the read receipt without further ado, in some e-mail programs even by automatic default setting. To be on the safe side, it is therefore advisable to use a different form of transmission, such as registered mail or personal delivery in the presence of a witness.

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