Austrian Supreme Court: Quarantine and Recorded-Delivery Mail

Nov 4, 2022 Benn-Ibler Rechtsanwälte

Legally mandated self-isolation (quarantine) by a mail recipient prevents the addressee from picking up recorded delivery mail held at the post office for the duration of self-isolation. Therefore, this prevents remedying of undeliverable documents due to an individual being absent from home pursuant to Section 17(3) last sentence of the Austrian Service of Documents Act (Zustellgesetz, hereinafter ZustG).

In the present case, the court of first instance had divided up marital property and marital savings of a divorced couple. A copy of this ruling to be served on the respondent could not be delivered and was deposited for holding at the post office on 22 December 2021 pursuant to Section 17 ZustG. Due to COVID-19, the respondent was legally required to seek self-isolation, but at the time she was at a location other than her own place of residence. However, the district authorities subsequently ordered that self-isolation should take place at her own place of residence. As a result, the respondent was only able to collect the recorded-delivery letter on 5 January 2022. However, the appellate court stated that in view of the return of the respondent to the place where the certified document was being held, official delivery had already been effected by mail deposit on 26 December 2021, which was why the appeal was now out of time. If addressees are unable to collect recorded delivery items themselves, this does not justify a postponement of the date of actual delivery pursuant to section 7 ZustG.

The Austrian Supreme Court (Oberster Gerichtshof) considered as follows:

Pursuant to Section 17 (3) ZustG, a piece of official mail being held at the post office is deemed to have been served on the date it is first made available unless the addressee was unable to learn of the delivery. In this case, the document is deemed to have been delivered on the day following its return to the place of issuance. On the question of whether effectiveness depends on if an addressee is actually able to pick up a document to be served, the Austrian Supreme Court referred to several legal opinions: Judge Wessely has opined that the subjective possibility of picking up a document being held at the post office must be taken into account. According to Judge Stumvoll, picking up a document being held at the post office would indeed require an individual’s subjective possibility to do so, insofar as returning the document while in the state of procedural incapacity would preclude the validity of the document’s delivery. The Austrian Supreme Court ultimately ruled an in-effectual delivery, since official self-isolation does not constitute an obstacle specific to the sphere of an addressee. Here, picking up recorded delivery mail being held at the post office is not a matter of personal capability, but of legal permissibility.

OGH 1 Ob 156/22f (14 September 2022)