GER: Undated Documents Are ‘Not Served’

Jun 9, 2023 Benn-Ibler Rechtsanwälte

A delivery date on the envelope of a court document to be served is a mandatory requirement for performance of service. According to the German Federal Supreme Court (Bundesgerichtshof, hereinafter BGH), if a mail carrier does not write the delivery date on the envelope of the document to be served, the document is only then deemed to have been delivered once it is actually received by the official recipient.

The plaintiff had sued the defendant for reimbursement of electricity costs. The district court had sentenced the defendant by default in the written preliminary proceedings as requested. The decision was then served on the defendant on 07 October 2021 and had been placed in the defendant’s letterbox. The certificate of service in the court file contains a note stating that the delivery date had been written on the envelope of the document to be served. The defendant filed an objection against the default judgment, which was received by the district court on 22 October 2021. The district court then notified the defendant that he had not complied with the two-week time limit for lodging an objection upon which the defendant asserted that he had only taken the letter with the default judgment out of his letterbox on 8 October 2021 and that the date of delivery had not been written on the envelope.

Both the first and second instances rejected the defendant's objection as unsubstantiated. In their view, a missing note on the date of service written on the envelope cannot invalidate the notification. The wording of Section 180 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO) speaks against such delivery notes as a mandatory requirement. The note was merely intended to inform the recipient of the date of delivery.

The BGH did not share the view of the lower courts.

The current legal obligation of a deliverer to record the date of delivery on the envelope of a document to be served is not being given sufficient importance. The date of delivery must be considered a mandatory requirement for the service of documents. The BGH also emphasised that the burden of presentation and proof of acceptance of a document lies with the defendant.

BGH, VIII ZR 99/22 (15.03.2023)