Legal Comparison AT/GER: Receipt of E-Mails in Business Transactions

Nov 25, 2022 Benn-Ibler Rechtsanwälte

The German Federal Supreme Court (Bundesgerichtshof, BGH) has now settled the question of when a B2B email is actually deemed to have been received. If an email is made available for retrieval on the recipient's mail server during normal business hours, it is generally deemed to have been received at that time. Actual retrieval is not required. This is also the opinion of the Austrian Supreme Court (Oberster Gerichtshof, OGH).

In principle, a declaration of intent made to an individual in their absence becomes effective at the time it is delivered to the individual. The receipt of a declaration of intent in absentia presupposes that such a declaration reaches the recipient in a manner that, under normal circumstances, the recipient has the opportunity to take cognisance of the content of the declaration.

The BGH has now had to decide when exactly that point in time lies concerning electronic declarations of intent made in the form of e-mails. Thus, emails are considered to be received once they are made available for retrieval on the recipient’s mail server during normal business hours. This is because an email will then have reached the recipient’s sphere of influence in such a way that the recipient, under normal circumstances, can become aware of the email. The fact that an email will effectively have to be retrieved is not a prerequisite for access. This shall apply in any case insofar as the willingness to accept electronic declarations of intent has been demonstrated by an individual’s declaration in business transactions to receive emails or by publicly disclosing one’s email address.

According to Austrian law, declarations of intent become effective once they have been received. A declaration of intent shall be deemed to have been received by an absent person at the moment the recipient takes note of it, but also prior to that when the declaration enters the recipient’s sphere of influence so that the recipient can take note of its content under normal circumstances. According to the Austrian Supreme Court, the same applies to emails. An email is considered received when it arrives in the recipient’s mailbox and is stored there and displayed on the screen or can be printed out.

The problem is, often, proving the receipt of an email. According to prevailing legal literature and the Austrian Supreme Court, prima facie evidence of the actual receipt of an email cannot be provided by means of a simple email transmission protocol. However, confirmation of delivery (i.e., proof that the email has reached the recipient’s server) is sufficient. A confirmation of receipt (i.e., a confirmation that the recipient has actually retrieved the email) is not necessary.

BGH, VII ZR 895/21 (6 October 2022)