OGH on the equivalence of fax and e-mail when requesting a guarantee

Oct 13, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (Oberster Gerichtshof, OGH) commented on whether a declaration by e-mail is equivalent to a declaration received by fax when requesting a guarantee.

In the case at hand, the defendant undertook to provide the plaintiff with security for a liability remission by means of a guarantee declaration dated March 30, 2016. In order to make use of the guarantee, an original declaration of this kind must be received by the defendant.

The guarantee expired on February 17, 2019. In the event that the expiry date does not fall on a bank working day, the period ends on the preceding bank working day. In this case, the claim by fax before the expiry of the term should be sufficient if the original document is received by the defendant within a further three bank working days.

February 17, 2019 was a Sunday. On the afternoon of February 14, 2019, the defendant received an email from the plaintiff with the signed notice of claim as a PDF attachment. The original was received on the following Monday. 

The plaintiff now sought payment because the transmission by email was technically equivalent to a transmission by fax. The defendant contested the claim and insisted on the exact wording of the guarantee contract.

The Supreme Court - in contrast to the Court of Appeal - did not agree with the plaintiff:

First of all, it clarified that the declaration of the claim must in principle strictly comply with the agreed form. A deviation from this is permissible if the purpose of the chosen form is preserved. 

In the case at hand, however, this was not the case. It is true that the purpose of both e-mail and fax is to enable a flexible retrieval of the guarantee. However, fax transmission also aims at a secure communication between the parties, because primarily the sender's device is easier to identify and because faxes - in contrast to e-mails - are not sorted out by a spam filter and thus cannot be overlooked.

E-mail and fax are therefore not equivalent.

OGH 8 Ob 109/20t (14.09.2021)