Emails in Business Transactions: When Is an Email Actually Considered Delivered?

In a recently published decision, the Federal Court of Justice (BGH) addressed the question of when an email is deemed to have been received in commercial legal transactions. The decision (BGH, judgment of Oct. 6, 2022 – VII ZR 895/21) is of great practical significance, as email is a common form of communication in legal transactions and the time of its receipt is decisive for the validity of declarations of intent and the observance of deadlines.

Pursuant to Section 130(1) of the German Civil Code (BGB), a declaration of intent intended for another party becomes effective upon its receipt by that party. The German Civil Code distinguishes between embodied and non-embodied declarations of intent. A non-material, i.e., oral declaration of intent is deemed to have been made and received when the declarant utters the words in the direction of the recipient so that the latter can hear them. This also applies to declarations made by telephone. A material declaration of intent, on the other hand, is deemed to have been received when it has entered the recipient’s sphere of influence and, under normal circumstances, it can be expected that the recipient will take note of it. The recipient’s sphere includes, for example, their mailbox, a post office box at a company, an email inbox, a fax machine, or a telephone voicemail.
In the aforementioned ruling, the Federal Court of Justice (BGH) addressed a specific case concerning the question of the time of receipt of an email in commercial legal transactions. It was determined that an email is deemed received by the recipient when it has arrived in their electronic mailbox and is ready to be retrieved. The recipient’s actual awareness of the email is not relevant to its receipt. The BGH bases this on the assumption that, during the recipient’s normal business or office hours, the email is expected to be noticed immediately upon receipt. The time of receipt is thus the moment the email arrives in the recipient’s inbox. The email is not deemed received only at the end of the respective day. Once an email has been sent, there is no turning back.

The BGH’s decision has implications for business operations, as companies are now required to check their messages regularly so as not to miss receipt. In addition, they should ensure that important emails do not end up in the spam filter and are deleted before they are read. Similar expectations regarding the receipt of emails may also apply to private individuals, although there is no supreme court ruling on this matter yet.