Issue – A withdrawn settlement offer
In view of an invoice dispute, a company submitted a settlement offer to its client via e-mail at 9:19. Some minutes later, the author of this e-mail regretted submitting the offer and withdrew it via an e-mail at 9:56. A week later, the client paid the settlement amount and refused to pay any further amount that had been claimed.
BGH ruling – Effectiveness of the initial offer
The BGH, in its judgement of 5.9.2022 (case reference: VII TR 895/21), ruled in favour of the client. This was because at 9:19, when the e-mail was received on the recipient’s server, the settlement offer was deemed to have been received; thereafter, a declaration of intent cannot be revoked anymore. By paying the settlement amount without comment, a week later, the customer had implicitly, promptly and effectively accepted the settlement offer. The settlement had thus been reached. Therefore, the company making the claim had waived the additional amount.
The BAG thus ruled on a question that, up to now, had not been clarified by the supreme court, namely: when is an e-mail deemed to have been received by the recipient? According to the ruling, an e-mail would in any case generally be deemed to have been received when, in the course of commercial dealings and during normal business hours, it is made available for retrieval on the recipient’s mail server that is used for correspondence. Thus, it does not matter when the e-mail is read. The situation would be different if the e-mail was received during off-hours or outside of normal business hours. Then – it could thus be concluded – the e-mail would not be received until the next business day. If, in the case in question, the writer had sent out the settlement offer in the middle of the night and then, early in the morning, had immediately revoked it then it still would have been possible to effectively withdraw the e-mail or the settlement offer within a few minutes.
Even if it is still basically possible to withdraw an e-mail there remains a risk because the sender would have to demonstrate if and when the e-mails were actually received on the recipient’s server. This played no role in the case in question, as the recipient made particular reference to the receipt of the e-mail on his server at a specific time and the sender referred to the e-mail he had sent shortly before.
An interesting side question arises for declarations that are not included in the e-mail itself but, instead, in the attachment, for example as a PDF, for that purpose. The Hamm court of appeals, in its decision of 9.3.2022 (case reference: 4 W 119/20) in a competition case, took the view that the arrival of an e-mail from a hitherto unknown sender without a clear subject line and without a meaningful description of the attachment would anyway not be construed as receipt. In view of the fact that, generally, we are warned not to open attachments in e-mails from unknown senders because of the risk of viruses, therefore, the recipient could not have been expected to open the file attachment. This sounds plausible and should be a reason, in critical cases, to include the message directly (where appropriate, additionally) in the main text section of the e-mail programme.
Recommendation: In order to be able to provide proof of delivery for important matters when deadlines are tight, the means of choice remains traditional registered mail, or at least the electronic read receipt (this can however be switched off by the recipient).