Thu, Apr. 28, 2011

Notice by Email: Deemed Receipt

CK - Washington.   Small court, big issue: When does a notice sent by email arrive? When it's sent? At the time the addressee's email client pulls it from the server? When the recipient notices it? Within a certain number of hours or days after mailing?

What if the addressee is occupied with other matters? Visits the restroom? Lies in the hospital? Or enjoys a vacation?

A German court decided the issue for the following set of facts: After business hours, a customer ordered travel arrangements from a travel agency, then booked the arrangements online and sent an email to the agency to cancel the initial order. The next morning, the travel agent arrived at the office before its usual business hours, noticed the order, fulfilled it, and noticed the email only after her return from a conference. The customer ended up with two travel arrangements and sued the agent for the resulting cancellation fee.

Click here for the decision, in German.

The Meldorf court of first instance held on March 29, 2011 in the matter 81 C 1601/10:
1) The notice was not received before the next business day.

2) The agent is free to schedule her day, as a matter of constitutional law. Nothing requires her, therefore, to give priority to reading emails first thing in the morning.

3) The exact time of when the emailed notice is deemed received cannot be determined by the law alone.

4) In this situation, some time during the next business day would be appropriate to deem the email to have been received. The exact time does not matter with these facts.
As a result, the agent's decision to attend to the order immediately and read emails later is legally so appropriate that her sequencing of activities cannot be held against her. She did not breach a contractual or other duty and is not liable to the customer for the cancellation fee incurred because of the duplicated order.

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