Access

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Access is a legal term that describes the legal validity of declarations of intent that require receipt .

General

Participating in declarations of intent are the explanatory sender and the Declaration sustaining receiver . A declaration of intent by the sender must not be confused with the fact that it becomes effective. A strictly unilateral declaration of intent, such as the will, is already effective upon completion of its requirements (in this case the handwritten signature of the testator ) ( Section 2247 BGB ) because there is no recipient of the declaration . If, on the other hand, declarations of intent are to be given to other legal entities (declarations of intent requiring receipt), they must also be sent to the correct recipient in order to be effective. A declaration of intent has been received as soon as it comes into the recipient's sphere of influence in such a way that assuming normal circumstances it is to be expected that he will be able to gain knowledge of it .

This may involve transmission risks. Because the declaring sender bears the risk of a faulty or failed transmission up to the successful delivery within the control of the recipient ("reception theory"), the sender bears the risk of loss and delay. The recipient bears the risk that he takes note of the declaration as it was received. The recipient has to bear the risks of his spatial sphere of influence. If these result in the recipient either being late (e.g. due to illness or vacation) or not taking notice of the content of the declaration of intent, these are to be attributed to the recipient if the declaration has come into his area of ​​jurisdiction.

Legal issues

Declarations of intent that require access and require receipt include in particular the offer ( Section 145 BGB) and its acceptance ( Section 147 BGB; exception: Section 151 BGB), the declaration of contestation ( Section 143 BGB), granting of power of attorney ( Section 167 (1) BGB), declaration of consent ( Section 182 (1) BGB), withdrawal ( § 349 BGB) and offsetting ( § 388 BGB).

Access among those present or absent

The law distinguishes between declarations of intent among those present and those who are absent :

  • In the case of access among those present (also during a telephone call or other technical means of communication ; Section 147 (1) sentence 2 BGB), the recipient is present when the declaration of intent is submitted. He must perceive and understand this declaration of will . This is not the case with deaf people or those with no language knowledge; there is no separation between acoustic perception and linguistic-intellectual understanding ("interrogation theory"). A document with a declaration of intent must be submitted .
  • A declaration of intent among those absent becomes effective at the time it is received ( Section 130 (1) BGB); it is also referred to as a “declaration of intent that needs to be received by a public authority ” ( Section 130 (3) BGB). This includes, for example, the succession according to § 1945 Abs. 1 BGB, which must reach the competent authority. Access by an incompetent authority does not lead to effectiveness and does not meet the deadline. Neither the mere utterance or sending by the declaring nor the acknowledgment by the recipient lead to the legal validity of a declaration of intent. Rather, their access is important. A declaration of intent is deemed to have been received if it has reached the recipient's sphere of control. The mailbox already belongs to the sphere of control ; the mail thrown into it is deemed to have been received. If the mailbox is not emptied due to a vacation, for example, the letter is still deemed to have been received, even if the sender knew that the recipient was absent from vacation.

Only access among those who are absent is adequately regulated by law; access among those present results predominantly from case law .

Access rules

Anyone who takes part in legal transactions by letter , fax , email or SMS must ensure that they are ready to receive and that their inbox is checked regularly . Anyone who can expect access to legally relevant declarations due to existing or pending business relationships must take suitable precautions to ensure that such declarations reach them. A letter arrives in the power range of the receiver when he or his reception messenger , deposited in his mailbox or into the maintained by the receiver passed mailbox was sorted. A fax comes under the control of the recipient if it was saved by the receiving device, an email or SMS if it was saved in the recipient's inbox on the server of his provider .

A letter that is posted in a mailbox attached to the home or business is deemed to have been received if, according to the public opinion, the mailbox will be emptied. According to this rule, a letter posted in the mailbox at 8:00 a.m. on a working day is deemed to have been received on the same day if the mailbox belongs to a business premises or a company . Letters posted by 6:00 p.m. will also be sent to private recipients on the same day. Letters posted in the evening or at night will not be received until the next working day. If a document is only thrown into the mailbox of an office on the afternoon of December 31, in which, as is customary in the industry, no work is done on New Year's Eve - even if this day falls on a working day - it will not be sent until the next working day. A fax that arrives at a bank on Saturday afternoon will not be received until Monday morning, but if the deadline falls on Saturday, it will still be delivered on time, since according to Section 193 BGB the next working day takes the place of a Saturday, Sunday or a state recognized general holiday occurs. A letter has also been received if it is given to the recipient or one of his relatives or domestic workers in the apartment. Once the declaration has been received, the recipient - even if he does not take note of the content of the declaration - must allow himself to be treated as if he had become aware of the content. The judgment was based on the embezzlement of a letter by an employee authorized to receive it , which despite the embezzlement is considered to have reached the correct recipient.

However, access is only complete when it is possible for the recipient to take note of it and can be expected based on the public opinion. For this reason, the point in time at which the recipient was able to gain knowledge of the content of the declaration of intent according to the customary view of the general public should also be used for transmission by fax. According to this judgment, it is sufficient that the declaration of intent has reached the recipient's area in such a way that it can usually - not by chance - be perceived immediately. In addition, according to the BGH, the objective possibility of gaining knowledge is to be understood in an abstract sense and therefore the recipient does not need to actually take note of it in order to receive a notice of termination . The time at which it is received is decisive for the effectiveness of the declaration, not when it is acknowledged. Only in those cases in which the law expressly requires knowledge ( e.g. Section 407 (1) of the German Civil Code) is it not sufficient to simply access the information.

The same system applies to access to electronically transmitted declarations of intent.

Access fiction

An access fiction is a clause with which the declaring party determines to the recipient that his declaration is deemed to have been received by the recipient. Such access fictions are ineffective ( § 308 No. 6 BGB).

Legal consequences

The distribution of the transmission risks is important for dealing with any access barriers that arise. As access obstacles there are delayed access or access obstruction. When canceling consumer contracts , the timely dispatch of the cancellation ( § 355 Paragraph 1 BGB) is sufficient to meet the deadline of the 14-day cancellation period , the late receipt by the entrepreneur does not matter. The declaring party bears the transport risk in the case of declarations subject to a deadline , unless the recipient deliberately prevents access (e.g. if he renders the mailbox unusable). If the recipient refuses to accept the declaration, for example because of additional postage , the declaration has not been received. In the case of an unjustified refusal, however, access is to be assumed because there was an opportunity to gain knowledge. However, the declaring party has to make up for the failed access to which the recipient is to be charged. Receipt of a notification form does not replace receipt of the registered letter . A recipient who is on vacation without leaving his vacation address or having sent a forwarding order cannot invoke late receipt, even if the declaring party (here the termination of an employment relationship ) was aware of the vacation absence.

A distinction must be made between negligent and intentional access denial. A negligent obstruction of access exists, for example, if someone moves without informing his employer or another important contracting party of his new address. A delivery made at a later point in time is treated as if the document had already reached the recipient during the first attempt at delivery. However, it is the sender's responsibility to initiate a second delivery attempt. If the recipient intentionally tries ( deliberately preventing access ) to prevent the delivery of the document, the delivery of the document will be faked; An exception is, for example, incorrect addressing of the document. Access obstruction is only assumed if a message about the deposit of a document at the post office has reached the recipient, which contains a reference to the content of the shipment.

If the recipient is incapable of doing business ( Section 104 BGB) or is subject to the reservation of consent ( Section 1903 BGB), access according to Section 131 BGB has not taken place before the legal representative of the person concerned (parents, guardians , carers , carers ) receives the declaration of intent . Exceptions apply to minors over 7 years of age and to persons subject to the reservation of consent: Here, access to the person concerned applies even in cases where either the declaration only results in a legal advantage (e.g. a donation ) or if the legal representative has already previously consented to the receipt of the declaration of intent ( Section 131 BGB).

In accordance with Section 132 (1) BGB, receipt of a declaration of intent can be replaced with delivery by a bailiff . A service that is not carried out through the mediation of a bailiff, on the other hand, has no access effect. Therefore, this service cannot be made either by filing with the local court or by post ( Section 181 (1) ZPO ) or by public service ( Section 185 ZPO).

In case of doubt, access must be proven by the sender.

Individual evidence

  1. ↑ Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 1579
  2. ↑ BGHZ 67, 271 , 275
  3. ^ Peter Gottwald, Examens-Repetitorium BGB - General Part , 2008, p. 35
  4. ↑ BGH NJW 2004, 1320
  5. ↑ BAGE, 34, 260
  6. ↑ Joachim Knoche, BGB basic structures , 2004, p. 19
  7. ↑ BGH, judgment of October 27, 1982 - V ZR 24/82 = NJW 1983, 929 , 930
  8. ↑ Achim Bönninghaus, BGB General Part I , 2014, p. 64
  9. ↑ Kurt Herbert Johannsen / Gerda Krüger-Nielandt, Das Bürgerliche Gesetzbuch , Volume I, 1982, p. 267
  10. ↑ Otto Palandt / Jürgen Ellenberger, BGB Commentary , 73rd edition, 2014, § 130 Rn. 6th
  11. ^ BGH, judgment of December 5, 2007, Az .: XII ZR 148/05
  12. ↑ RGZ 60, 336
  13. ↑ BGHZ 20, 149 , 152
  14. ↑ BGH NJW 2004, 1320
  15. ↑ Thorsten Vehslage: Electronically transmitted declarations of intent . In: Deutscher Anwaltverein (Ed.): Lawyers' Journal . 2002, p. 86-88 .
  16. ^ Peter Gottwald, Examens-Repetitorium BGB - General Part , 2008, p. 35
  17. ↑ BGHZ 137, 205 , 208 ff.
  18. ↑ BGHZ 67, 271 , 275
  19. ^ BAG DB 1965, 747
  20. ↑ OLG Cologne, decision of January 21, 2008, Az .: 6 W 182/07
  21. ↑ OLG Stuttgart, decision of March 31, 2010, Az .: 5 W 62/09
  22. ↑ BGHZ 67, 271, 282