Access prevention

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Access obstruction is a legal term in German jurisprudence that is used to describe cases in which a declaration of intent requiring receipt was not received or not received in time due to circumstances in the area of ​​the addressee. One speaks more neutrally of access disorder . In the case of access disruption, the question arises whether, when and under what conditions, despite the objective lack of access, a declaration of intent is deemed to have been received (i.e. access is fictitious ).

The first question to be asked is whether there is even a case of access denial. For the further question of whether the declaring person has to make up access after a failed access attempt, according to BGH case law, the decisive factor is whether there was intentional or negligent access obstruction.

In the starting point, the receipt of a declaration of intent is fictitious if the recipient had to reckon with a declaration of intent, but access fails for reasons within the recipient's sphere and the declaring person does everything necessary and reasonable to achieve access, or, in exceptional cases, a renewed attempt at access in is not necessary in cases of refusal of acceptance or fraudulent access denial.

Access disorder in the recipient's sphere

If the access disruption is based on circumstances for which the recipient is not responsible, access is not to be faked at his own expense.

  • The declaring person sends a letter by simple mail. The recipient denies access. As it cannot be ruled out that the respective postal company has lost the letter and that this is at the expense of the declaring party, the declaring party cannot usually prove receipt.
  • If a letter cannot be delivered because it has been incorrectly addressed, that is the responsibility of the person making the declaration and not of the recipient. There is no access obstruction (OLG Cologne, decision of January 21, 2008, Az .: 6 W 182/07).
  • In the case of a registered letter with acknowledgment of receipt, it can only be assumed that access has been frustrated in breach of trust if the addressee has first received a notification that the document has been deposited at the post office and, secondly, if the notification contains a notice corresponding to Art. 14 (1) d) EuVTVO on the content of the consignment stored at the post office (OLG Cologne, decision of January 21, 2008, Az .: 6 W 182/07). As a result, contrary to popular belief, registered mail with acknowledgment of receipt is a very risky form of delivery - in contrast to post- registered mail : the recipient only needs to deny that he has received a notification slip. The person making the declaration has to prove this, which he is usually not able to do.
  • In the event of access delay / obstruction, the "earliest possible pick-up date" (possibly on the same day in the afternoon), but rather the time of the "possible and reasonable pick-up", i.e. usually the next working day, should be taken into account. In any case, for the beginning of the period for filing legal action under Section 4 of the Consumer Protection Act, the point in time at which the notice of termination was actually received must be taken into account if the employee does not collect a registered letter immediately but within the retention period.
  • In the company of his employer, the employee is obliged to receive declarations of intent from the employer. If the employer tries to hand over a notice of termination to the employee in the company, but if the employee refuses to accept a notice of termination held out to him, this means that access has been blocked in violation of trust.
  • Outside of (preliminary) contractual relationships, a person is not obliged to provide reception arrangements (e.g. a mailbox). It is different, however, if the addressee of a declaration of intent "has to reckon with the access of legally relevant declarations due to existing or pending contractual relationships, take suitable precautions so that such declarations reach him (...). If he does not do this, it will often be a violation of the due diligence obligations towards his partner, which is due to the start of contract negotiations or the conclusion of a contract ”.
  • If an employee has to expect a dismissal, he must inform the employer of his current address. The BAG left it open as to whether the employee must always provide the employer with a new address: the BAG considered it sufficient that the employee's new address emerged from the last certificate of incapacity for work.

Need to try again

In principle, a new delivery attempt is required. Only in the case of refusal of acceptance and fraudulent access denial (deliberate access denial) does not require a new delivery attempt:

Another question [than the question of whether the access disruption is in the sphere of the addressee] is, however, whether this breach of due diligence within the contractual or pre-contractual relationship is so serious that it is justified to treat the addressee in good faith as the declaration of intent that had not been received as a result of his breach of due diligence reached him. The case law also focuses on the behavior of the person making the declaration. In accordance with the principles of good faith, he can only derive favorable legal consequences from his non-received declaration of intent if he has done everything necessary and reasonable for his declaration to reach the addressee. As a rule, this includes that after becoming aware of the failure to access the information, he immediately makes another attempt to bring his declaration into the sphere of influence of the recipient in such a way that the recipient can easily take note of its content. This follows from the fact that a declaration of intent that requires receipt only triggers legal consequences once it has been received. Which type of this renewed attempt by the declaring person must be depends on the specific circumstances such as the local conditions, the previous behavior of the addressee, the possibilities of the declaring person and also on the meaning of the declaration made and cannot generally be decided.

Something else applies (only) in the special cases of refusal to accept and fraudulent access denial: A repeated attempt at delivery by the declaring party is no longer useful and therefore dispensable if the recipient refuses to accept a written message addressed to him for no reason, although he has with the Receipt of legally relevant notifications from his contractual or negotiating partner must be expected (BGH, judgment of October 27, 1982 - V ZR 24/82 = NJW 1983, 929, 930 f). The same will apply if the addressee fraudulently prevents access to the declaration.

Example: The employee refuses to accept the dismissal at the workplace: the dismissal is deemed to have been received with this act of refusal (the three-week period of § 7 KSchG runs). A new delivery attempt is not necessary (although it is useful if the employee's refusal cannot be proven with certainty).

Practical consequences

In order to avoid disputes about the access to a declaration of intent, the involvement of a messenger or accompanying witness can be helpful. If the recipient is not found, the document can be thrown in the mailbox. To be on the safe side, this process should be logged. In practice, registered mail is helpful: it is thrown into the mailbox like a normal letter, but in the event of a dispute, access can be proven using the delivery scan in conjunction with the delivery person's certificate (ideally). The law provides the form of service by the bailiff in accordance with Section 132 (1) BGB.

Web links

Individual evidence

  1. ↑ So previous processing. More likely: a topos .
  2. ↑ a b OLG Cologne, decision of January 21, 2008, Az. 6 W 182/07
  3. ↑ Herbert, NJW 1997, 1829 (1830)
  4. ↑ BAG, judgment of April 25, 1996 - 2 AZR 13/95 - juris Rn. 21 = BAGE 83, 73
  5. ↑ BAG of March 26, 2015 - 2 AZR 483/14 - Rn. 25 f. = NZA 2015, 1183 = EzA § 130 BGB 2002 No. 7 = AP No. 27 to § 130 BGB
  6. ↑ BGH, judgment of November 26th, 1997 - VIII ZR 22/97 BGH, judgment of November 26th, 1997 , Az. VIII ZR 22/97
  7. ↑ BAG, judgment of March 4, 1965 - 2 AZR 261/64 - juris Rn. 32
  8. ↑ BAG of February 18, 1977 - 2 AZR 770/75 - juris Rn. 26 = AP No. 10 to § 130 BGB - EzA § 130 BGB No. 8
  9. ↑ RGZ 110, 34, 37; BGH, judgment of June 13, 1952 - I ZR 158/51 = LM BGB § 130 No. 1; BGH, judgment of December 18, 1970; BAG, judgment of April 3, 1986 under II 4 e)
  10. ↑ BAG [March 26, 2015] - 2 AZR 483/14 - Rn. 17 = NZA 2015, 1183 = EzA § 130 BGB 2002 No. 7 = AP No. 27 to § 130 BGB
  11. ↑ BAG [March 26, 2015] - 2 AZR 483/14 - Rn. 19 = NZA 2015, 1183 = EzA § 130 BGB 2002 No. 7 = AP No. 27 to § 130 BGB
  12. ↑ BAG [March 26, 2015] - 2 AZR 483/14 - Rn. 18 = NZA 2015, 1183 = EzA § 130 BGB 2002 No. 7 = AP No. 27 to § 130 BGB