Federal Court of Justice: date must be noted on postal delivery

June 19, 2023 /

According to the statutory provisions, the mail carrier is obliged to note the date of delivery on the envelope of a delivered letter if delivery is made by posting it in the letterbox. As confirmed by the Federal Court of Justice (BGH), this requirement is intended to ensure that service is only deemed to have been effected when the recipient has actually received the letter. In the event of an allegation of earlier receipt, the burden of proof lies with the party making this allegation. A simple denial of later receipt is not sufficient.

The case

In the case in question, the plaintiff sued the defendant for reimbursement of electricity costs. The Gardelegen Local Court (AG) had ordered the defendant to pay in the written preliminary proceedings by default judgment. This judgment was served on October 7, 2021 by depositing it in the defendant’s mailbox. It is noted in the court files that the date of service was recorded by the deliverer on the envelope of the judgment. However, the defendant filed an objection to the default judgment on October 22, 2021, claiming that he had only taken the letter out of the letterbox on October 8, 2021, as there was no delivery date on the envelope.

Decision of the lower court

Both the Gardelegen District Court and the Stendal Regional Court ruled that the objection was inadmissible. They interpreted that the absence of a date of service on the envelope does not affect the validity of the service, as the statutory provision in Section 180 ZPO does not explicitly provide for such a note as a mandatory condition for valid service. Both courts took the view that the note merely serves to inform the recipient of the date of service and that the invalidity of the service in the event of violations of Section 180 para. 3 ZPO is not necessary for the protection of the addressee, as the addressee could be granted reinstatement.

The decision of the BGH

On the other hand, the Federal Court of Justice found in the appeal instance that the Regional Court had misinterpreted by assuming that the default judgment deposited in the defendant’s mailbox pursuant to Section 180 para. 2 ZPO was deemed to have been served upon filing, irrespective of whether the date of service was actually noted on the envelope. The BGH confirmed the mandatory obligation of the deliverer to note the delivery date on the envelope of the document to be delivered and stated that this obligation was not adequately taken into account by the Regional Court. The Regional Court must therefore clarify whether the note on service was actually affixed or not.

Sources:
Date note as a mandatory requirement for service (rsw.beck.de; last accessed on 16.06.2023)
Date note is a mandatory requirement for service (brak.de; last accessed on 19.06.2023)

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Adobe Stock 113989090 by Kzenon

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