25.03.2019
An email is – as a rule – accessible to the recipient at the time it is received and saved in their email box and can be displayed on the screen or printed out. In other words: as soon as the recipient can access it (OGH 2 Ob 108/07g).
In a recent decision (OGH 3 Ob 224/18i), the OGH ruled that emails that automatically end up in the addressee's spam folder are also validly received under certain conditions and can therefore have legal effects. A real estate agent had sent the broker's offer (including instructions on how to withdraw) to the email address provided by the prospective buyer. However, her offer ended up in the spam folder. At the viewing appointment, the agent informed the prospective buyer that the offer had been sent by email. The defendant then withdrew from the brokerage contract, whereupon the real estate agent filed a lawsuit (for payment of the broker's fee of €7,560) on the grounds that the withdrawal had not been made on time because the offer had already been delivered.
According to Section 12 Sentence 1 ECG, legal electronic declarations and electronic confirmations of receipt are deemed to have been received if the party for whom they are intended can access them under "normal circumstances". However, according to the legislative materials (ErläutRV 817 BlgNR 21. GP), an electronic declaration is not deemed to have been received simply because it can actually be accessed. In general, however, it is sufficient if a declaration of intent has reached the "sphere of influence" of the addressee, even if the addressee has not received it personally. It is therefore sufficient that the addressee had the opportunity to take note of the declaration (OGH 7 Ob 6/77; 7 Ob 63/78; 7 Ob 26/79; 3 Ob 586/89).
The court of first instance dismissed the action, and the appeal court ruled in favor of the plaintiff. The Supreme Court upheld the view of the appeal court - following the defendant's appeal - and considered that in this specific case the email that landed in the spam folder had been received legally. In the opinion of the Supreme Court, a transmitted electronic declaration of intent should be considered to have come into the recipient's sphere of influence if the recipient has clearly indicated in advance that he or she can be reached by email. A recipient who indicates to the sender in advance that he or she can be reached by email must therefore also check the spam folder regularly. This is particularly necessary if the recipient knows of a future declaration of intent that is to be made via email. In the present case, failure to observe this circumstance probably cost the consumer far more than €10,000, including the legal costs - an easily avoidable loss.