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Perspectives
Productivity

Proof of receipt of an email

Case law on the burden of proof for email, fax, read receipts, and secure delivery methods, plus practical guidance for time-critical declarations.

Peter Poleacov 4 min

Proof of receipt of an email

Background

Declarations of intent and quasi-contractual notices that require receipt to take effect (for example notices of defects or warning letters) become effective under Section 130 BGB once they reach the other party.

The party relying on receipt bears the burden of proving it. The same allocation applies to the point in time, i.e. the timeliness of receipt.

There are competing views on the burden of pleading and proof for the receipt of an email.

  • One view holds that the sender of an email benefits from a prima facie presumption that the email reached the recipient, unless a bounce-back is returned. This applies even where the message may have ended up in a spam filter. An email is deemed received when it is retrievably stored on the server of the recipient or the recipient's provider (AG Frankfurt a.M., judgment of 23 October 2008 – 30 C 730/08).

  • The other view holds that the sender must plead and prove receipt of the email under Section 130 BGB. The mere act of sending does not give rise to a prima facie case of receipt (LAG Berlin-Brandenburg, judgment of 24 August 2018 – 2 Sa 403/18). The same applies to a sending log (see MüKoBGB/Einsele, 9th ed. 2021, BGB Section 130 marginal no. 47).

Case law

The LAG Köln has now sided with the latter view (LAG Köln, judgment of 11 January 2022 – 4 Sa 315/21). The mere act of sending an email does not create a prima facie case of receipt by the recipient. It is uncertain whether an email actually reaches the recipient's server after being sent. As with ordinary postal mail, the message may technically fail to arrive. That risk cannot be shifted to the recipient. The sender chooses the channel of transmission and therefore bears the risk that the message does not arrive. To make sure an email has reached its addressee, the sender can request a read receipt through the options of the email client (see BGH, order of 17 July 2013 – I ZR 64/13).

Note

This line of case law is relevant well beyond employment relationships. It applies whenever the receipt of a declaration of intent has to be proven, for example:

  • Offer and acceptance

  • Declaration of set-off

  • Demand for supplementary performance

  • Termination

  • Withdrawal

  • Revocation

  • Price reduction

For a fax, the "OK" entry on the transmission report does not, under the still prevailing (although increasingly contested) view, give rise to a prima facie case of receipt; it is only an indication, because it merely shows that a connection between the sending and receiving devices was established. The transmission report says nothing about whether the data was actually transferred, or whether line faults or defects in the receiving device prevented transmission. The "OK" entry does, however, confirm that a connection was made to the number shown in the report. The recipient therefore bears a secondary burden of pleading: which device is operated at the receiving end, whether the connection is logged in the device's memory, whether and how the receiving journal is documented, and the recipient must produce the journal where required (see MüKoBGB/Einsele, 9th ed. 2021, BGB Section 130 marginal no. 47). You should not rely on this in a dispute, though.

Practice tips

In important cases, the declaration should go out first by email with a read-receipt request and then by registered mail or courier. For correspondence between attorneys, delivery via beA is the right channel.

Where attorneys want to alert their clients by email about an appeal deadline expiring on the same day and to prompt them to lodge the appeal, they must make sure the email is acknowledged by requesting a read receipt (see BGH, order of 18 November 2021 – I ZR 125/21).

Update

Where an email is made available for retrieval on the recipient's mail server during normal business hours in B2B traffic, it is in principle deemed received by the recipient at that point in time. Whether the email is actually retrieved and read by the recipient is not required for receipt (see BGH, judgment of 6 October 2022 – VII ZR 895/21).

Reference: Poleacov, P. (2025). Proof of receipt of an email. INN.LAW. https://inn.law/en/perspectives/access-email/