BGH ruling confirms: Do not use quarantine folders
Has this happenend to you? You create an account with an online service or subscribe to a newsletter, but the confirmation email just doesn’t arrive? For many people, looking in the spam folder has already become routine – and in many cases, that’s exactly where you’ll find the email you’re looking for. It can become problematic if one neglects to look in the spam or quarantine folder and the email is an invoice or another legally binding document with a deadline. A ruling by the Federal Court of Justice of October 6, 2022 clearly shows why spam and quarantine folders are not a good idea and what dangers they can pose.
The actual retrieval of the email is not decisive
On October 6, 2022 (Case No. VII ZR 895/21), the Bunesgerichtshof (BGH) issued a ruling that clarifies when an email is deemed to have been delivered in business transactions. The BGH ruled that emails that are made available for retrieval on the recipient’s mail server during normal business hours are generally considered delivered to the recipient at that time. Of course, this also includes spam and quarantine folders. According to the BGH, it is not a question of actually retrieving the email or taking note of it. Consequently, emails that are forgotten or not found in said folders are legally considered to have been delivered.
The current case
The subject of the above-mentioned proceedings was the question of when an offer by the plaintiff party to conclude a settlement was validly received by email. In the case at hand, the plaintiff sent another email about 45 minutes after the first settlement offer; in this email it was pointed out that the previous offer had to be disregarded. This was later followed by another offer with a higher claim. However, one week later, the defendant paid the settlement amount originally offered – despite the claimant’s increased claim in the meantime. The claim for payment of the difference was dismissed.
Quarantine is also within the sphere of influence of the recipient
The BGH reasoned its decision as follows: The mail server used by the recipient to receive email messages is to be regarded as his sphere of power, since
- it can receive declarations of intent in electronic form and
- the recipient has expressed his intention to conclude legal transactions by means of electronic declarations in the form of emails by publishing the email address or other declarations in the course of business.
The electronic declaration of intent in the form of the email with the first settlement offer was saved as a file and forwarded from the sender’s mail server to the recipient’s mail server. The recipient was informed of the receipt of the e-mail and was able to retrieve the email message and display it on his terminal device at that time. The receipt of the email was therefore to be assumed – regardless of whether the email was in the regular inbox or in the spam or quarantine folder.
The revocation of the first settlement offer could not be effectively revoked pursuant to section 130 (1) sentence 2 BGB and the payment within one week constituted an implied acceptance. An implied acceptance is an acceptance (or also an action) that is made by conclusive conduct – i.e. without an express declaration.
Similar case in Austria
The fact that emails in the spam folder can have legal effect is also shown by a case from Austria: In a recent decision (3 Ob 224/18i), the Austrian Supreme Court (OGH) stated that the spam folder must be checked and legally relevant documents are deemed to have been received even if they end up in the spam folder.
Spam and quarantine folders are a risk
Since the sender has no control over whether or which spam protection the recipient is using, it is the sender’s sole responsibility to check the spam and quarantine folders. If the sender does not do this sufficiently, unpleasant consequences may result.
Spam protection without quarantine with NoSpamProxy
Fend off instead of sort – that has always been the guiding principle behind NoSpamProxy, because NoSpamProxy does not use spam and quarantine folders. Unlike other solutions, NoSpamProxy fends off spam emails so that these emails are not accepted in the first place. In other words, these emails do not enter the recipient’s sphere of influence and cannot develop their legal effect.
If a trustworthy email is not accepted, NoSpamProxy ensures that the sender is informed about the prevented delivery. This makes NoSpamProxy one of the few products on the market that offer full compliance with the demanding German law (especially according to §206 StGB, §88 Telekommunikationsgesetz).
Since blocked emails are not considered delivered, NoSpamProxy allows you to avoid the possible legal consequences that can arise for companies and private individuals from the sole delivery of an email.
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