§§ 127 (pre-2001 version) and 130(1) BGB
a) When does a declaration of intention sent by Fax "arrive" ("zugehen"), if the addressee, who must receive it, is away on holiday?
b) What is the proper construction of a term in a lease that notice to determine it is to be sent by registered letter?
The dispute between the parties turns on the validity of the defendant's express notice to terminate a commercial lease.
By a lease in writing dated 23 March 1990 the defendant rented three warehouses from the claimant. ... §2(2) of the lease provided that notice to terminate it as from 30 June or 31 December in any year must be given at least a year in advance. The parties further agreed that notice be by registered letter. ...
On 22 June 1995 the defendant wrote a letter terminating the lease as from 30 June 1996 and sent it to the claimant by Fax on 29 June. He added that the original would follow by hand the next day, and it was indeed placed in the claimant's letter-box about 10 a.m. on 30 June 1995. By then the claimant and his wife had gone away on holiday. On 13 July 1995 the claimant wrote to the defendant stating that he had not received any proper notice of termination, and on 18 December 1995 he demanded rent from 1993 to 1995, alleged to be outstanding... In his letter of reply on 19 December 1995 the defendant , as a precaution, gave notice of termination as from 31 December 1996, and on 30 June 1996 he vacated the premises....
The claimant sued for, inter alia, rent for the second half of 1996 and obtained from the Oberlandesgeright an increase in the sum awarded by the Landgericht, the court declaring that the lease had not been terminated until 31 December 1996, as per the defendant's notice of 19 December 1995.
The defendant's appeal succeeded:
1. The court below was correct to hold that the validity of the notice of termination did not depend on how it was communicated. §2(4) of the lease, which provided that notice must be in writing, and added that it be communicated by registered letter, made writing essential to the validity of the notice (§125(2) BGB) but it was only in order to ensure that the notice arrived that mention was made of registered letter. Notice of termination must normally be in writing to be valid, but its arrival need not be by registered letter. [references] The requirement of writing is met, as in this case, when a declaration of intention is sent by Fax.
2. The appellant is right to challenge the view of the court below that the Fax containing the defendant's declaration of intention to terminate the lease did not arrive on 29 June 1995.a) A declaration of intention addressed to a person not present is effective when it "arrives", and it arrives when it enters the addressee's zone of control, such that in normal circumstances he would be in a position to apprise himself of its contents. In principle declarations sent by teleprinter or Fax arrive when they are printed out by the addressee's printer, but arrival is never complete until the addressee is, or can in normal circumstances be expected to be, able to take note of it. Thus even in the case of a Fax message, the relevant time is when in accordance with normal practices the addressee could make himself aware of the contents.
b) On the findings of the court below the Fax message was printed out on the claimant's printer at 10.39 a.m. on 29 June 1995. The time of arrival is unaffected by the fact that at that moment the claimant was away on holiday. Contrary to the view of the court below, ability to apprise oneself of the message is to be understood objectively and in the abstract: it is not necessary that the recipient be actually aware of it. It is enough if the declaration of intention has entered the addressee's area of control so that in normal and unexceptional circumstances he could learn of it. To that extent the addressee is responsible for what happens in the area under his control. If he learns of a message which has entered his area of control only later or not at all, that is his problem. A declaration of intention may have "arrived" although the recipient is prevented from actually learning of its content whether by illness or, as in this case, by being away on holiday. It is for the recipient in such cases to take proper precautions, and if he fails to do so, arrival will not be prevented by such purely personal circumstances.
c) The respondent argues that the Fax message was merely an intimation that notice of termination was to follow. This is an error. It is clear from the note attached to the declaration of termination that the telefax itself constituted such a declaration. By sending the original as a follow-up the defendant was seeking to allay the notorious unreliability of telecommunications: whereas the Fax was sent in order to meet the time limit for the notice of termination the delivery of the original with its attendant receipt form was simply for purposes of evidence.
3. It is therefore not relevant whether the letter was placed in the claimant's mail-box in good time or not. Here the claimant had made a private arrangement with the postal authorities for his mail to be delivered between 8.30 and 9 a.m., but despite the contrary view of the court below such a private arrangement cannot affect the decision whether or not the letter arrived. According to the evidence, the letter was placed in the claimant's mail-box at about 10 a.m. on 30 June 1995, and if people generally would expect that at that time the mail-box was yet to be cleared, that is the day on which it arrived. A declaration placed in the addressee's mail-box after what people would expect to be the last collection is held not to have arrived, but whether that time has arrived or not depends not on the personal arrangements of the recipient, but rather, in the interests of legal certainty, on normal practice and expectation. According to the postal authorities, mail is generally delivered between 8.30 and 10.30 a.m. in the street where the claimant lives, so that objectively speaking one could expect that at 10 a.m. the mail-box was yet to be cleared.
The case must therefore be remanded to the court below for further proceedings and judgment.
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