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Case:
BGHZ 67, 271 VIII. Civil Senate (VIII ZR 140/75)
Date:
03 November 1976
Note:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mr Tony Weir
Copyright:
Professor B.S. Markesinis

The suit concerns a piece of land in the city of M which is owned by the city itself, the third party. On 24 March 1972 the city leased two buildings on this land to the plaintiff H.O. who, like his co-plaintiff, is a waste paper merchant. The lease contained the following terms: 'para. 8(2) Subletting or otherwise licensing the property to third parties is forbidden save with the written consent of the lessor. Any consent may be withdrawn by the lessor at any time. (3) Should the property be sublet or licensed to a third party without consent, the lessor may require the lessee to remove the third party from the premises within one month. If the lessee fails to do so, the lessor may determine this lease without notice.'

The plaintiffs subleased the buildings to the defendant. On 12 June 1972 the plaintiff H.O. wrote to the third party to inform it of the sublease and request consent. The third party replied in writing on 15 June to the effect that although it had reservations about such subleases, it was prepared to grant consent, revocable at any time. On 27 June there was a meeting between the plaintiff H.O. and the appropriate officer in the third party's property office. On 10 July the plaintiff H.O. wrote to the property office purporting to terminate the lease as from 31 October. The third party replied on 26 July saying that it could not accept this termination, that it revoked its consent to the sublease, and that the plaintiff must remove the sub-lessee from the premises by 31 August. The plaintiff H.O. wrote back on 3 August observing that his 'offer of termination' as from 31 October had lapsed because it had not been accepted by the lessor and that the lease consequently remained in force for the contractual period, but saying that he was ready to negotiate with the lessor on all points. On 10 August the third party replied to the plaintiff H.O., terminating the lease 'without notice' as from 14 August, on the ground that the plaintiff H.O. was in breach of "para. 8 (3) of the lease by his refusal to terminate the sub-lease as of 31 August; the letter also stated that the third party intended to conclude a head lease with the defendant as from 15 August. The property office arranged for this letter to be served on the plaintiff H.O. by the postal service. As the addressee was not to be found at home, a written communication was left at his address, just as an ordinary letter would have been, informing him that the letter itself awaited him at the M Post Office. The third party concluded a lease with the defendant with effect from 15 August.

The plaintiffs now claim the rent on the under-lease for the months of September and October 1972, and the defendant counter-claimed, on appeal, for the repaying of half the rent which it had paid the plaintiffs for August 1972. The Landgericht dismissed the claim. The Oberlandesgericht dismissed the plaintiffs' appeal, and, treating the counter-claim as a cross-appeal, found the plaintiffs liable. The plaintiffs' further appeal was unsuccessful.

Reasons

In the Court of Appeal, the plaintiff's claim for the payment of the rent on the under lease for September and October 1972 was dismissed under para. 323 BGB, and the counter-claim for repayment of the rent for the second half of August was upheld because that same paragraph disentitled the plaintiffs from claiming the rent for that period. The reason rent could not be claimed under the sub-lease was because the written notice of termination given by the third party on 10 August had determined the lease between the third party and the plaintiff H.O., making it impossible for the plaintiffs thereafter to fulfil their obligation under the sublease to guarantee the use of the premises to the sub-lessee. 2. We agree with the appellant that the Court of Appeal was wrong in this case to apply the rules regarding subsequent impossibility in bilateral contracts, for we adhere to the view we expressed on 30 October 1974 (BGHZ 63, 132, 137) that to the extent that the special provisions of paras 537, 538, 541 BGB apply, the rules relating to subsequent impossibility are ousted.

(a) But these provisions of the law of leases, like para. 323 BGB, are only applicable if the notice of termination of 10 August was validly declared and substantially justified. If the declaration of immediate termination was effective and justified, the lease between the third party and the plaintiff H.O. came to an end. The third party would then have a claim for restitution against the defendant (paras 556 para. 3 and 985 BGB), and this would constitute a 'right' in the sense of para. 541 BGB. Furthermore, when the third party in its letter to the defendant [sic] of 10 August made it clear that it no longer accepted the defendant's possession under the sub-lease but would allow him to continue in possession only if he became head-lessee, this constituted a 'withdrawal of use' in the sense of that text (see BGH| 63, 138). If the notice of termination was valid, therefore, the defendant was freed by paras 541, 547 BGB from the obligation to pay rent under the sublease.

(b) The notice of termination was validly declared.

(aa) Notice of termination is a declaration of intention which needs to be received. If a declaration is made in the absence of the address it becomes effective at the moment at which it 'reaches' him (para. 130 BGB). A declaration of intention reaches the addressee as soon as it comes within his area of control such that in normal circumstances he could be expected to learn of it [references omitted]. The written notice of termination of 10 August did not reach the plaintiff H.O. in this sense, for it lay in the M Post Office. Certainly the postal form stating that the letter was waiting for him in the Post Office came into the plaintiff's area of control, for the Court of Appeal was satisfied that the postman making the delivery left this form at the plaintiff's house just as if it had been a normal letter. This finding does not, however, justify the Court of Appeal in concluding that the letter of termination itself also reached the plaintiff H.O. The letter remained in the Post Office, and the chit informing H.O. that it was there simply put him in a position where he could bring the letter within his area of control (see BAG NJW 1963, 554; BGH VersR 1971, 262).

(bb) The declaration of termination must arrive: it is not enough that the addressee be informed that the letter containing it awaits him at the Post Office. [Rules of Bavarian administrative law permit bodies to effect service of documents by depositing them in the Post Office, but these are inapplicable to relations of private law; nor could the provisions of the BGB be ousted by the Postal Ordinance of 16 May 1963].

(cc) para. 132 BGB does not apply in this case. It is true that arrival may be deemed to have occurred under this paragraph, but only when a court official (Gerichtsvollzieher) is used to serve the document (para. 132 para. 1 sent. 1 BGB). It is only to such service that the reference made to the ZPO by para. 132 para. 1 sent. 2 BGB applies. Service by anyone other than a court official is not deemed to constitute 'arrival'. This is generally agreed by courts and writers alike [references omitted] and we see no reason to depart from that view. Legal certainty requires a narrow construction of provisions regarding the service of documents. Nor can the unequivocal wording of para. 132 BGB be expanded by reference to the intention of the legislator. The legislator's intention was to provide a procedure whereby documents might be served by a judicial officer, an official commanding public trust and able to make an official certificate of service (I Motives to General Part paras 75, 76). The legislator accordingly intended that para. 132 BGB, which deems arrival to have occurred, should never be applied unless a court official was involved in the process.

(dd) But in some cases para. 242 BGB permits one to treat a declaration of intention as having arrived in due time although it did not reach the reception area of the person to whom it was directed (see BGH VersR 1971, 262; BGH NJW 1952, 1169 - arrival presented or delayed). Here the reason the declaration did not reach the addressee was that, not having been at home when delivery was sought to be made, he failed to fetch the envelope containing the declaration from the Post Office where it lay. It is true that in general there is no duty to take steps to obtain receipt of documents, and that a person who learns that a document has been deposited for him is not ipso facto bound forthwith to go and fetch it. But the legal relations between the sender and the addressee of the declaration may be so special that a situation arises where the addressee who fails to collect the deposited document may find himself treated as if it had actually reached his area of control. This is such a case.

The plaintiff H.O. had obtained from the lessor the consent which he needed under para. 8(2) of the lease for the sublease which he had effected. Then when H.O. gave notice of termination, the lessor withdrew its consent and demanded the removal of the sub-lessee by 31 August. H.O's response to this was that the lease remained on foot for its term, and that he was ready to negotiate on all points. For him to take no action whatever eight days later when he learnt that the letter, containing the notice to quite, awaited collection is irreconcilable with this last statement, especially as, according to the Court of Appeal's findings in another context, he implicitly refused in his letter of 3 August to remove the subtenant from the premises within the stipulated period. Even if he was expecting mail from other correspondents, he should have realised that the deposited envelope might well contain a declaration from the lessor in relation to the business in hand, since they had been in communication for six weeks. It is accordingly contrary to good faith (Treu und Glauben) for the plaintiff to take the point that the notice of termination did not actually reach him. It can therefore be disregarded.

(c) The notice of termination is furthermore justified.

3. In conclusion, the obligation of the defendant to pay rent to the plaintiff under the sublease came to an end on 14 August 1972.

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