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Case:
RGZ 144, 289 IV. Civil Senate
Date:
03 May 1984
Note:
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Tony Weir
Copyright:
Professor Basil Markesinis

On 30 December 1931 the plaintiff tenant sent the defendant a notice of termination of the ten year lease which they had entered into on 2 March 1926. The dispute was whether the notice reached the defendant in time and, if not, whether she must be treated as if it had. The plaintiff claimed a declaration that the lease had been terminated by this notice.

The Landgericht dismissed the claim, but the Oberlandesgericht allowed the plaintiff's appeal. On the defendant's appeal, that decision was reversed and the case remanded to the trial court (judgment of 18 May 1933). The Oberlandesgericht made the final outcome dependant on the defendant's judicial oath. The plaintiff appealed, and the declaration he sought was granted.

Reasons

Regarding the defendant's contention that the notice was ineffective because it did not reach her, the following facts emerged. On 30 December 1931 the plaintiff posted a letter to the defendant's last known address in B. That was the defendant's last fixed abode, but she had left forwarding instructions with the Post Office at B. They were to forward mail to L, post restante. Accordingly the plaintiff's letter arrived at L on 31 December, where it was made available for collection. Meanwhile, however, on 12 December the plaintiff had given further forwarding instructions that mail arriving for her in L was to be forwarded to H, post restante, 'until further notice'. The Post Office form on which the defendant gave these further instructions contained the following footnote arising from the General Regulations for the Post and Telegraph Service, para. V(1): '1. Instructions for inland forwarding lapse after fourteen days . . . and are, if necessary, to be renewed in advance.' Fourteen days having elapsed since the second forwarding instructions were given, the notice of termination was not forwarded by the L Post Office to H, but remained in L at the post restante counter awaiting collection. Then, since it was still not collected two weeks later, it was returned to the sender.

Is the letter to be regarded as having reached the defendant under these circumstances? As can be seen from para. 130 BGB, it is not necessary that the defendant should actually have had knowledge of it: it is enough that it arrive in her area of control so that she could forthwith have knowledge of it. In its earlier decision it was unnecessary for this court to determine whether the letter could be treated as having arrived when it was made available for collection in L, since on the facts then found it was no part of the defendant's instructions that the letter should be kept in L at all. The disregard of her instructions may have been pursuant to Post Office Regulations, but this did not alter the fact that it was not her declared intention that the Post Office at L should act as her intermediary. On rehearing, the Court of Appeal held itself bound by this view of the law, but it was bound only so long as these findings of fact remained unaltered, and it failed to note that there had been a critical alteration in these findings of fact which underlay the Reichsgericht's decision. Previously the only information available was from the Post Office at L, and the Oberlandesgericht in its first judgment therefore assumed, as did this court, that there was no intrinsic time limit contained in the plaintiff's instructions for forwarding from L to H, and that it was only because of Post Office Regulations, extrinsic to her forwarding declaration and unknown to the defendant, that her instructions for the letter in question were disregarded. In the renewed proceedings, however, it emerged that the two week limit was built in to the defendant's own forwarding instructions. Her declaration ceased to have effect after the lapse of these two weeks, and the prior situation then resumed: pursuant to the instructions left by the defendant in B, the Post Office in L was to hold any incoming mail for collection by her at the post restante counter there. It was therefore contrary to the findings of fact in the judgment of the Court of Appeal on the first occasion, in accordance with the defendant's declared intention that the L Post Office be once more the place to accept and hold incoming mail for her: it was in accordance with the declaration she herself had made that mail lay waiting for her in L. The defendant is bound by the terms in which she declared her intention, and cannot invoke her belief that by giving the second forwarding instructions in L she had cancelled for good, and not just for two weeks, that Post Office's power to accept and retain any mail which arrived for her.

We must now tackle the question left open by the Reichsgericht in its previous judgment, whether the letter is to be treated as having reached the defendant when it was put at the poste restante counter in the L Post Office. It is. The Reichsgericht has constantly held, in applying para. 130 BGB, that a declaration of intention, especially one contained in a letter, is to be treated as having reached the distant addressee at the moment of time when the recipient could normally be expected to learn of it, given the general arrangements he has made for the receipt of such communications. In the application of this basic principle, the Reichsgericht has held that when people arrange to pick up their mail from a special locker in the Post Office, a declaration of intention is treated as having reached them on the day on which the letter containing it is placed in the locker, that is, is made available for collection provided that it would normally be collected on that day (see RGZ 142, 402, 406; other references omitted). The same must apply to poste restante arrangements where, as here, the addressee himself has instructed the Post Office to retain any mail addressed to him until he collects it.

The letter of termination of 30 December 1931 is accordingly to be seen as having reached the defendant on 31 December, or on 2 January 1932 at the latest. It is true that the defendant did not in fact learn of the declaration, though she could have, but this does not affect its efficacy, for as has already been said, it is the 'arrival' of the declaration of intention which is relevant under para. 130 BGB, not the addressee's actual knowledge of it. It is just as if the letter had been placed in the mailbox at the defendant's home and then gone missing without her knowing anything about it.

The present findings of fact enable us to hold that the notice of termination 'reached' the defendant timeously and in proper form, so the judgment under appeal must be reversed and final judgment entered for the plaintiff in accordance with his claim.

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