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Case:
RGZ 125, 68 VII. Civil Senate
Date:
25 June 1929
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

The plaintiffs' son, A.Z. Jr., who had taken out an insurance policy with the defendant company on 10 August 1925, had a fatal accident on his motor cycle on 6 October 1926. The plaintiffs claim 10,000 RM, the sum payable under the policy on the death of the insured. The defendant refused payment on the ground that at the time of the accident the insured was in default, having failed, notwithstanding proper notices of default, to pay the premiums due in February and August 1926. The plaintiffs deny that these notices of default reached their son. Both courts below held that they did, and dismissed the claim. The plaintiffs appealed; the judgments below were reversed and the case remanded.

Reasons:

I [Procedural]

II

[Adequacy of printed signature on notices of default?]

The Court of Appeal further held that the notice of 15 April 1926 'reached' the insured. It was sent by registered mail and was addressed to 'Mr. A.Z., Arendsee, Koloniestr.' The household at that address comprised the present plaintiffs, Mr. A.Z. and his wife, their daughter, Miss E.Z., and the insured. The insured had given his name as 'A.Z. Jr.' in the application form, and was described as 'A.Z. Jr.' in the certificate of insurance. When the postman made his rounds, he handed the letter in question to Miss E.Z., as the certificate of delivery shows, for the receipt was signed by 'E.Z.', and the postman noted that he gave the letter to 'the daughter'. The Oberlandesgericht took the view that when the letter was delivered to the insured's residence to a member of his family it thereby came into his area of disposition so that he could learn of its contents. The court did not overlook the point that in the household to which the letter was delivered there were two people with the name of A.Z., but it discounted the postman's belief that the letter was addressed to Miss E.Z.'s father rather than her brother, and held that when the letter was handed to Miss E.Z. it came directly into the area of control of both the Messrs. E.Z., father and son.

We cannot accept this in toto. It is certainly irrelevant who the postman believed to be the correct addressee of the letter, but as long as it was uncertain which of the two Messrs. A.Z., father and son, the letter was for, it did not 'reach' either of them. While it was in doubt which was intended, each could say that he was not the addressee and could allow the letter to be returned in order that the ambiguity in the direction be cleared up.

But while it might not be apparent from the way the letter was addressed that it was for the son and not the father, other indications on the envelope might have made this clear. For example, the envelope might have borne the name of the defendant company and it might have been generally known in the family that only the son had dealings with it; or perhaps the letter might have been opened by a member of the family and seen to have been for the son A.Z. In these cases there would be no doubt that the letter had 'reached' Mr. A.S. Jr.: a member of his family would have it in his hands and would know exactly to whom to give it. The address, originally ambiguous, would now have become unequivocal.

The defendant has led no evidence on the points just mentioned. The argument of the parties has essentially turned on the question whether the defendants' letter actually reached the hands of Mr. A.Z. Jr. - which would of course constitute 'arrival' - so the Oberlandesgericht, whose view of the law rendered it unnecessary, has not addressed itself to the relevant question.

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