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Case:
RGZ 105, 256 III. Civil Senate
Date:
12 July 1922
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 defendant, who lived on the F estate in Mecklenburg, owned a parcel of woodland measuring 58.875 hectares. On 17 August 1919 he wrote to the plaintiff offering to sell him the timber on it at a price of 950 M. per Morgen and giving him until 25 August to accept. On 25 August the plaintiff telegraphed the defendant 'I accept 58.875 hectares at the price of 950 M. per Morgen'. That same day the telegram arrived in W, the telegraph office nearest to the F estate, but it was not delivered to the defendant until the next morning and then only by the normal postal delivery. Regarding the contract as having been duly formed on the basis - which the defendant denied - that his telegram of acceptance had been brought to the defendant's knowledge by telephone on 25 August; the plaintiff sued for authority to remove the timber.

The Landgericht decided that the defendant must be put on his oath regarding the question whether or not the telegram was orally communicated to him, and made its decision dependent on what he swore to. The plaintiff's appeal to the Oberlandesgericht was dismissed. He appealed again, and his appeal was allowed.

Reasons

It is common ground that the telegram which arrived in the W Post Office on 25 August 1919 was not delivered to the defendant until the postman brought it with the morning delivery the following day. Now the defendant had arranged for telegrams addressed to him to be communicated to him by telephone under para. 27 V 1 of the General Regulations for Postal and Telegraphic Services. The plaintiff seeks to conclude from this that his telegram should be treated as having 'reached' the defendant as soon as it arrived in W. Both tribunals of fact found against this contention, and rightly so. The transmission of telegrams by telephone - the method chosen by the defendant and expressly permitted by law (see para. 19 II of the Telegraph Ordinance of 16 June 1904 (RZBl. 229)) - is a method which anyone who sends a telegram, especially to an address in the country, must reckon with, and which is exactly like delivery by special messenger. Whichever method of communication is chosen, a telegram only reaches the recipient in the sense of para. 130 BGB when the telegraph office makes it possible for him to learn of it. This certainly happens when the content of the telegram is communicated by telephone to the recipient's number and the message is taken by a member of the family of the household (RGZ 56, 262; 97, 336). The Oberlandesgericht did not find it proved that this had happened here, and consequently decided that the defendant must take a judicial oath regarding oath regarding the oral communication of the telegram. But this is not a suitable case for such treatment. For even if the defendant's evidence under oath were against the plaintiff, and it was found that the plaintiff's declaration of acceptance came into the defendant's hands too late, it would not necessarily be right to dismiss the claim as the Oberlandesgericht proposes. The plaintiff sent off his declaration of acceptance in good time so that it would have reached the defendant on 25 August if it had been properly transmitted, that is, if the officials in W had done their duty. Furthermore, the defendant saw, or would have seen if he had been paying proper attention to the telegram form, that it had arrived in W at 9.50am on 25 August, and that the delay in transmission must therefore be due to some irregularity in the service. The defendant therefore came under a duty to inform the plaintiff without delay that the telegram had arrived late (para. 149 BGB). He did not do this. It is true that he wrote on 26 August that he regarded his offer as having lapsed, since K had not appeared in person, as agreed, to conclude the matter; but as the Oberlandesgericht has found that there was no such agreement, this was not a ground of invalidity. What the defendant wrote was no substitute for the notice of delay provided for in para. 149 BGB. The duty to make such notification arises from respect for good faith (Treu und Glauben), which requires that a person who uses a proper mode of transmission and can expect his acceptance to arrive in good time should be informed without any culpable delay if his expectations in a particular case have been frustrated by some unforeseen irregularity. He must therefore be in a position to discover that this is the reason for which the contract has gone off (I Motiven for the BGB p. 171). An offeror who unjustifiably states that his offer has lapsed by reason of some irrelevant circumstance which would not have affected the conclusion of the contract if the declaration of acceptance had arrived in time, does not satisfy his duty to notify, for the risk remains that the acceptor may make further commercial arrangements in the justified belief that his declaration of acceptance arrived on time and so formed the contract. The consequence of a culpable failure to notify of delay is that, in derogation from the principle of paras 146, 150 para. 1 BGB, the offer is deemed not to have lapsed but to have been accepted in due time, no account being taken of the delay which actually occurred. It is true that the plaintiff did not expressly invoke para. 149, but in the circumstances of the case the Court of Appeal should have checked whether it was applicable or not.

But even if the defendant had satisfied para. 149 BGB, the judgment under appeal could not stand. The Oberlandesgericht had misconceived the evidentiary value of the incoming telegram and its role in the burden of proof. We can leave aside for the moment the evidentiary value of the message for the recipient, for to that extent the telegram constitutes a private document and is in law to be treated as a written communication of the sender's will addressed directly to the recipient (see RGSt. 8, 92; 30, 238; 31, 42). But the incoming telegram also bears official statements regarding the place where it was handed in, the time when it arrived, and, in the case of telegrams which are telephonically transmitted, the fact that it has been so communicated (para. 27 para. 10 V 6, General Regulations). Thus facts and events are indicated on it which are alien to the sender's declaration of intention but of considerable significance, or possible significance, to him and the recipient. This is especially true of the certification of oral communication. It cannot be said that para. 27 para. 10 is a purely internal service provision, since the telegraph service physically relinquishes the telegram on handing it to the addressee, and the entry in its arrivals book is quite sufficient to permit control of the staff. The annotation on the telegram cannot be made for the purpose of proof for or against the telegraph authorities, for they give no guarantee that telegrams will be delivered properly or on time and decline all liability in damages for delay in transmission (para. 21 no. 1 Telegraph Ordinance). But if the official annotation that the telegram has been orally communicated is not designed, mainly or at all, to serve the internal functioning of the service, it must in the nature of things be designed essentially for the benefit of the recipient: in requiring the official who communicates or processes the telegram to certify the fact, the telegraph authorities must intent to provide a means of proof of the fact and time of oral communication which is worthy of public credence and valid or for or against any interested party. This is also in tune with the needs of commerce, given the important role a telegram can play in the formation of a contract under para. 127 BGB.

If the telegram delivered to the defendant were before the court and bore a mark to the effect that it had been orally communicated, this would constitute good evidence of that fact under para. 418 Code of Civil Procedure (ZPO), and the defendant would then have to prove that the act of communication so evidenced did not take place. The aforementioned General Regulations for the Telegraph Service state in para. 27 para. 10 V 6 that 'when telegrams have been orally communicated they are to be so marked and sent to the addressee by post in a closed envelope bearing the inscription . . . "Orally Communicated Telegram"'. In the light of (a) this provision, (b) the note in the arrivals book that the telegram had been orally communicated and (c) the failure to deliver it by special messenger (para. 27 para. 12 ibid), one must conclude until it is shown otherwise, that the incoming telegram bore a mark of oral communication. The defendant should have realised that the telegraph service believed it to have been orally communicated, given the fact that the telegram which had arrived at W on Sunday morning was delivered to him only on Monday, and then only by normal postal delivery. Under these circumstances an averagely careful businessman who knew that the telegram had not in fact been orally communicated would immediately have got in touch with the telegraph service in order to clear up the matter. The defendant should have done this, and it would have been perfectly easy for him since he had a telephone. Having failed to do this forthwith, he should at any rate have done it when the plaintiff made it clear in his letter of 26 August that he regarded the contract as formed. Not only did the defendant omit to find out from the Post Office what had really happened, but he has also failed to adduce the original telegram in evidence, and has not satisfactorily explained how he has come to lose it. Good faith (Treu und Glauben) made it his duty to preserve the telegram with care, for it was important for the legal relations of the parties. His breach of this duty must be accounted culpable.

The defendant's culpable omissions have made it impossible for the plaintiff to use the incoming telegram as evidence, indeed as proof under para. 418 ZPO, of the timeous arrival of the telegram, which it was for him to establish. In consequence, under general principles (see RGZ 60, 152), the plaintiff's assertion that the telegram was communicated to the defendant on 25 August must be treated as true until the defendant proves otherwise. The Court of Appeal did not evaluate the matters of proof from this point of view: it will be necessary for it to do so if the plaintiff fails under para. 149 BGB.

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