The defendant, a ticket agent in Hamburg for the Lübeck State Lottery, had sold the plaintiff a one-eighth lottery ticket, no. 33412. On 31 October 1900 that ticket was drawn, with winnings of 166 M; the plaintiff was accordingly entitled to the sum of 17.29 M. The next day the defendant posted to the plaintiff a printed form, completed with the relevant figures and dates, informing him of his winnings. The document also stated that 'drawings in this main section' were to continue until 22 November and that 'the largest prize, perhaps of 500,000 M, as well as lots of large prizes and many thousands of smaller ones' were still on the wheel of fortune. Enclosed as a secondary lottery ticket was a one-eighth ticket no. 33451 in the final section of the lottery, priced at 17.25 M. The document continued: 'If you propose to retain the enclosed lottery ticket, kindly send back your winning ticket in the enclosed stamped envelope immediately. I draw your attention to the fact that only if you send me your winning ticket immediately on receipt of this letter can I regard you as the rightful owner of the enclosed secondary ticket and recognise your right to any winnings it may make. Please use the enclosed form for your reply. I expect that you will want to retain the ticket I enclose, but if you do not, please send it back immediately so that I may have time to dispose of it elsewhere.'
The letter, in which the underlined words were printed with emphasis, was delivered to the plaintiff's lodgings (Vogelhüttendeich 164, Wilhelmsburg, Hamburg) on the morning of 2 November. The plaintiff had already gone to work, so it was accepted by another lodger and placed in the kitchen. According to the plaintiff, at about nine o'clock that morning the defendant received a telegram from Lübeck with the news that lottery ticket no. 33451 had won 100,000 M., the winnings appropriate to a one-eighth ticket amounting to 10,416.07 M. On learning this the defendant sent his employee B to the plaintiff's lodgings where B persuaded the plaintiff's landlady - by lies, according to the plaintiff - to give him the letter addressed to the plaintiff, which was still lying on the kitchen table and had not yet come into the plaintiff's hands.
When the plaintiff returned home at noon, or possibly in the evening, he asked if there were any letters for him. He asserts, and is ready to swear, that he would have accepted the enclosed lottery ticket, and as evidence of this would prove that in previous cases when a ticket of his had been drawn, he had taken a further ticket in the same lottery and indeed in the same series. He also stresses that the defendant must have known, given the part of town where the plaintiff lodged, that he was dealing with a workman who would already have left for work before the first post was delivered.
The plaintiff claims 10,416.07 M., with interest at 4% from the time of claim.
The Landgericht dismissed the claim, and the Oberlandesgericht dismissed the plaintiff's appeal. On the plaintiff's further appeal, the decision of the Oberlandesgericht is reversed and the case remanded for the following
Because the court of appeal was of the opinion that the plaintiff must fail in either case, it did not decide whether he was bringing a 'contractual claim for the contractual sum or a tort claim for damages based on the defendant's preventing the plaintiff from acquiring the ticket.' The court held that if the plaintiff had accepted the lottery ticket which was sent to him, he would have been contracting for the chance of winning an uncertain amount; once the ticket was drawn, it represented the right to claim a specific amount, so it was an entirely different thing legally as well as economically; since the lottery ticket was drawn before it was accepted, the defendant was no longer bound by his offer.
This reasoning, which is essentially in line with that of the Landgericht, is unacceptable. It may in general be true that the offer of an undrawn lottery ticket lapses if it is drawn before the offer is accepted [references], but the first thing to consider must always be what the intention behind the offer of the ticket was in the individual case. According to the defendant's letter of 1 November 1900, the draw had begun and was to continue until 22 November, and his statement that he would regard the plaintiff as the rightful owner of the enclosed ticket and respect his claim to any winnings only if he sent back the previous winning ticket immediately on receipt of the letter was a quite unequivocal way of saying that although the plaintiff was to become owner of the ticket and entitled to its winnings only on the stipulated condition, yet if that condition were fulfilled he was to be the owner unconditionally, that is, even if the ticket attracted winnings in the meanwhile. If this was not the defendant's intention, he was bound to make an express and appropriate qualification, and he did not do so.
The considerations which led the lower courts to decide against the plaintiff are thus not in point. But the respondent has argued that their decision can be justified on the following grounds. From the facts already established it emerges that the defendant repossessed himself of the letter he had sent before the plaintiff got to know of the contractual offer it contained; since, as the Reichsgericht (Fifth Civil Division) decided in its judgment of 26 October 1901 (see JW 1901, 866), an offer of a contract is held to 'reach' its addressee when it comes to that person's knowledge, the defendant was not yet bound by his contractual offer when he repossessed himself of the letter containing it. This conclusion is erroneous, for the premise is wrong. If a person chooses to communicate a contractual offer by means of a sealed letter, the true view is that the offer 'reaches' its addressee in the sense of para. 130 BGB as soon as normal procedures bring the letter within the area of factual control of the addressee himself or of a person who represents him for the receipt of letters, and he is consequently in a position to acquaint himself with it. [References].
There is nothing inconsistent with this in the decision cited by the respondent. As the reasons in that decision make abundantly plain, that case did not involve a situation where para. 130 BGB fell to be applied; it was therefore enough to say that the contractual offer had come to the notice of the person for whom it was intended. In the present case, as the letter addressed by the defendant to the plaintiff was delivered to the dwelling of the plaintiff's landlady who, it can unhesitatingly be assumed, was qualified to accept letters, one must hold that the offer contained in the letter reached the plaintiff on the morning of 2 November and that the defendant became bound by his offer at that moment of time.
The plaintiff made no express acceptance of this offer meanwhile, and such acceptance as can be inferred from his bringing suit is clearly too late. But can the plaintiff not invoke para. 823 BGB? The contractual offer which reached the plaintiff conferred on him a legal power to complete the lottery contract by accepting it and so to acquire the rights arising out of the contract. If the defendant intentionally or negligently caused the plaintiff to make no use of this legal power, he is guilty of an unlawful act in the sense of para. 823 BGB. We need not ask whether one might not also invoke para. 162 para. 1 BGB, since no less is required for the application of that text here than for that of para. 823.
It emerges from the plaintiff's own evidence that he would not have accepted the defendant's offer on 2 November before noon on that day, perhaps not before the evening, but it would be wrong to regard his claim as defeated by this consideration alone. Certainly the defendant had stipulated that only if the plaintiff sent back the 'winning ticket immediately on receipt of this letter' (and thereby communicated his acceptance of the offer) was he to be regarded as owner of the ticket which was sent to him and as the person entitled to any winnings. But this cannot have meant that the reply must be despatched by the very next post after the letter arrived. Such a construction is excluded: even in the normal case the defendant, in sending off his letter, could not expect the recipient to be able to make so speedy a response, but here the defendant must have known that he was dealing with a working man whose lifestyle would make it impossible for him to do what was required on the day of receipt before noon or even the evening.
The suit is not yet ripe for decision. Further elucidation of the facts is required before it can be said whether any tort has been committed under para. 823 BGB.
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