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Proof of receipt of an email

Case law on the burden of proof for email, fax, read receipts, and secure delivery methods.

Peter Poleacov (updated )6 min

A laptop screen showing an empty email inbox in the browser

Background

A declaration of intent that requires receipt and is made to an absent party becomes effective at the moment it reaches the recipient. This follows from Section 130(1) sentence 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). Section 130 BGB applies accordingly to other notices that require receipt, such as notices of defects and warning letters.

Whoever relies on receipt of a declaration has to prove that receipt. That also applies to the point in time, that is, to whether the declaration arrived on time. Under Section 377(4) of the German Commercial Code (Handelsgesetzbuch, HGB), however, timely dispatch of a notice of defects is enough to meet the deadline in a purchase between merchants.

A written or electronic declaration made to an absent party must first enter the recipient’s actual control in the customary manner. It is received, however, only once the recipient has the opportunity, under ordinary circumstances, to take note of it. It enters the recipient’s control as soon as it reaches a receiving facility the recipient maintains, such as a mailbox.1

There are competing views on the burden of pleading and proof for the receipt of an email. The main question is whether the sender can rely on prima facie evidence. Prima facie evidence makes proof easier in typical sequences of events. These are cases in which an established set of facts points, by general experience, to a particular course of events.

  • One view holds that the sender of an email benefits from prima facie evidence that the email reached the recipient, unless a bounce-back is returned. According to this view, that applies even where the message may have ended up in a spam filter. The same view holds that an email has arrived once it is retrievably stored on the server of the recipient or the recipient’s provider.2

  • The other view holds that the sender must plead and prove receipt of the email under Section 130 BGB. The mere act of sending does not establish prima facie evidence of receipt.3 The same applies to a sending log.4

The first view rests on a 2008 judgment of a local court. Two regional labor courts and the commentaries follow the second.5

The decision

The Regional Labor Court of Cologne (LAG Köln) followed the second view.6 The court reasoned that the mere act of sending an email does not create prima facie evidence of receipt by the recipient. It is uncertain whether an email actually reaches the recipient’s server after being sent. As with ordinary postal mail, the message may technically fail to arrive. That risk cannot be shifted to the recipient. The sender chooses how to transmit the declaration. The sender therefore also bears the risk that the message does not arrive. According to the court, the sender can request a read receipt in its email client to make sure the email has reached its addressee.7

Outside employment law

This case law also matters outside employment law. It applies wherever the receipt of a declaration has to be proven, for example:

And what about fax?

For a fax, too, the “OK” entry on the transmission report does not establish prima facie evidence of receipt, but only an indication. That has long been the view of the Federal Court of Justice. It is now strongly disputed; several higher regional courts and authors take a different view because of better technology. The entry merely shows that the sending and receiving devices were connected. The transmission report does not show whether the data was actually transferred, or whether line faults or defects in the receiving device prevented that. The “OK” entry does, however, confirm that a connection was made to the number shown in the report. The recipient therefore cannot simply deny receipt (secondary burden of pleading). It has to state which device it operates at the receiving end and whether the connection is logged in the device’s memory. It must also state whether and how it keeps a receiving journal, and produce the journal where required.8 You should not rely on a fax transmission report in a dispute, though.

Practice tips

In important cases, send the declaration first by email and request a read receipt. Then send it by registered mail delivered to the mailbox (Einwurf-Einschreiben) or by messenger. For correspondence between lawyers, delivery via beA, the German lawyers’ electronic mailbox, is advisable.

With registered mail delivered to the mailbox, however, what matters is what you keep. In 2025 the Federal Labor Court held that the proof of mailing and the tracking record alone do not establish prima facie evidence of receipt. For prima facie evidence, the sender must also produce a reproduction of the delivery record. The court left open whether the reproduction is enough.9 A party that sends such a letter and notes only the tracking number therefore has no prima facie evidence of receipt in a dispute. Request the reproduction of the delivery record while it is still available and put it on file.

The safest route remains a messenger who has read the declaration and is available as a witness.

If a lawyer alerts a client by email to an appeal deadline expiring that same day and wants to prompt the client to appeal, the lawyer must use a read receipt to make sure the client has taken note of the email.10

When the email is received

Where, in business-to-business dealings, an email arrives on the recipient’s mail server during normal business hours, ready for retrieval, it is in principle received at that moment. Receipt does not require that the recipient actually retrieve and read the email. The Federal Court of Justice left open when an email that arrives outside business hours is received.11 For that reason, if an email must meet a deadline, send it during the recipient’s normal business hours.

Notes

  1. BAG, judgment of 30 January 2025 – 2 AZR 68/24, guiding principle 1; for email BGH, judgment of 6 October 2022 – VII ZR 895/21, paras. 16, 19 f. ↩

  2. AG Frankfurt a. M., judgment of 23 October 2008 – 30 C 730/08. ↩

  3. LAG Berlin-Brandenburg, judgment of 24 August 2018 – 2 Sa 403/18. ↩

  4. MüKoBGB/Einsele, 10th ed. 2025, BGB Section 130 marginal no. 47. ↩

  5. LAG Köln, judgment of 11 January 2022 – 4 Sa 315/21, paras. 64–66; MüKoBGB/Einsele, 10th ed. 2025, BGB Section 130 marginal no. 47; Erman/Arnold, 17th ed. 2023, BGB Section 130 marginal no. 33. ↩

  6. LAG Köln, judgment of 11 January 2022 – 4 Sa 315/21. ↩

  7. see BGH, order of 17 July 2013 – I ZR 64/13. ↩

  8. BGH, judgment of 19 February 2014 – IV ZR 163/13, paras. 27 f., 30; MüKoBGB/Einsele, 10th ed. 2025, BGB Section 130 marginal no. 47. ↩

  9. BAG, judgment of 30 January 2025 – 2 AZR 68/24, guiding principle 3, para. 18. ↩

  10. see BGH, order of 18 November 2021 – I ZR 125/21. ↩

  11. see BGH, judgment of 6 October 2022 – VII ZR 895/21. ↩

Reference: Poleacov, P. (2026). Proof of receipt of an email. INN.LAW. https://inn.law/en/perspectives/access-email/