Verifiable delivery of specific and important declarations such as gym or residential cancellations, contract revocations or reminders is often necessary and also recommended. There are many delivery options, but not all of them are the right choice in every respect. The various delivery options and their potential problems and risks are described below.
The simple letter
Dispatch in the form of a simple letter does not constitute proof of submission or receipt of the declaration. This method of dispatch is generally not recommended for important documents. The situation is different if the recipient of this declaration replies to its receipt, as this confirms receipt of the declaration.
Sending by fax
Contrary to a very widespread opinion, sending a declaration by fax does not constitute proof either. Even if a record of the dispatch can be presented, as this only represents proof that the dispatch from the fax machine was carried out correctly - nothing more. Whether the declaration was actually received by the intended recipient is not shown by the dispatch protocol and is therefore not proven. In addition, the "OK" on the transmission log does not provide any further evidence, because this is also displayed if the recipient's fax machine is defective or its toner is empty. The transmission protocol therefore does not constitute proof of receipt by the recipient. In the best case scenario, but this is not generally accepted by all courts, the transmission log is merely an indication that the declaration was actually received, so that in such a case a so-called "secondary burden of proof" is imposed on the recipient. According to this, the recipient must present the reasons why the receipt of this fax "may" have been impossible - for example, a frequent failure of the fax machine. Apart from the proof, the type of declaration of intent should always be taken into account. For certain declarations of intent, such as the termination of a residential tenancy or an employment relationship, the written form is mandatory, meaning that the letter must be signed in the original and transmission by fax would not be sufficient.
The e-mail
An email is only deemed to have been delivered if it is stored in the mailbox of the recipient or their provider in a retrievable form. Proof must generally be provided by the person who wishes to claim access - i.e. usually the sender. Which is very difficult per se. Even if it can be proven, some courts are still of the opinion that this still does not provide proof of receipt by the recipient, as the declaration in the form of the email can also end up in the spam folder and be lost along the way. It is therefore generally not advisable to send emails in this way, as proof can only be provided if the recipient replies directly to the content of the email and the original text from the sender is still included.
Registered mail from Deutsche Post
With the so-called registered letter with posting, the postman drops the letter into the recipient's letterbox and confirms delivery without the recipient's signature but with his signature. This means that the document has reached the recipient's "sphere of influence". With regard to the legal view, such a delivery does not fulfil the requirements of a formal delivery, so that such a delivery cannot be proven. According to the established case law of the Federal Court of Justice, only prima facie evidence of legal receipt is provided (BGH, judgement of 25 January 2012 - Ref.: VIII ZR 95/11).
Handover envelope from Deutsche Post
In the case of a handover letter, the recipient or a person from their sphere of life/work must personally acknowledge receipt of the item, which is also digitally documented by the deliverer together with the date. If the deliverer does not meet the recipient, they will leave a notification note in the letterbox that they can collect a document from the post office - the emphasis here is on "can"! This is because if the recipient does not collect the handover letter, which they are not legally obliged to do, there is no effective delivery.
Registered letter with acknowledgement of receipt from Deutsche Post
When sending by registered letter with acknowledgement of receipt, the sender receives a confirmation of receipt signed by the recipient - the acknowledgement of receipt. If the recipient refuses to accept the document, this is of no help to them, as this is nothing more than a refusal of receipt, which simulates receipt in this case. However, if the deliverer does not find the recipient at all, he will also put a notification note in the letterbox that the recipient "can" collect the document from the post office. If there is no collection, there is no delivery here either. This means that there is a possibility of a missed deadline.
Handover with messenger
Another but rather cumbersome option is to use a trustworthy messenger who can later testify as a witness in possible court proceedings. This does not apply to the declarant himself, as he can usually appear in court proceedings as a party to the proceedings and not as a witness. The messenger should be aware of the document so that the letter should be placed in the envelope and sealed in his presence. Accordingly, the messenger can also confirm what was in the envelope. Furthermore, there are also risks here with regard to the general uncertainty inherent in witness evidence. The more remote the personal or business relationship is, the better it is for the credibility of the messenger as a witness.
The bailiff service
With this type of service, you must first contact the competent local court at the addressee's location and then contact the bailiff's distribution centre directly. The original document is sent to the bailiff's distribution centre with the request that it be delivered to the addressee. Please note that the envelope containing the letter must not be sealed, as the bailiff must be aware of the contents. It is best to attach two copies to the original. After delivery via a bailiff's delivery service, a so-called postal service certificate is issued. This, together with the copy of the letter, is sent to the sender.
Personal service by bailiff
With this variant of service, which is also the most expensive, the bailiff is contacted via the bailiff's distribution centre of the local court and asked for personal service. Two copies are also attached to the original. The bailiff will then personally deliver the document to the recipient and send the certificate of service to the sender. With personal service by bailiff, the receipt of the declaration of intent is legally secure. This option is the most expensive, but also the most secure of all.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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Lawyers in Cologne advise and represent clients nationwide in immigration law.
