Receipt of notice of termination: the end of registered post by postbox delivery

‘Prima facie evidence’

In its decision II ZR 299/15 (most recently V ZR 203/22) on prima facie evidence, the Federal Court of Justice (BGH) handed down a judgement several years ago which conferred great significance on registered post with return receipt in legal transactions. According to this ruling, a letter is deemed to have been received if the sender can produce the posting receipt and a copy of the delivery receipt. However, this prima facie evidence may be rebutted by the submission and proof of exceptional circumstances. Whilst this still does not prove the specific content of the consignment, Nevertheless, this makes it considerably easier for the party making the claim to provide evidence regarding receipt.

The end of registered post by postbox?

Last year, the Federal Labour Court (BAG) left open the question of whether it would follow the Federal Court of Justice’s (BGH) line (2 AZR 68/24). It did not answer the question of whether prima facie evidence applies in the case of registered post by postbox. In any event, prima facie evidence no longer exists merely on the basis of the presentation of the proof of posting and a record of the item’s journey. This is because there is a lack of information regarding the identity of the postman and other details of the delivery.

In May this year, the Second Senate ruled that registered post delivered via a postbox was no longer a reliable means of delivery in legal proceedings (2 AZR 184/25). The Federal Labour Court (BAG) has ruled out prima facie evidence of delivery, even where a posting receipt and a copy of the delivery receipt are presented. The reason: Deutsche Post has digitised the delivery process. Whereas the postman used to remove the so-called ‘peel-off label’ – which serves to identify the item – immediately before placing it in the letterbox and stick it onto the prepared delivery receipt, under the new procedure he simply scans the barcode on the item and signs the delivery confirmation. The problem is that the scanning process is thus completed before delivery has actually taken place, and the delivery receipt is, at least for a few moments, inaccurate. The delivery receipt would then only allow one to conclude that the postman had verified that he was standing in front of the addressee’s letterbox. It is not unusual for the postman to be distracted or prevented from actually delivering the item even after signing on the scanner. Consequently, it is not possible to assume the typical sequence of events required for prima facie evidence, which, following the signature, would indicate with a high degree of probability that delivery would subsequently take place.

Outlook

Following the decision of the Second Senate, Deutsche Post AG has stated that it has since adapted the scanning procedure. The current procedure provides for additional digital documentation of the delivery process. After scanning, the postman immediately confirms the delivery in the scanner, where this is recorded alongside their signature. It remains to be seen whether this can be construed as prima facie evidence under case law. Irrespective of this, even with such documentation, the specific contents of the item are still not verified.