E-mails in the spam folder did not even make it to the electronic in-box, so they have not been delivered effectively, right?

Wrong! In a current judgement, the Austrian Supreme Court held that even e-mails that arrived “only” in the spam folder have been delivered (or are deemed to have been delivered); at any rate, this will apply if one makes it clear that one can be contacted via a specific e-mail address. 

Brokerage dispute gave rise to Supreme Court decision

The specific case on which the ruling of the Supreme Court is based involved the conclusion of a brokerage agreement for the purchase of a house by a married couple and the related broker’s commission:

After the spouses had seen an appropriate offer for the purchase of a house, they phoned the broker and expressed their interest in the advertised house. On the very same say (18 August), the broker sent one of the spouses an offer by e-mail, at that spouse’s e-mail address. This offer also included information about the broker’s commission, instructions on the option (available under the Austrian Acts on Distance and Off-Premises Contracts (FAGG) and Consumer Protection (KSchG)) to withdraw from the contract within 14 days if appropriate instruction is provided, and a model withdrawal form. The e-mail arrived in the spam folder of the e-mail account, unnoticed by the spouse, however.

Some days later (on 29 August), the spouse phoned the broker again and asked for the documentation and/or offer to be sent to him. During this phone call, he agreed a viewing appointment with the broker, to inspect the house on 2 September. Subsequently, the broker dispatched a (second) e-mail with the documentation (attached again); this e-mail also ended up in the spouse’s spam folder.

Due to information given by the broker when they viewed the house (on 2 September), the spouse became aware of the e-mails having arrived in his spam folder. He then saved the (second) e-mail (of 30 August) in his mail folder (in-box). A week after the viewing appointment, the spouses established contact with the seller of the house, agreed on the purchase price and clarified the funding. The attorney-at-law drawing up the sale and purchase agreement on behalf of the spouses explained the right of withdrawal to them on 16 September (i.e., 14 days after viewing the house and saving the second e-mail in the in‑box) and, on the very same day, drafted a statement of withdrawal on behalf of the spouses. Thus, more than 14 days lay between the two e-mails to the spouse (18 August and 30 August) and the withdrawal (16 September). The question thus was whether the withdrawal had been effected in time (and the spouses therefore did not have to pay a commission to the broker).

The Supreme Court denied that the withdrawal had taken place in time because the withdrawal period had started to run already upon receipt of the e-mails in the mail box (the Supreme Court obviously regarded the spam folder as a part of the mail box) – and had thus expired. Consequently, the spouses had to pay the agreed commission to the broker.

When will e-mail delivery be effective?

In this decision, the Supreme Court first repeated its established ruling that (regardless of the type and form of the declaration of intent) it is sufficient if a declaration of intent has reached the sphere of control of its addressee. For delivery to be effective, it is thus not necessary that the recipient has personally taken note of the declaration of intent. It suffices that it was possible for the recipient to take note of the declaration. Neither could the recipient of a letter prevent its delivery by failing to empty the letterbox because a letter is in the recipient’s sphere of control once it has been dropped into the letterbox.

In respect of electronic declarations of intent such as e-mails, the Supreme Court has ruled on multiple occasions that the in-box (mailbox) will be deemed part of the recipient’s sphere of control in all cases where recipients have made it clear that they can be contacted via the e-mail address. This will apply, in particular, if the recipient

• expressly states to be contactable via the e-mail address,
• distributes calling cards with the e-mail address stated thereon, or 
• mentions this e-mail address on a website as a contact option.

When will electronic delivery (e-mail, text message, etc.) not be sufficient?

Sending an e-mail will not be sufficient in all cases where a declaration must be made in a specific form, such as written form, in order to be effective. For some declarations, written form is a prerequisite for the effectiveness. For instance, in connection with the Austrian Rent Act, the tenant can terminate a lease agreement only “in court or in writing”; employment contracts must be terminated in writing. It should be noted that under Austrian private law, “in written form” or “in writing” means “signed” (i.e., provided with a handwritten signature). For instance, the Supreme Court held that terminating an employment contract by “WhatsApp” (transmission of a photograph of the termination letter bearing a handwritten signature) is not sufficient.

According to Supreme Court case law, e-mails will be deemed delivered even if they end up in the spam folder. If delivery by e-mail is sufficient (in the absence of formal requirements) and one makes it clear that one communicates via one’s e-mail address, then an e-mail in the spam folder can have far-reaching consequences. Therefore, it is advisable to periodically check the spam folder.