The Federal Court of Justice (BGH) ruled on January 21, 2008, that even when sent by post, the timely dispatch of a utility bill is not sufficient to meet the one-year billing period stipulated in § 556 (3) sentence 2 of the German Civil Code (BGB); instead, the bill must have been received by the tenant within the deadline.
§ 556 BGB (Agreements on Utility Costs) states:
(3) Advance payments for utility costs must be settled annually, observing the principle of economic efficiency. The bill must be communicated to the tenant no later than the end of the twelfth month following the end of the billing period. After this period, the landlord is precluded from asserting a supplementary claim, unless the landlord is not responsible for the delayed assertion. (...)
Furthermore, the Federal Court of Justice has confirmed its jurisprudence, according to which there is no prima facie evidence for the receipt of mail items that have been posted.
The plaintiffs were tenants of an apartment in Berlin rented by the defendant. After the termination of the tenancy, the plaintiffs demanded the payout of a credit balance of €355.26. The defendant, for its part, asserted a supplementary claim of €625.71 from a utility bill for the year 2004. With this claim, it declared a set-off and filed a counterclaim for the amount of €270.45 exceeding the plaintiff's claim. The plaintiffs argued that the defendant had not complied with the billing period under § 556 (3) sentence 2 BGB, because the plaintiffs had not received the utility bill for 2004, which was prepared on December 21, 2005. The defendant offered evidence that the bill had been sent in due time by post. The Local Court ruled against the defendant as requested and dismissed the counterclaim. The Regional Court rejected the defendant's appeal.
The defendant's appeal against this decision was unsuccessful. The Eighth Civil Senate of the Federal Court of Justice, responsible inter alia for residential tenancy law, ruled that the defendant's supplementary claim is precluded under § 556 (3) sentence 3 BGB because the defendant failed to comply with the one-year billing period under § 556 (3) sentence 2 BGB. To comply with this deadline, the utility bill must have been received by the tenant within the period; timely dispatch of the bill is not sufficient (as explicitly stated in the government draft for the Tenancy Law Reform Act, BT-Drs. 14/4553, p. 51). The fact presented as evidence by the defendant, that her partner posted the utility bill as a letter and sent it to the plaintiffs on December 21, 2005, does not establish prima facie evidence that the plaintiffs received the utility bill in due time. According to the consistent jurisprudence of the Federal Court of Justice, there is no prima facie evidence for the receipt of mail items that have been posted.
The assertion of the supplementary claim by the defendant would therefore only not be precluded under § 556 (3) sentence 3 BGB if the defendant were not responsible for the delayed assertion. However, this condition is not met. For accountability within the meaning of § 556 (3) sentence 3 BGB, the provision of § 278 BGB applies, meaning that the landlord is also responsible for the misconduct of their vicarious agents. Here, the postal service was to be regarded as the defendant's vicarious agent for sending the bill. Contrary to the defendant's view, § 278 BGB is not to be applied restrictively, and the exceptional case regulated in § 556 (3) sentence 3 BGB is not to be generally assumed if unexpected and unforeseeable delays or mail losses occurred during postal delivery for the landlord. This would ultimately mean that, with regard to the preclusion of supplementary claims in all cases of postal dispatch – apart from exceptional situations (e.g., postal strike) – timely dispatch of the bill would suffice to meet the deadline. However, this would contradict the express legislative intent. Instead, it depends on the specific circumstances of the individual case whether a delayed postal delivery or a loss of the mail item is due to the fault of the postal service.
Judgment of the BGH of January 21, 2009 – VIII ZR 107/08
Lower Courts: Local Court Charlottenburg – Judgment of March 8, 2007 – 218 C 517/06; Regional Court Berlin – Judgment of January 29, 2008 – 65 S 176/07 Source: BGH Press Release No. 16/2009 of January 21, 2009
Goldberg Rechtsanwälte
Attorney Michael Ullrich, LL.M. (Information Law)
E-mail: m.ullrich@goldberg.de
