Blog
Hedman Partners Law Office
23.09.2010
5 options for delivering a declaration of intention
 |
| Law office |
|
|
There are at least five common possibilities for delivering a declaration of intention, each having its pros and cons. Comparison of different delivery types and choosing the right strategy is very important because the receipt of declaration of intention delivered to a physical- and legal person might be interpreted differently by the court, write Valter Võhma, lawyer at Hedman Partners Law Office, and
Urmas Kiik, attorney-at-law at Hedman Partners Law Office.
According to the General Part of the Civil Code Act the declaration of intention (e.g. request to terminate a contract) directed at a certain person enters into force as of receipt. Although the formulation of the Act is fairly concrete, then proving the receipt of declaration of intention in practice may prove to be problematic. Above all, this problem is mostly noticeable when starting bankruptcy proceedings (e.g. a debtor refuses to accept the bankruptcy caution) or when trying to withdraw from or cancel a contract (e.g. an employee refuses to accept the declaration of cancellation of the contract of employment from the employer).
Delivering a declaration of intention by registered mail
As a rule registered mail is delivered to a recipient by a postman, who asks the addressee to sign the delivery note, which is then returned to the sender proving the receipt of the mail. However the addressee might not always open the door and sign the delivery note. Therefore if the postman is unable to obtain a signature from the addressee, a notice of registered mail’s arrival will be sent to recipient’s mailbox. If the mail is not collected by the recipient from the post office then it will be returned to the sender. This situation may raise the following question: can the notice of declaration of intention be considered duly received by the addressee after reasonable time has passed from the moment the notice of registered mails arrival has been put into the addressee’s mailbox?
The Supreme Court (3-2-1-8-09) has clearly stated no as an answer to the before mentioned question (In the decision of Supreme Court’s Civil Chamber no 3-2-1-8-09 (17th of March 2009) the receipt of declaration of cancellation of the credit agreement was analysed by the court). The court panel held that as the delivery note does not reveal the content of the registered mail then the recipient of the declaration of intention has no chance to know the content of the document being sent. Hence the declaration of intention can not be deemed to be received by the addressee by posting a notice of registered mail’s arrival into the mailbox. This kind of approach is justified in case of physical persons. But should this approach also be acceptable regarding legal persons?
In case of administrative proceedings the Supreme Court has held that if the post office is unable to hand the document over to a legal person for signature then the document is considered to be duly delivered from the moment the note indicating the arrival of the registered mail has been put into the addressee’s mailbox (Supreme Courts Administrative Chamber regulation no 3-3-1-75-07 section 15 (19th of December 2007); regulation no 3-3-1-10-04 section 14 (03rd of March 2004) and regulation no 3-3-1-37-03 section 11 (20th of May 2003).
According to the Supreme Court (3-3-1-10-04) a legal person, acting either through a member of the management board or some other authorised person, must attend that the mail is duly received at its registered office. By leaving the mail correspondence unorganised the legal person takes a risk that important notices (including acts of tax authority) may not reached it. It can be assumed that after leaving the notice of arrival of registered mail into the addressee’s mailbox the addressee immediately turns to the post office because the registered mail refers to the importance of the document.”
Although the provisions (Administrative Procedure Act § 26 and General Part of the Civil Code Act § 69 and the following) of the General Part of the Civil Code Act and the Administrative Procedure Act, that respectively regulate forwarding the declaration on intention and submitting a document via mail, are not identical and regulate different kinds of legal domains, the authors still find that the principles applied by the Supreme Court to submitting a document via mail in administrative law should also be applicable in case of making a declaration of intention to a legal person on the basis of General Part of the Civil Code Act.
Although the Civil Chamber of the Supreme Court did not distinguish legal and physical persons when analysing the delivery of declaration of intention, authors support the interpretation by which the declaration of intention is deemed to be delivered to a legal person when reasonable time has passed since posting the notice of arrival of registered mail into the legal person’s mailbox.
Authors agree to the viewpoint of the Supreme Court’s Administrative Chamber according to which a legal person must take care of its mail correspondence at its registered address. This standpoint is justified and necessary in order to assure normal civil and economic relations. As a legal person is obligated to constantly organise it’s mail correspondence then the approach, according to which a legal person may claim that it has not received the registered mail after reasonable time has elapsed since posting the notice of arrival of registered into its mailbox, is in authors opinion unjustified.
Advantages:
• receipt of registered mail is easy to prove (post office’s cheque, notice of delivery);
• registered mail is traceable (when was the mail carried, when was the arrival notice left into the mailbox etc.);
• in authors opinion the declaration of intention should be considered to be received by a legal person after reasonable time has elapsed since the notice of arrival of a registered mail has been left in the legal person’s mailbox;
• reasonable price.
Disadvantages:
• in case of a physical person the declaration of intention can not be declared as delivered by leaving the notice of arrival of registered mail into the physical person’s mailbox;
• it is assumed that the address of the receiver is known to the sander, whether it is the address of the residence, administrative address or registered address (In case of physical person the sender must prove that the addressee lives in that certain address. This assumption also applies when sending the declaration of intention by ordinary mail or by courier.)
Sending a declaration of intention by mail
Although ordinary mail is usually delivered to a recipient in a shorter period of time when comparing to registered mail then proving receipt of declaration of intent via regular mail might turn out to be impossible in practice. The main reason behind this is that in case of regular mail no documentation is issued to the sender by the post office proving submitting the mail. Only the post office’s date-stamp is marked on the envelope and the mail’s further journey is not documented and therefore not traceable. Hence considering aforesaid, it is not recommended to submit a declaration of intention to a party in bad faith by ordinary mail as the addressee may quite easily deny receiving the mail, making it almost impossible for the sender to prove otherwise.
Advantages:
• regular mail is usually delivered to the addressee faster than registered mail;
• reasonable price.
Disadvantages:
• it may be impossible to prove the delivery of declaration of intention by regular mail in later judicial proceedings as no delivery notice is issued to the sender;
• regular mail is not traceable;
• it is assumed that the address of the addressee is known to the sander, whether it is the address of the residence, administrative address or registered address.
Sending a declaration of intention by e-mail
E-mail is one of the most popular and cost-efficient ways to deliver a declaration of intention. The confirmation of delivery from the addressee is usually a prerequisite in order to prove the delivery of the declaration of intention by e-mail (usually the addressee replies to the sender’s e-mail verifying the receipt). It is important to keep in mind that in case a debtor or a contracting party does not confirm receiving the e-mail, then receipt of the declaration of intention by the addressee might be complicated to prove in later judicial proceedings. In our practice the courts have sometimes deemed the document to be duly delivered to the receiver by e-mail even when the addressee does not confirm the receipt (especially in cases when it has been proved that the addressee uses that particular e-mail account daily, e.g. has done sale offerings or sent e-mails to other persons etc.)
Advantages:
• e-mail is usually received in a few seconds/minutes;
• monetarily very cost-efficient.
Disadvantages:
• the e-mail address of the addressee must be known to the sender;
• as a rule confirmation of receipt is needed from the addressee in order to prove the delivery of the declaration of intention.
Delivering a declaration of intention by courier
Courier service is comparable to sending documents via registered mail. The difference between registered mail and courier service is that in case of courier service it is possible to ask the currier to leave the document itself at the addressee’s mailbox (when the addressee is not at home or unwilling to sign the delivery notice). In this case it is advisable to agree on the exact details of delivery and ask the courier to prepare a protocol on the delivery, so that later on the protocol could be used as evidence in judicial proceedings.
When the courier leaves the document itself (and not the notice of arrival of registered mail as it would be the case when sending the document by registered mail) into the mailbox, the recipient of the declaration of intention may not rely on the argument that it, he or she has been unable to acquaint oneself with the content of the document.
Advantages:
• if the courier leaves the delivery to recipient’s mailbox, the declaration of intention can be counted as obtained by legal and physical person. It is important that the previously mentioned procedure would be correctly documented for a possible dispute that might arise later;
• speed (usually a courier can be ordered on the same day).
Disadvantages:
• it is more expensive than sending a registered mail but still much more cheaper than using the service of bailiff;
• the address of the addressee should be known to the sander, whether it is the address of the residence, administrative address or registered address.
Involving a court bailiff before judicial proceedings
Court bailiffs, who are mainly used when conducting execution proceedings according to execution documents (e.g. court judgement), also offer professional services (According to the webpage of Ministry of Justice the bailiffs of Tallinn Mati Kadak and Reelika Nuudi (the substitute of Hille Kudu) offer the professional service of delivering the legal acts (last checked on 06th of September 2010). One of the services offered by the court bailiffs is assistance in delivering a declaration of intention. The service is rather similar to the courier service. The main reason for opting for the bailiff’s service is that in this case the provisions of the Code of Civil Procedure are applied to sending the declaration of intention and the bailiff has the right to use all the methods for delivery eligible for court regarding procedural documents. Among other things the bailiff has the right to deliver the document publicly via court.
Advantages:
• court bailiffs are usually well experienced in searching for persons and delivering documents;
• court bailiffs may use all the ways for delivering the declaration of intention that are eligible for court in case of delivery of procedural documents;
• court bailiffs can, as a last resort, deliver the declaration of intention publicly via court.
Disadvantages:
• more expensive than courier service;
• usually slower than courier service.
Suggestions for delivering the declaration of intention:
• Find out whether the recipient of the declaration of intention is a legal or a physical person.
• Make sure whether the address (e-mail, registered address etc) of the person is known to you. In case of a legal person the document can be sent to the registered address or to the business address (in case the declaration of intention is connected with a contract).
• It must be remembered that in case the addressee is a physical person, the sender must be able to prove that the person really lives at the address the declaration of intention was sent to. In this regard it is always recommended to check the population register.
• When the addressee is a legal person, it is recommended to deliver the declaration of intention by registered mail or by courier.
• If the address of a physical person is known then it is recommended to deliver the declaration of intention by courier and ask the courier to leave the envelope into the mailbox and carefully protocol it (in case the addressee refuses to accept the envelope).
• If the e-mail address of the addressee is known then it is always recommended to check whether the person uses really it (e.g. has used it in previous correspondence etc). Despite aforesaid it is highly recommended to duplicate the delivery of declaration of intention by e-mail regardless of the other delivery type chosen.
• If the address of a physical person is not known then it is advisable to use the court bailiff’s service.
Recommended literature:
Tiivel, R. General Part of Civil Law. Lectures. Tallinn, 2009, pages 108-113.
Hallik, L. Declaration of Intention in Civil Law. MA thesis. Tutor: Varul, P. University of Tartu, Faculty of law, 2005 (link http://dspace.utlib.ee/dspace/bitstream/10062/1041/5/hallik.pdf).