What does the law say?

The legislator has privileged the postal service with regard to the transportation of “letters and letter-like items” under liability law. This is expressed in Section 449 HGB and is explained in the explanatory memorandum to the law:

449 HGB:

(1) Insofar as the contract of carriage does not relate to the carriage of letters or consignments similar to letters, the liability provisions in section 413 paragraph 2, sections 414, 418 paragraph 6, section 422 paragraph 3, sections 425 to 438, 445 paragraph 3 and section 446 paragraph 2 may be deviated from only by agreement, which shall be negotiated in detail, even if it is made for a number of similar contracts between the same contracting parties. However, the carrier may not invoke a provision in the consignment bill which deviates from the provisions mentioned in sentence 1 to the detriment of the party entitled under the consignment bill against a consignee named in the consignment bill to whom the consignment bill has been issued or against a third party to whom the consignment bill has been transferred.

(2) By way of derogation from paragraph 1, the compensation payable by the carrier for loss of or damage to the goods may also be limited by pre-formulated contractual terms to an amount other than that provided for in section 431 paragraphs 1 and 2 if this amount is

1.is between 2 and 40 units of account and the user of the pre-formulated contractual terms points out to his contractual partner in an appropriate manner that they provide for an amount other than the amount provided for by law, or
2.is less favorable to the user of the pre-formulated contractual terms than the amount provided for in Section 431 (1) and (2).

Furthermore, by way of derogation from paragraph 1, the amount of compensation to be paid by the sender under section 414 may be limited by pre-formulated contractual terms.

(3) If the sender is a consumer, no derogation from the provisions set out in paragraph 1 sentence 1 may be made to his detriment, unless the contract of carriage relates to the carriage of letters or similar items.

(4) If the contract of carriage is governed by foreign law, paragraphs 1 to 3 shall nevertheless apply if, according to the contract, both the place of taking over and the place of delivery of the goods are in Germany.

Excerpt from the explanatory memorandum (BT-Drucksache 13/8445):

“In many cases, the liability rules provided for in the present draft do not do justice to the special features of mass postal traffic: the majority of letters to be transported and some of the letter-like items (such as small parcels) are delivered via letterboxes without direct customer contact. The sender is often unknown. The value of the goods and the liability risk for these products can hardly be estimated. The carrier must be able to modify the liability – and not just the amount of liability – through general terms and conditions.”

The question

Does the liability privilege under Section 449 HGB for “letters and letter-like items” also apply to registered mail?

The answer must be “no” if you read the explanatory memorandum to the government draft of the TRG (BT-Drucksache 13/8445, see above). This is because the legislator has made it clear in the explanatory memorandum that the decisive criterion for distinguishing letters and letter-like items from other transport goods is the complete lack of customer contact (anonymity). This anonymity means that the value of the goods and the liability risk simply cannot be assessed by Swiss Post.

In my opinion, the aforementioned legislative intention only allows the conclusion that a registered letter is not a letter or a letter-like consignment within the meaning of § 449 HGB (also e.g.: Koller, Kommentar zum Transportrecht, 5th edition, § 449, para. 30; Grimme in Transportrecht 2004, 161).

The latter is less important because the Post would otherwise be able to exclude or at least limit its liability for registered mail even in cases of qualified fault via its general terms and conditions via Section 449 (2) HGB. This is because Swiss Post has – no doubt surprisingly for some – expressly assumed liability for qualified fault in its General Terms and Conditions. Section 6 (1) of the General Terms and Conditions “Letter National” reads as follows:

“Deutsche Post shall be liable for damages that are attributable to an act or omission that it, one of its employees or another vicarious agent (§ 428 HGB) has committed intentionally or recklessly and in the knowledge that damage will probably occur, regardless of the following limitations of liability.”

The rather interesting question, which the Federal Court of Justice and the Bonn District Court also had to ask themselves in their decisions explained below, is therefore whether the postal service can be subject to a so-called duty of disclosure in the case of registered mail.
I n general freight law, it is recognized that in cases in which the presumed area of the occurrence of damage is beyond the sender’s control, the carrier has a procedural duty to provide information, especially if the course of the damage is completely in the dark (see Koller, Transportrechtskommentar, 5th edition, § 435, para. 21).

If this obligation to comply is not fulfilled, the carrier is presumed to be at fault with the consequence of unlimited liability.

BGH judgment of June 14, 2006 (Ref. I ZR 136/03), NJW-RR 2007, 96-98

The BGH has now expressly denied such an obligation to comply, which indisputably cannot apply to ordinary letters, for registered letters as well. In justifying its decision, the court took up the legislator’s intention to give privileged treatment to the transportation of letters. The BGH stated:

“When transporting letters, the focus is on the transmission of the individual declaration of ideas contained in the letter. When sending parcels, the focus is on the transportation of the packaged valuable items. The sender of a letter generally suffers no material damage from its loss (see BGHZ 149, 337, 349). Accordingly, there is generally no incentive for third parties to appropriate the contents of letters in order to enrich themselves.

The fact that the due diligence and organizational requirements for the dispatch of letters and letter-like items are lower than for the transport of parcels is in line with the system of the law, which in Section 449 (2) sentence 1 HGB allows for more extensive limitations of liability for letters and letter-like items than for other items.”

The Federal Court of Justice has now applied the above finding, which can in any case be described as undisputed for ordinary letters, to registered letters. It stated the reasons for this:

“The registered letter differs from an ordinary item only to the extent that the posting and receipt of the item are documented. It is also subject to the rules of mass mail transport at favorable prices, which are based on what is economically justifiable. Registered letters are not intended for sending valuable goods. The special features of mass postal traffic – fast and inexpensive transmission to every household in Germany – apply to a registered letter in the same way as to ordinary letters and letter-like items.”

The weaknesses of the BGH ruling

The BGH’s reasoning is not convincing.

In line with the legislative intent, the Federal Court of Justice correctly stated that registered mail does not conceptually constitute “letters or letter-like items”. However, its reasoning as to why they should be treated as such does not hold water.

The BGH ignores the fact that the legislator has based the liability privilege for letters very decisively on the anonymity of sending letters (cf. the explanatory memorandum to the law, II. 2. above). However, this anonymity is lacking in the case of registered mail.

Furthermore, his argument that “the special features of mass postal traffic – fast and inexpensive transmission to every household in Germany” apply to registered mail just as much as to ordinary letters is not convincing.

First of all, registered mail accounts for only a fraction of the volume of letters sent by Swiss Post. Moreover, the fee that Swiss Post charges for registered mail is often many times higher than the postage of a normal letter. Against this background, registered mail cannot be regarded as part of the “bulk business”, the management of which is – allegedly – only possible by completely dispensing with interface controls.

Incidentally, the economic reality is that “the special features of postal mass transport” also apply to mass parcel services (DHL, UPS, etc.) today. It is not uncommon for the parcel rates charged by bulk parcel service providers to be barely higher than the postal rates for registered large letters. Nevertheless, the bulk parcel service providers must also live with their liability; especially in the event of loss, they must be able to admit to the circumstances of the loss if they want to avoid liability.

Finally, the BGH closes its eyes to the economic reality when it states: “Registered mail is not intended for the dispatch of valuable goods.”

Even in the case of normal letter mail, it is extremely questionable whether it can be assumed that the sender generally has no interest in the value of the item, with the result that in the event of loss he will also have no interest in recovering his item. With “maxi letters” in particular, the opposite is more likely to be the rule. Hardly any maxi letters will only contain “declarations of intent”. It should also be borne in mind that these days, declarations of intent are increasingly reaching their recipients electronically (especially by email), so it is questionable whether even normal letters (up to 20 g) always contain declarations of intent.

However, in the case of registered mail, it cannot be assumed that the recipient has no interest in the value of the item sent by registered mail. The case where the sender is only interested in a confirmation of receipt for a registered letter is likely to account for only a fraction of all registered letters. However, it is much more common for registered mail to be used as a “small parcel”, i.e. to send small consignments of goods.

Contra BGH: Judgment of the Bonn Local Court of 29.03.2006 (Ref. 9 C 549/05), n.v.)

In view of the above, the Bonn Local Court quite rightly assumed that there was an obligation to comply with a lost registered letter – or more precisely, its contents. Since Swiss Post was unable to exonerate itself, it was liable without limitation. Regrettably, Swiss Post was able to prevent the local court from providing reasons for its decision by recognizing the claim in dispute in good time. However, this is no obstacle for the author, who was involved in the proceedings on the side of the claimant, to present the correct reasons of the Local Court in the following:

The facts of the decision can be summarized as follows:

A car key was sent to the post office by registered mail, but never reached the recipient. A damage report resulted in Swiss Post returning the empty, torn envelope of the registered letter to the sender, but otherwise refusing any liability in excess of EUR 20 on the grounds that a higher liability was not provided for under its General Terms and Conditions, which were in accordance with the statutory provisions of the German Commercial Code.

During the trial, Swiss Post did not or could not explain how it was possible that the contents of the shipment were lost. As a result, the district court had to decide whether or not to subject the shipment in dispute to the liability privilege of Section 449 HGB.

In line with the view expressed by the BGH, the main argument of the Post against a duty to comply was as follows:
The transport of letters is a bulk business whose legal requirements according to the Postal Universal Service Ordinance (PUDLV), in particular the duration of transport, could not be fulfilled by the Post if it were obliged to carry out interface controls. However, if Swiss Post is not required to carry out interface checks, it cannot necessarily be required to explain the circumstances of the loss in the event of a loss.

Fortunately, the Bonn District Court has resisted the powerful postal-friendly case law of the Federal Court of Justice, which has rejected the arguments in favor of the Post (see V. above), and in the case described above required the Post to explain the circumstances of the loss:
The envelope of the registered letter was found torn open in an envelope center. The local court has now rightly demanded that the post office must explain itself and has thus imposed the described duty of disclosure on the post office. Swiss Post did not comply. Sensing the consequences, the Post then acknowledged the claim.