Burden of Proof in Case of Disputes about the Content of Letters

Blanket Denial of the Content is not Sufficient

The Regional Labor Court of Thuringia (Landesarbeitsgericht Thüringen, hereinafter "Court") has ruled that a blanket denial of the specific content of a letter by the recipient is not sufficient if the sender proves that the letter was received by the recipient and claims that the letter had a specific content. Rather, the recipient can and must explain what other content the letter is supposed to have had.

In the case underlying the decision of the Court, the parties disputed the statute of limitations of a claim of the plaintiff for a special payment. The plaintiff claimed that she had asserted the payment of the special payment in writing to the defendant. It was undisputed between the parties that the plaintiff had sent a letter to the defendant. The plaintiff was able to prove the submission of a letter to the post office and the receipt of the letter by means of the mailing tracking system. However, the defendant blanketly denied that the content of the letter had been the assertion of the special payment. The Court considered this blanket denial to be insufficient to contradict the plaintiff's argument.

Risk Potential Continues to Exist in the Delivery of Letters in Practice

This decision is welcome from the employer's point of view. In proceedings for protection against dismissal, for example, the employee can no longer argue that the employer did not deliver the notice of termination. If the employer can prove delivery of a letter to the employee, the employee must explain what other content the letter should have had.

Nevertheless, there is still a risk for the sender that the recipient claims that the delivered letter had a completely different content than claimed by the sender (e.g. by presenting a different writ from the employer). In this case, the sender continues to bear the burden of proof for the content of the letter.

Avoiding Disputes by Using Witnesses

We therefore recommend that declarations requiring receipt, in particular termination notices, should be delivered in such a way that not only the receipt itself but also the content can be proven.

Sending by simple letter or registered letter with advice of receipt (Einschreiben-Rückschein) is no suitable form of delivery. In this case, the sender receives no confirmation that the recipient has actually received the letter. We also advise against sending by registered mail (Einwurf-Einschreiben). In this case, the sender only receives confirmation that the letter has been deposited in the recipient's mailbox. The actual content of the letter, however, cannot be proven by the sender.

We recommend handing over written termination notices in person and in the presence of a witness. The witness must not only be able to testify the handover, but also know the content of the letter handed over. If personal handover is not possible, a trustworthy person should be entrusted with the delivery. This person should be able to testify the content as well as the successful delivery of the letter and the time of delivery.