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A policyholder in Baden-Württemberg requested coverage from his legal protection insurance for a claim for damages against an automobile manufacturer due to a faulty exhaust device (“diesel scandal”). First, a default judgment was entered in his favor. The insurance company’s lawyer objected to this – but only one day after the deadline had expired.
He justified his application for reinstatement with a beA disruption: he was staying away from home on the evening the deadline expired because he wanted to attend a hearing there the next day. He successfully sent six briefs via beA before arriving at the objection brief at 11:15 p.m. He could no longer send it because the beA had a technical problem that didn’t end until the next morning. He did not have a fax machine available. He was not familiar with the option of sending the document by computer fax.
The regional court rejected the appeal as inadmissible. However, the insurance company’s appeal to the Karlsruhe Higher Regional Court was successful, which granted the application for reinstatement and decided the matter in part in favor of the insurance company.
Lawyers don’t have to carry a fax machine with them
The insurance company was the OLG Karlsruhe (judgment of October 5th, 2023 – 12 U 47/23) according to reinstatement to the previous status according to § 233 ZPO to be granted because his default was not his fault. The objection period can be exhausted up to the last day; the lawyer then only has to plan a time reserve to ensure that, despite unforeseen delays, there is still time to repeat the transmission process on time. The defendant’s representative complied with this: at 11:15 p.m. it could be assumed that the written document would still arrive on time even if the sending process had to be repeated.
According to the Higher Regional Court, the lawyer is also not obliged to provide a second delivery method by fax or to switch to another delivery method, such as computer fax, which he has not yet used. § 130d Sentence 2 of the Code of Civil Procedure allows the use of these transmission channels within the deadline, but does not oblige the lawyer to submit a replacement.
In principle, according to the Karlsruhe judges, the risks of a transmission technology must not be passed on to the user. Based on the BGH case law on transmission by fax, they deduced that the lawyer can therefore prepare to be able to send his written submissions by beA. If he fails, he can switch to other means of transmission. However, the Higher Regional Court refused to oblige the lawyer to always have a second shipping route available. The only reasonable thing to do is to take a route that requires a small amount of additional time.
OLG Karlsruhe, judgment of October 5th, 2023 – 12 U 47/23
Redaktion beck-aktuell, rw, November 11, 2024.
Further links
From the beck-online database
BGH, replacement submission of electronic document due to temporary impossibility of submission via beA, NJOZ 2024, 1302
BGH, Limits of reasonableness of active beA use – Disturbed fax transmission, NJW 2021, 390
BGH, Lawyer’s obligation to check reliable employees, NJW-RR 2017, 953
