JURIDICAL ACTS WITH RESPECT TO A PERSON THAT IS NOT PRESENT

The current restrictions imposed in connection with the coronavirus Covid-19 pandemic entail, inter alia, limited contact of persons. If you act with the other person that is not (physically) present, it is good to know when your expression of will reaches that person.

 

Regarded the acting in material (written) form, in the vast majority of cases it relates to sending mails via a postal licence holder, so-called juridical acts with respect to a person that is not present. Regarded the acting made by electronic means it is likely to occur both situations either where persons act in mutual presence with each other or cases where they are not.

 

For example, sending a message to the recipient's electronic mail (e-mail) is considered as an act with respect to a person that is not present. On the other hand, if you use a video-call as a form of communication, e.g. on Skype, it will be considered as an act in mutual presence of those involved. The first mentioned option, i.e. juridical acts with respect to a person that is not present, is going to be discussed briefly in following part of this article.

 

Juridical acts with respect to a person that is not present are regulated by the provision of section 570 of Act No. 89/20120 Coll., The Civil Code (hereinafter referred to as “the Civil Code”). In accordance with rules applicable in the Czech Republic it is not decisive when you express your will through a juridical act, but when such an expression of will reaches that person, e.g. the other contracting party.

The acting person (the person who acts - expresses a will) - is responsible that a juridical act reaches the person. However, this does not mean that the acting person would have to search for the addressee and make sure personally that the addressee had taken delivery of the 'consignment' and became acquainted with it. Then, of course, the regulation of juridical acts with respect to a person that is not present would be meaningless.

 

From the practical perspective it relates to situations when due to the error in delivery a consignment does not reach an addressee - then it is not possible to conclude under no circumstances that a consignment reached an addressee, even if it has been demonstrably dispatched. The burden of proof thus usually lies with the person acting - the sender. This person also bears a decision whether to dispatch it again, eventually by another way.

What should you do when the addressee intentionally frustrates a delivery? The same provision of § 570 Civil Code is applicable to such cases. If the party intentionally frustrates a delivery, it is presumed that an expression of will of acting party duly reached the person.

As it is apparent from the foregoing, a consignment must reach the addressee in such a way it can be assumed that an addressee will be acquainted with it, unless there is an exceptional, extraordinary circumstance that excludes the possibility of acquaintance. Therefore, it is not required that an addressee has always become aware of the consignment if he could become aware of it.

If you send a consignment using a postal licence holder a provision of § 570 Civil Code stipulates that a consignment which has was dispatched and which reached the destination is presumed to have reached the destination on the third working day after it was dispatched; however, if it was dispatched to an address in another country, it is presumed to have reached the destination on the fifteenth working day after it was dispatched.

 

However, this rule cannot be construed in way that it is sufficient to send a consignment and to consider a consignment as delivered on the third working day after dispatch. Your juridical act in such a case must indeed reach the addressee - this arise from the wording of the provision itself “A consignment which has reached the destination…”. If a juridical act actually reaches an addressee, it can be presumed in accordance with that provision, that it was the third working day after it was dispatched. Subsequently, it is up to the addressee of the juridical act to refute the presumption, if necessary, and to prove that the consignment was delivered to him on another day.

 

ARROWS advisory group

Marek Hučík
Junior associate
T: +420 601 062 227
E: hucik@arws.cz

 

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