Definition and Legal Classification of the Messenger (Erklärungsbote)
Der Messenger (Erklärungsbote) is a term in German civil law that plays a central role, particularly in connection with declarations of intent. A messenger is a person who, on behalf of the declarant, delivers a declaration of intent to another person. In contrast to the so-called recipient’s agent (Empfangsbote), the messenger acts exclusively as a transmitter on the side of the declarant and does not make the declaration independently, but merely as a “mouthpiece” for the sender. The legal distinction between a messenger and a recipient’s agent is crucial for determining the receipt and effectiveness of declarations of intent.
Distinction: Messenger (Erklärungsbote) and Recipient’s Agent (Empfangsbote)
Messenger (Erklärungsbote)
The messenger acts solely on behalf of the declarant and is tasked with transmitting a declaration of intent made or attributable to the declarant to the recipient. The messenger is not authorized to make his or her own declaration of intent. The difference from a representative is that, with a messenger, there is no independent action in the name of another; the messenger merely delivers someone else’s declaration.
Recipient’s Agent
In contrast, the recipient’s agent stands on the side of the person receiving the declaration and accepts declarations on their behalf. The distinction is generally made according to general life circumstances; what is decisive is whom the declarant, according to customary views, could regard as suitable for conveying or receiving the declaration.
Legal Principles and Legal Consequences
Statutory Provisions
The German Civil Code (BGB) does not explicitly regulate the figure of the messenger (Erklärungsbote). However, the legal concept has been developed and generally accepted through case law and legal doctrine. The central rules for the legal treatment are found in the regulations on declarations of intent (§§ 116 ff. BGB) and their delivery (§ 130 Section 1 BGB).
Receipt of the Declaration of Intent by the Messenger
The receipt of a declaration of intent is fundamental for its effectiveness. If a messenger transmits a declaration of intent, it is generally considered received only when it reaches the recipient. Handover to the messenger does not constitute receipt—the declarant bears the risk that the declaration is properly delivered. Any transmission errors or delays made by the messenger are generally the responsibility of the declarant.
Attribution of Transmission Errors
If errors occur during transmission by the messenger, for example if the messenger misspeaks or transmits written declarations incorrectly, such errors are attributable to the declarant. The decisive factor is the so-called messenger’s error under § 120 BGB, which allows the person whose declaration was incorrectly transmitted to contest the declaration. The consequences of late or omitted delivery also affect the declarant.
Distinction from Representative
The essential difference between a messenger and a representative is that the representative carries out legal actions in their own name but for another’s account, whereas the messenger merely delivers another person’s declaration of intent, without any independent legal action. The representative is explicitly regulated in the German Civil Code in § 164 ff. BGB.
Requirements and Selection of the Messenger
Capacity to Contract of the Messenger
The messenger does not need full legal capacity, since he or she does not give a declaration of intent but only acts as a transmitter. Persons with limited or even no capacity to contract may also act as messengers. What is crucial is that the messenger is able to reliably transmit and correctly communicate the declaration.
Selection of the Messenger
Selecting a messenger may have liability consequences in individual cases, especially if the declarant selects an unsuitable messenger and this results in a transmission error. The reasonableness and suitability of the messenger depend on the specific circumstances of the case.
Typical Use Cases and Practical Examples
Oral Transmission
The messenger is frequently used for oral transmissions, for example when an employee instructs a colleague to pass on a specific message to a third party, which includes a declaration of intent (e.g., an offer to contract).
Written Transmission
In written transmissions as well, such as handing over a signed contract document to a third party with the request to pass it on to the recipient, the deliverer is a messenger, not a representative.
Legal Consequences of Incorrect Transmission
Error in Transmission (Messenger’s Error)
An incorrect, incomplete, or faulty transmission of the declaration by the messenger is attributed to the declarant according to § 120 BGB. In such cases, the declarant has the right to contest the declaration of intent, with the opposing party to the contestation being the recipient.
Liability for Transmission Errors
Transmission errors (such as failure to deliver, delay, or incorrect delivery) mean that the declarant bears the risk. A delayed or undelivered declaration does not have any legal effect.
Summary and Significance in Legal Practice
The messenger is a significant figure in German civil law for transmitting declarations of intent. The conceptual and legal distinction from the recipient’s agent and representative is essential for assessing the effectiveness, timing of receipt, and attribution of transmission errors. Legally, it is important to emphasize that only receipt by the recipient determines the success of transmission by the messenger, and any errors or delays are at the expense of the declarant. Therefore, in legal practice, both the choice of messenger and the wording of the declaration of intent are of central importance.
References:
- Palandt, Bürgerliches Gesetzbuch, latest edition, § 130 para. 5 et seq.
- Brox/Walker, General Part of the BGB, Chapter: Declarations of Intent
- Medicus/Petersen, Civil Law, § 5 Declarations of Intent
Related Terms:
- Declaration of Intent
- Receipt of Declarations of Intent
- Recipient’s Agent
- Representative
- Messenger’s Error
This article offers a comprehensive legal explanation and detailed presentation of the legal concept of the messenger (Erklärungsbote) in German civil law doctrine.
Frequently Asked Questions
Who bears the risk of an incorrect transmission by the messenger?
The risk of incorrect transmission of a declaration of intent by a messenger is generally borne by the person who selected and entrusted the messenger (so-called ‘principal’). If, for example, the messenger transmits a declaration of intent with incorrect content or fails to deliver it at all, the declaration is legally attributed to the recipient as it was actually transmitted by the messenger. Thus, any transmission errors must be borne by the person who used the messenger (§ 120 BGB analogously). If the declaration is lost, delivered late, or altered in content, the sender is liable, not the recipient or the messenger themselves, unless the messenger acted intentionally or with gross negligence. In such cases, the messenger may be liable to the principal under the general rules of agency law (§§ 662 ff. BGB). For the legal transaction between sender and recipient, however, what was actually declared remains decisive.
Can the recipient rely in good faith on the correctness of the declaration delivered by the messenger?
The recipient of a declaration of intent delivered by a messenger is generally not obliged to check the correctness or completeness of the declaration. Nevertheless, they do not enjoy any special protection of good faith. In the event of an incorrect or falsified transmission, what actually reaches the recipient is what counts. If, due to the circumstances—for example, if the recipient has reasonable doubts about the messenger’s authorization—there is reason for inquiry, the recipient may be found partially at fault (§ 254 BGB). However, this only applies in specific situations, such as in the case of conspicuous discrepancies or obvious errors in the content of the declaration.
Are there special requirements for the selection of the messenger?
The person acting as messenger is generally freely chosen by the declarant. There are no specific legal requirements for selection as long as the messenger is competent enough to understand and transmit the declaration (for simple declarations, a low level of capability is sufficient). However, if the declarant selects someone for whom transmission errors are obviously to be expected (e.g., a small child for complex written documents), they may be found at fault. Furthermore, the declarant generally bears the risk if the selected messenger does not transmit the declaration or transmits it incorrectly.
Can a messenger also be a legal entity?
Legally, any natural or legal person can act as a messenger, as long as they are actually able and authorized to reliably deliver the declaration of intent. In practice, natural persons are most often used. In the case of legal entities (such as companies or courier services), an individual employee acts as the factual deliverer. Here too, the declaration of intent is attributed to the sender according to general rules, as it was communicated to the recipient.
To what extent is the messenger a witness or participant in legal proceedings?
In civil proceedings, the messenger may be called as a witness, particularly regarding the content, time, and circumstances of the declaration delivered (§ 373 ZPO). The messenger is not a party to the contract, but a facilitator of the declaration. Their testimony can be decisive in clarifying what was actually declared. In the case of conflicting statements by the parties, the testimony of the messenger often carries significant evidentiary weight.
What are the legal consequences if the messenger fails to deliver a declaration of intent or delivers it late?
If delivery does not take place or is late, the declaration of intent is regarded as not having been received by the recipient, or as not received in due time. The intended legal transaction does not come into effect or is delayed accordingly. The sender bears the risk of non-delivery, so in case of doubt, they must resend the declaration or use another means if their intention to be legally bound persists. Any damage caused by delayed or missed delivery may potentially be claimed against the messenger internally if they are at fault.
How does the liability of a messenger differ from that of a recipient’s agent?
The messenger acts on behalf of the sender and delivers their declaration; the recipient’s agent accepts a declaration on behalf of the recipient. In the event of transmission errors by the messenger, the sender is generally liable; with a recipient’s agent, the risk of unsuccessful delivery is assigned to the recipient. Thus, the legal consequences are mirrored: transmission errors are attributed to the respective ‘principal’ of the messenger. A missing, late, or altered delivery by a recipient’s agent is therefore to the detriment of the recipient.
