New conditions when using email to give notice in new Civil Code
In daily practice, e-mail is often used as an efficient, pragmatic and cheap means of communication. With the reform of Book I of the Civil Code, the Belgian legislator provides legal certainty for addressees when e-mail is used to give notice by providing additional safeguards regarding the burden of proof (Art. 1.5 Civil Code).
The use of e-mail to give notice has been subjected to specific conditions. Article 1.5 Civil Code provides as follows:
"Notification is the communication of a decision or a fact made by a person to one or more specified persons.
Notification reaches the addressee when he/she takes cognisance thereof or could reasonably have taken cognisance thereof.
Notification made electronically reaches the addressee either when he/she takes cognisance thereof, or when he/she could reasonably have taken cognisance thereof, provided, in the latter case, that the addressee has previously accepted the use of the electronic address or other means of electronic communication used by the person making the notification.”
Hence, a notice made through e-mail will only be deemed to have reached the addressee (i) when the addressee has effectively taken cognisance of the notice or (ii) when the addressee reasonably could have taken cognisance of the notice, provided that the addressee has accepted the use of its email address prior to that notice for that purpose. Hence, if the sender cannot prove that the addressee accepted the use of his/her e-mail address prior to sending the notice, then the sender must prove that the addressee effectively took cognisance of the notice.
The legislator chose to add this to Book I of the Civil Code in order to tackle the legal uncertainty for an addressee when his/her email address is used for giving notice. The addressee may not be using his/her e-mail address anymore or the e-mail may be filtered by an anti-spam filter. Hence, the addressee may miss the notice. Thus, according to the legislator, it is up to the sender to ensure that its notice effectively reaches the addressee. If the sender wants to make sure that the notice reaches the addressee, it can always use additional measures by sending a registered letter. The risk regarding the reaching of the addressee is for the sender.
After the entry into force, we recommend to only use e-mail to give notice when the addressee has clearly accepted the use of his/her e-mail address for this purpose. Note that the acceptance by the addressee must relate to a specific e-mail address or other means of electronic communication (e.g., SMS or web banking platform). A general statement by the addressee that he/she “accepts the use of e-mail to provide notice” without specifying the e-mail address that must be used, is likely not sufficient.
If the addressee has not clearly accepted e-mail as a means of giving notice, it is prudent to also send a registered letter to the addressee or to ask the addressee to confirm the reception of the notice through an acknowledgement of receipt.
Finally, please note that Article 1.5 Civil Code does not equate e-mail with a registered letter. Where a contract specifically stipulates the use of a registered letter (e.g., for notification of termination), the parties may only use a registered letter (or registered e-mail).
Book I of the Civil Code will enter into force on 1 January 2023.