Process telematics: you can not invoke the non-receipt if the program to open the attached file is not installed ; still valid formal notification from the reception.
If the contractor or professional is not voluntarily install the software for reading attachments contained in this email message sent through the certified mail ( Pec ) can not, then, in its justification, the time-limits for object any document served through this medium. In fact, the incorrect use of Pec is wrongful conduct of the account holder eamil.
In such cases, therefore, there can be no justification, nor can invoke force majeure in the event of lack of knowledge an attachment injunction ritually received via Pec.
The court, therefore, can not accept any belated opposition at the same injunctive relief (ie, filed out of the 40 days of formal receipt, regardless of the failure to open the Annex).
This was stated by the court of Mantua with a recent ruling [1] .
The story
A craftsman opened, as required by the regulations, a box of Pec. On 26 February saw the e-mail address of a lawyer, without, however, being able to open attachments. He asked for clarification to the professional, but received no response. On March 27, he did attend a computer technician, learning only then that the schedule was notified of an injunction for his debt to an employee. Only 7 April last, so far beyond the limits of the law, brought an appeal against the decree, citing as a reason that no one had reported the need to install special programs to “unload” notification and supporting, however, the timeliness of ‘ opposition because the deadline had expired on 27 March, the date of actual knowledge of the notification.
The sentence
In the first place, the court stated that under the current law [2] :
– the lawyer, in compliance with the requirements of the law, can notify acts with Pec , except that the judicial authorities shall notify the person;
– telematics service must be performed at the address resulting from public lists;
– the Notification must be made enclosing , the message Pec, l ‘ document to be served
– notification is perfected , for the notifier at the time of generation of the receipt of acceptance [3] , and, for the recipient, which is generated when the delivery receipt [4] .
In this case, the notification had taken place according to the law; also did not reveal any cause of force majeure , being the lack of knowledge of the injunction due to voluntary behavior and negligence of the debtor, who did not install the software to read the attachments.
The court ruled that the ‘ objection was late and, therefore, inadmissible, resulting in the final passage of the injunction.
Towards the telematics
The rules governing the notification Pec is in force since May 24, 2013 It is, therefore, the provisions of which preceded the mandatory electronic filing of the injunction and acts endoprocessuali, which applies to proceedings initiated on 30 June.
[1] Trib. Mantua, sent. of 06.03.2014.
[2] Arts. 1 ss. L. n. 53/1994.
[3] Art. 6, paragraph 1, of Presidential Decree 68/2005.
[4] Art. 6, paragraph 2 of Presidential Decree 68/2005.
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