United States: The Importance Of Retaining Evidence Of Receipt

A contractor's ability to recover on a claim may turn on whether the contractor provided timely notice of the claim to the project owner.  Claim notice requirements in contracts are "...legal and binding on the parties in the absence of special circumstances, such as waiver or estoppel."i

Claim notice provisions in construction contracts vary in their specific requirements and should be reviewed on each project, but they typically require that the party making a claim provide written notice delivered in person or sent by registered, certified, or statutory overnight mail (e.g. Fed Ex) to the other party.ii   But what happens to the claim if the owner denies receiving the contractor's notice?  Similarly, is the contractor's right to appeal the owner's decision on a claim lost if the contractor denies receiving the decision within the time allowed for an appeal?

In Georgia, "[e]vidence that a letter was written, properly addressed, with correct postage attached, deposited in the United States mail, and never returned to the sender, creates a rebuttable presumption that the recipient received the letters...." iii (emphasis added)

"Presumptions have two parts: (1) the predicate facts which must be proved to trigger the presumption; and (2) the conclusion presumed by law from those predicated facts."iv  Proof that a letter was written, properly addressed, with the correct postage and deposited in a mail box presumes the conclusion that the letter was received.v

All the predicate facts must be established for the presumption to apply.vi  For example, the presumption did not apply in a case where a properly addressed, stamped letter was "placed in a cigar box in a grocery store" for later delivery.  The sender of the letter could not prove that the letter was deposited in the U.S. Mail, even though evidence was presented that an employee of the store routinely delivered the letters from the cigar box to the post office.  The court's ruling was based, in part, on the fact that the employee that normally delivered the letters from the cigar box did not specifically remember seeing the letter at issue.vii

More than one hundred years ago, the United States Supreme Court upheld the presumption of receipt, explaining that "[t]he rule is well settled that if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed."viii   Thus, the presumption is based upon the post office normally delivering letters that have the correct address and postage.

But "...perfection for the post office and the 'mailbox rule' was, and never has been, more than a presumption that may be rebutted by other evidence suggesting that the addressee did not receive the letter."ix    As a result, the presumption of receipt can be rebutted by other evidence showing that the letter was not received.

The presumption of receipt is overcome if the undisputed rebuttal evidence shows that the letter was never received, absent additional evidence that discredits or impeaches such testimony.x  In such a case, the presumption  "must yield to the presumption that the addressee, who positively swears that he did not receive it, is swearing the truth, unless some additional circumstance exist to impeach or discredit his statement and to show that perhaps he is not testifying truly." xi  For example, a return receipt signed by the recipient may discredit or impeach the recipient's testimony that he or she never received a letter.

A letter addressed and delivered to a business rather than an individual may, however, require more to rebut the presumption than an individual's testimony that he or she did not receive the letter.xii  For example, the Court of Appeals in Sullivan Enterprises v. Stockton held that "[t]estimony by two officers of the corporation that such notice was not received by either of them is not testimony that the corporation did not receive the notice."  In such a case, every employee who receives mail at the business may need to testify that they did not receive the letter to overcome the presumption.

Testimony that the intended recipient does not remember receiving a letter may be sufficient to rebut the presumption, but the rebuttal will be subject to whether the court or jury finds that such testimony is credible in light of the evidence showing that the letter was properly addressed with sufficient postage and provided to the postal service for deliver.xiii

Refusing to accept delivery of a letter does not avoid the presumption because "[a] refusal to accept a letter delivered to the proper address with adequate postage is the equivalent of receipt of notice." xiv  As a result, to overcome the presumption of receipt the person that was the intended recipient of a letter must show that it neither received nor willfully refused to receive the letter. xv

Georgia's courts have yet to determine whether the presumption applies to e-mails properly addressed and sent; however, Georgia has applied the presumption to other types of communications.xvi

In addition, the Federal District Court for the Northern District of Georgia, interpreting Georgia law, recently held that the intended recipient's statement that she "do[es] not recall ever receiving that email" was not sufficient to overcome the presumption that she received the email and attachments. When [the sender] has produced evidence showing that it sent an item properly mailed, or in this case emailed, there arises a rebuttable presumption that it was received by the addressee. This presumption cannot be overcome merely by stating in an affidavit that the [intended recipient] never received the [email]."xvii

As the United States Court of Appeals for the Eighth Circuit explained:

[A] presumption of delivery should apply to e-mails. A jury is permitted to infer that information sent via a reliable means – such as the postal service or a telegram – was received. We have held that there is no principled reason why a jury would not be able to make the same inference regarding other forms of communication — such as facsimiles, electronic mail, and in-house computer message systems — provided they are accepted as generally reliable and that the particular message was properly dispatched.xviii

In sum, a contractor should take measures to avoid the proof problems of providing timely notice by adopting and adhering to a business practice of obtaining either the owner's signature on a hand-delivered notice, or a delivery receipt on a notice sent by certified, registered, statutory overnight, or electronic mail; otherwise, the contractor runs the risk that the owner may deny receipt and rebut the presumption that timely notice was given.


i Western Surety Co. v. Georgia Dept. of Trans., 757 SE 2d 272, 326 Ga. App. 671 (2014).

ii See, e.g., AIA Document A201-2007, §13.3.

iii Lovell v. Thomas, 279 Ga. App. 696, 632 S.E.2d 456 (2006).

iv Paul S. Milich, Courtroom Handbook on Georgia Evidence, at 539 (Thomas Reuters ed. 2015).

v Id.

vi First Bank of Georgia v. Robertson Grading, 328 Ga. App. 236, 761 S.E.2d 628, 636 (2014) (footnote 21).

vii W.T. Rawleigh Medical Co. v. Burney, 25 Ga. App. 20, 102 SE 358 (1920).

viii Rosenthal v. Walker, 111 U.S. 185, 193-94 (1884).

x Laborers' International Union Of North America, Local 578 v. NLRB, 594 F.3d 732 (10th Cir. 2010).

x Menke v. First Nat'l Bank of Atlanta,  168 Ga. App. 495,  309 SE2d 835 (1983) (citing W.T. Rawleigh Medical Co., 25 Ga. App. at 21).

xi Parker v. Southern Ruralist Co., 15 Ga. App. 334, 337, 83 SE 158 (1914).

xii Carmichael Tile Co. v. D.W. McClelland, 213 Ga. 656, 100 S.E.2d 902 (1957) (testimony that partner did not receive letter failed to overcome presumption because other partner might have received letter); Sullivan Enter. v. Stockton, 118 Ga. App. 542, 543, 164 S.E.2d 336 (1968).

xiii Ennis v. Atlas Fin. Co., 120 Ga. App. 849, 172 S.E.2d 482, 484 (1969).  But see Vines v. Citizens Trust Bank, 146 Ga. App. 845, 847-48 (1978) (presumption rebutted by testimony that borrower did not remember receiving notice that Bank would strictly enforce loan terms).

xiv Crenshaw v. GA. Underwriting Ass'n, 202 Ga. App. 610 (1992).

xv Edmondson v. Air Svc. Co., 123 Ga. App. 263, 180 S.E.2d 589 (1971).

xvi Abercrombie v. Georgia Distributing Co., 43 Ga. App. 258 (3), 158 S.E. 530, 531 (1931)  (evidence telegram delivered to messenger boy of telegraph company did not establish presumption because there was evidence that the charge for sending the telegraph was paid).

xvii Dixon v. Synchrony Financial, 2015 WL 12720290 at *5 (N.D.. Ga. Aug. 18, 2015) (citing  Corbin v. Affiliated Computer Services, Inc., 2013 WL 3804862, at *6 (M.D. Fla. July 19, 2013); Dixon v. NBC Universal Media, LLC, 947 F. Supp. 2d 390, 400 (S.D. N.Y. 2013); Abdullah v. American Express Co., 2012 WL 6867675, at **4-5 (M.D. Fla. December 19, 2012).

xviii American Boat Co., Inc. v. Unknown Sunken Barge, 418 F.3d 910, 914 (8th Cir. 2005).  See also Dempster v. Dempster, 404 F.Supp.2d 445 (E.D. NY 2005).  But see Glenn Constr. Co., LLC v. Bell Aerospace Serv., 785 F.Supp.2d 1258 (M.D. Ala. 2011) (declining to extend the presumption to e-mails absent evidence that the State of Alabama would do so).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions