Periodically I inflict on you my musings regarding notices-provisions terminology. (See this August 2009 AdamsDrafting blog post on why I’ve opted for “national transportation company,” and see this March 2009 AdamsDrafting blog post on why I refer to “fax.”) Well, it’s now time for me to address another such cataclysmic issue.
I’ve never been crazy about the phrase “personal delivery.” It’s a bureaucratic abstract-noun take on the idiomatic “deliver in person” and “deliver personally.” Those phrases convey that the author of a bit of correspondence will be the one to deliver it. For purposes of contract notices, that doesn’t make much sense. For one thing, if the person entering into the contract is a legal entity, it won’t be capable of delivering anything personally. And even if the contract party is an individual, it’s not necessarily the case that he or she would be the one dropping off a notice at Acme’s offices.
Instead, what the phrase “personal delivery” seeks to convey is that a contract party may make its own informal arrangements for delivery rather than delegating the task to a transportation company. I suggest that the phrase “deliver by hand” expresses that meaning more clearly.
I would opine that “personal delivery” could include virtually any vehicle of delivery including but not limited to email, UPS, FedEx, a confirmed fax, etc. I occasionally see these references in statutes and I prefer that it the legislative intent is service by “deliver by hand” then that phrasing should be used.
I think the problem here is in the nature of the service. I can’t speak for other judicial systems but in Slovenija (and most of the EU), there are a few options for mail delivery and certain court papers have to be delivered “personally”, that means that the actual person that gets the letter must be the recipient and that the recipient must sign the delivery. It also means that if the recipient can’t be found at the address, a notice is left in their inbox, where the delivery can be taken and a 15 day period to do that. If in that perioud the letter is not picked up (at a post office usually) it is a legal presumption, that the delivery has been made on the next day. There are of course more exceptions and other rules, but “personal delivery” has other meanings in different judicial systems and important implications.
If the intent is “personal service,” then “by hand” is actually just as ambiguous as “personally delivered,” if not worse.
Believe it or not, I’ve come across officious people who claim in bad faith that dropping correspondence off in a unsecured mailbox at a home fulfills the obligation in clear defiance of intent that the notice is personally delivered *on* the person.