Burden and means of proof
Who proves, what and how: the burden of proof, presumptions, the five means of proof, free proof and written proof, and the fairness of evidence.
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Burden of proof: what is it?
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The obligation on the party who asserts a fact to establish that it exists; failing that, she loses on that point.
Doubt benefits whoever has nothing to prove. The judge does not look for the evidence in the parties' place: it is for them to bring it.
A provider claims payment of an invoice, and the customer says it has already been paid. Who must prove the payment?
- The customer, who claims to be discharged
- The provider, who must prove that no payment was made
- The judge, who must look for the truth himself
- Both parties, each for half
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The customer, who claims to be discharged
The provider proves the debt, the customer proves he discharged it. Asking the provider to prove non-payment would impose a negative proof on him.
Under article 1353 of the Civil Code, whoever … performance of an obligation must prove it; whoever claims to be … must show the payment or the fact that extinguished it.
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Under article 1353 of the Civil Code, whoever claims performance of an obligation must prove it; whoever claims to be discharged must show the payment or the fact that extinguished it.
Each proves what he asserts: the creditor proves the obligation, the debtor proves he discharged it. Proving a negative would be next to impossible, hence this division.
Rebuttable presumption: what is it?
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A fact held to be true until the opponent proves the opposite.
It shifts the burden of proof. An irrebuttable presumption cannot be overturned: no contrary evidence is admitted.
An employee produces in court a recording made without his employer's knowledge. What becomes of it?
- It is excluded outright: any evidence gathered unfairly is inadmissible in all circumstances whatsoever
- It is not automatically excluded: admitted if essential to the right to evidence and proportionate
- It is admitted without condition, since proof is free
- It is admitted only if the employer agrees
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It is not automatically excluded: admitted if essential to the right to evidence and proportionate
Since 2023, unfair evidence is no longer excluded outright: the judge checks that it is essential to exercising the right to evidence and that the interference with opposing rights stays proportionate.