The principle of free appreciation of evidence (see para. 25 above) greatly restricts the scope of the German law of evidence. It deals only with the burden of proof, the various kinds of evidence and the procedure by which evidence is presented to the Courts. Instead of being dealt with in compendious volumes, as in English law, the law of evidence in Germany is treated in a few pages of the textbooks on Civil law procedure.
Each party must prove those facts which gave rise to the rights on which the party relies. The burden of proof of such facts is called Beweislast.
The burden of proof depends therefore in the first instance upon the substantive law. This specifies the facts required to bring a right into existence.
The BGB uses a special technique for this purpose, on which see vol. 1, part 1, para. 98, p. 33.
The court may draw conclusions of fact from certain typical events which lead to a shifting of the burden of proof. If the plaintiff has proved facts which permit that inference that the further facts on which the plaintiff seeks to rely are true (prima facie evidence), the court may require no further proof from the plaintiff and call upon the defendant to rebut such of the plaintiff's evidence as has been heard.
EXAMPLE: Ships A and B collided in the Elbe. Ship B sank and its entire crew lost their lives. The captain of ship A had in contravention of existing regulations omitted to post a look-out man at the back of his ship. This is prima facie evidence of a fault on his part which has caused the accident;
RGZ 76, 295.
Substantive law contains a number of presumptions, but these are all open to rebuttal.
EXAMPLE: A has been declared to have died on 9 July, 1946, by the Amtsgericht Bonn (see vol. 1, part 1, para. 109). This established a presumption that he died on that day. It is permissible to prove that he lived in fact on 3 August, 1947.
If the amount of damage or the amount of other disputed pecuniary claims cannot be easily ascertained, the court may assess it in its free discretion; section 287, ZPO.
Facts which are admitted by the other party in general require no proof. Exceptions to this rule apply in the divorce cases and certain other matters, notably cases affecting status, where the Court has a duty to make investigations on its own account.
The facts on which evidence is to be taken, as well as the witnesses and experts who are to be heard are, as a rule, specified in a special 'order on evidence' (Beweisbeschluss); section 358, ZPO. This order usually forms the first important step in...
SECTION XVIII - Evidence
|Author:||E. J. Cohn and G. Meyer|
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