Legal definition and principles

The burden of proof is a fundamental legal institution in civil procedural law that determines which party bears the risk of losing the case if crucial facts cannot be proven. In civil procedural law, Rosenberg’s formula generally applies, according to which each party bears the burden of proof for the facts that establish facts favorable to its legal position. The principle of the burden of proof is deeply rooted in the principles of the rule of law and ensures a fair legal dispute. The objective burden of proof determines which party has to bear the negative consequences of a failure to provide evidence. The subjective burden of proof defines who is obliged to make a substantiated presentation and provide evidence. Procedural law distinguishes between the formal and material burden of proof. The formal burden of proof regulates the course of proceedings, while the material burden of proof determines the outcome of the case. The allocation of the burden of proof is a key instrument for establishing legal certainty and fairness in individual cases.

Burden of proof in various areas of law

In different areas of law, the burden of proof rules vary according to the specific interests involved. In the law of obligations, the creditor typically bears the burden of proof for the creation of a claim, while the debtor has the burden of proof for fulfillment or extinguishment. Sales law has specific rules on the burden of proof, for example in the case of material defects within the warranty period. In employment law, modified rules on the burden of proof apply, which provide special protection for employees. Family law develops its own burden of proof constellations that take into account the special features of family legal relationships. The Code of Civil Procedure provides a framework for the allocation of the burden of proof, while substantive law defines the specific allocation criteria. Over decades, case law has developed differentiated rules on the burden of proof that reconcile fairness in individual cases with legal certainty.

Reversal of the burden of proof as a procedural instrument

The reversal of the burden of proof is an important legal instrument that deviates from the standard distribution of the burden of proof. In certain areas of law, the burden of proof is deliberately shifted in order to guarantee the interests of protection. In consumer protection law, for example, the burden of proof is reversed in the case of material defects within the first twelve months of purchase. In employment law, the burden of proof is reversed in cases of discrimination. In medical law, the doctor bears the burden of proof for compliance with treatment standards. The reversal of the burden of proof serves to balance out structural information asymmetries and protect weaker contracting parties. It requires careful legal consideration and is only applied in clearly defined case constellations.

Digital challenges of the burden of proof

Digitalization poses new challenges to the traditional burden of proof concept. In blockchain technology, new burden of proof constellations are emerging through decentralized and unchangeable documentation systems. Digital evidence such as emails, chat logs and transaction logs are fundamentally changing the burden of proof. Artificial intelligence and automated systems require new legal interpretations of the burden of proof. Software developers and lawyers must work together to develop solutions for digital burden of proof issues. Jurisprudence faces the challenge of transferring traditional burden of proof principles to digital matters. Blockchain technologies offer new possibilities for documenting evidence that call traditional burden of proof concepts into question.

Litigation strategies and burden of proof

The burden of proof is a central strategic element in civil proceedings. Lawyers must already consider the allocation of the burden of proof in the statement of claim. A successful litigation strategy requires a precise analysis of the rules on the burden of proof. The burden of proof obliges the parties to present their factual allegations in a substantiated and complete manner. Incomplete or imprecise factual submissions can be detrimental to the proceedings. Evidence must be presented in a targeted and efficient manner. Modern litigation strategies use digital evidence and technology-supported methods of presenting evidence. Case law is continuously developing principles for the assessment of evidence and the distribution of the burden of proof.