Prima facie evidence

The prima facie evidence (also: proof of the first appearance , prima facie evidence ) is a method of indirect evidence . Based on empirical statements, it allows conclusions to be drawn from proven facts to facts that have to be proven. The classic applications of prima facie evidence are the determination of causality and culpability in civil proceedings.

There is no legal definition in Germany. However, the law occasionally refers to prima facie evidence (such as Section 371a of the German Code of Civil Procedure for qualified electronic signatures ). The legal nature of prima facie evidence is still controversial today. There is also no standardized terminology in Switzerland or Germany. It is spoken of apparent evidence, prima facie evidence or even of actual assumption. A recognized dogmatic reappraisal is missing in both teaching and jurisprudence.

Requirements for prima facie evidence

If the prevailing theory of evidence is followed, a prima facie evidence is assumed to be empirical evidence that is strong enough to justify the court's full conviction of a particular course of events, even if not all details of the facts of the case could be determined. A certain typicality of the course of events to be proven is regularly assumed .

If one follows the theory of the measure of evidence advocated by a minority, the following requirements must be met for prima facie evidence (list according to Schlauri):

a lawsuit threatens to fail due to a symptomatic lack of evidence from both parties for the applicable norms (contractual or legal nature),
this regularly calls into question the purpose of the law or contract,
the evidencing party has taken the measures that can be reasonably expected of him in good faith to secure evidence, and
the facts to be proven are at least predominantly probable, whereby the degree of evidence actually required depends on the possibilities of the evidencer in the individual case.

Refutation of prima facie evidence

The prima facie evidence can be shaken by presenting and proving facts that justify the possibility of a different (atypical) course of events in individual cases. In particular, no proof to the contrary is required.

The party benefiting from the prima facie evidence must then try another way to convince the court of the truth of their factual presentation.

Dogmatic classification

The dogmatic classification of the prima facie evidence is still controversial today. In particular, a theory of the burden of proof, a theory of the evaluation of evidence and a theory of the measure of evidence are represented.

Burden of proof theory

According to the so-called burden of proof theory , the older German literature in particular assumed that the burden of proof would be reversed by an empirical statement that was suitable for prima facie evidence .

Rules on the burden of proof determine how the court has to decide in the event of lack of evidence (“ non liquet ”). While a rule on the burden of proof determines the burden of proof independently of the evidence of actual prerequisites, evidence of a basis is necessary for the prima facie evidence to take effect: For example, in the case of debit card misuse, the bank must first prove that a transaction with the corresponding card and PIN was triggered, and that your system was equipped with the security mechanisms that were reasonable for you. If the prima facie evidence is successful, the court decides accordingly on the basis of the evidence giving rise to pretense, i.e. In other words, there is no “non liquet”. If the invalidation is proven, there is again a “non liquet” so that the original rules on the burden of proof apply. This speaks against the burden of proof theory.

One explanation for the theory of the burden of proof could also lie in the mixing of the concepts of the objective burden of proof and the burden of proof . While the objective burden of proof is not affected by the prima facie evidence, this of course reverses the burden of proof.

Evidence Valuation Theory

According to the predominant doctrine and jurisprudence in Switzerland and Germany, it is assumed that prima facie evidence relates to the manner in which judicial evidence is assessed . In particular, prima facie evidence therefore neither changes the burden of proof nor a reduction in the requirements for evidence. There is also talk of evidence-appraisal theory .

According to the theory of evidence , the prima facie evidence differs from circumstantial evidence in that it is less intensive. In the case of circumstantial evidence, an overall assessment of all details of the facts is required in order to draw the conclusion that a fact cannot be directly ascertained. In contrast, in the case of prima facie evidence, an overall consideration of the facts is sufficient. It is not necessary to clarify all the details of the matter. The lower intensity of clarification in the case of prima facie evidence is justified by the higher demands on the underlying rules of life experience.

However, doubts are also expressed in the literature about the theory of evidence. It is argued that "prima facie evidence" in this form is nothing more than an actual presumption . (Such is when a court in an indirect evidence based on proven facts and experience sets the full conviction can range from a situation to win; the terminology is uncertain here.) Especially, in the cases of rear-end collision and debit cards - However, the court had doubts about abuse so that, strictly speaking, one could no longer speak of full conviction. This applies all the more to the case with the registered letter, in which the court refused to admit prima facie evidence on the grounds that the evidencing party had not taken reasonable measures to preserve evidence, because taking measures to preserve evidence had nothing to do with a court's degree of conviction.

Evidence theory

In the cases of medical liability and debit card misuse, there was obviously a move away from the requirement of full conviction by the court and thus a reduction in the level of evidence to a predominant probability or to mere credibility . The corresponding classification of prima facie evidence , which is in the process of advancing in the literature, is commonly referred to as the theory of the measure of evidence .

In Switzerland, arguments are made in a similar way when the natural causal connection is proven (sometimes with explicit reference to prima facie or prima facie evidence). Accordingly, it must be sufficient if successes of the kind in question are normally caused by a cause like the one established or, conversely, if events like that to be judged normally produce successes like the one in question, so that other causes are unlikely to be thought of.

The concept of prima facie evidence used by the advocates of the theory of evidence mixes two different aspects of the evidence, according to the supporters of the theory of evidence: In one group of cases (ship collision case and the like) the court is fully convinced by evidence that there is some behavioral behavior. It is unclear only, which of various possible things, standards behavior exactly was present. Nevertheless, based on the evidence, the court is fully convinced of the factuality . In these cases, the procedure is an actual guess , so the concept of prima facie evidence should be avoided. In a second group of decisions (rear-end collision case, medical liability case, EC case), the evidencer is in need of evidence, and the standard of evidence is lowered in order to still enable him to provide evidence because the meaning and purpose of the applicable laws or contracts could not be achieved at all without a reduction in the standard of evidence. Only here, according to the theory of the measure of proof, should one speak of prima facie evidence.

Casuistry

Ship collision

If it is proven that a ship was anchored in a suitable place on the bank of a river (i.e. in such a way that a sufficiently wide fairway remained), German judicial practice assumes the fault of the driver of a colliding ship in the event of a collision, because experience has shown that it is at fault a typical course of events every conceivable behavior of the skipper would have been at fault. The courts are content with the fact that there was some culpable behavior, and the difficult evidence of the actual course of events is dispensed with. Based on this and similar cases, the prima facie evidence in the German shipping process was developed from old rules on the burden of proof.

Car accidents

The practice of German courts in rear-end collisions in road traffic is very similar. As a rule, there is also a lack of precise knowledge of the course of events, which is why the fault cannot regularly be proven, and in this case, too, the court is considering whether the driver is not at fault "at first sight". The empirical principle helps that the driver of the colliding vehicle typically neglected the care required in traffic, i.e. was inattentive, or did not keep the required distance or drove too fast. Here, too, some kind of culpable behavior is assumed in the event of a collision .

If a vehicle comes off the lane and damage occurs as a result (e.g. pedestrians, garden fences), according to the case law, prima facie evidence against the driver can be assumed: Either he was driving too fast or too inattentive; in both cases there is then a fault. The driver of the vehicle must then refute this prima facie evidence, B. in the event of a technical defect in the vehicle for which the vehicle driver is not responsible or an evasive maneuver (obstacles on the road).

Jurisprudence also concludes that there is fault in the form of negligence in the case of accidents in the context of overtaking without sufficient lateral clearance. If a vehicle collides with the flow of traffic immediately after entering the lane, the prima facie evidence speaks for the fault of the entrant; the same applies to accidents with flowing traffic after leaving a parking lane.

Medical Liability

In the decision of the Swiss Federal Court , a doctor had injected a patient with cortisone to treat shoulder problems. The injection triggered severe inflammation with disability, which was attributed to the lack of sterility of the syringe, despite the lack of concrete evidence. If a (new) health impairment is caused by medical treatment and the possibility of negative effects of the treatment was recognizable, the Federal Supreme Court believes that there is an “actual presumption” that not all necessary precautions have been taken and that there is an objective breach of duty of care. According to the Federal Supreme Court, this presumption serves to "facilitate evidence."

registered letter

The owner of a truck (defendant) was insured against liability with an insurance company (plaintiff), but had not paid a quarterly premium. After the truck caused an accident, the plaintiff claimed to have sent the defendant once a registered letter in the form required by law and later reminded him to pay a second time, but no payment was received. At the time of the accident, there was no longer any insurance coverage. The defendant denied receipt of the letters. At first glance, the lower court had considered receipt of the letters as proven because the plaintiff had been able to prove that they had been sent. The Federal Court of Justice , however, demanded full evidence for proof of access. This was initially justified with the argument that, even under normal circumstances, it happens again and again that letters sent, including registered letters, do not reach the recipient after experience in daily life (266.3 reported losses were recorded per million items) which is why the typicality required for the assumption of prima facie evidence cannot be affirmed. Furthermore, the admission of prima facie evidence would mean to impose on the recipient the evidence of the lack of access, which is usually not necessary at all, which would amount to equating the access with the abandonment of the consignment, which in turn would contradict the wording of Section 130 BGB , which stipulates the Requires access. In addition, there is no need for such a deviation from the wording of the law, because the sender has it in his hand to formally deliver or to request a return receipt. The sender therefore has sufficient means at his disposal to ensure that he is responsible for providing evidence of access from the outset and it is by no means unreasonable to let him bear the risk of evidence.

Misuse of a debit card

A pensioner had never used her debit card . After several cards were stolen from her handbag, amounts were withdrawn over a period of several days until the plaintiff - after noticing the theft - had the card blocked.

The Frankfurt Regional Court assumed that the system used was sufficiently secure. It must therefore be assumed that the customer negligently disclosed her PIN . In such a case, according to German case law, the bank is typically faced with the difficulty of not being able to provide full evidence that the PIN was stored carelessly. However, this must not mean that a customer can regularly pull himself out of the affair by simply claiming that the card was stolen from him. For this reason, the bank is regularly given prima facie evidence of careless storage of the PIN by the customer, provided that the system operator has taken all reasonable security precautions.

Illegal possession of narcotics in not inconsiderable quantities

If illegal narcotics are found in the possession of a suspect in "not insignificant quantities" (for example 1 kilogram of heroin), according to current case law, this may be assumed to have an intention to trade via prima facie evidence, since possession for personal use - with such a quantity - is considered to be excluded.

Employee performs agreed work

In the opinion of the Nuremberg Regional Labor Court, the employee can benefit from prima facie evidence in a dispute over the amount of remuneration: namely, there is the empirical principle that an employee also performs his work to the contractually agreed scope. This applies in any case if the employee has undisputedly performed his contractual work for a relatively not insignificant period (here: 1 month).

Training literature

Volker Stück: The prima facie evidence. In: JuS 1996, 153 ff.

literature

Taking evidence and assessing evidence , civil law trainer from Professor Moritz, University of Hamburg
Basis for the revision of this article on August 24, 2006: Simon Schlauri, Electronic Signatures, Diss. Zurich 2002, N 587 ff. (PDF; 4.0 MB).
Karl-Werner Dörr: The prima facie evidence in the traffic accident process. In: Monthly for German Law . 64, 20, 2010, pp. 1163-1168.
Gudrun Engels: The prima facie evidence of causality. With special consideration of recent case law. Lang, Frankfurt am Main et al. 1994, ISBN 3-631-47288-9 ( European university publications . Series 2: Law 1563), (At the same time: Passau, Univ., Diss., 1993).

Reinhard Greger : Proof and Probability. The evidence criterion in general and the so-called easing of evidence. Heymann, Berlin et al. 1978, ISBN 3-452-18486-2 ( Erlangen juristische Abhandlungen 22), (At the same time: Erlangen, Nürnberg, Univ., Diss., 1978).

Reinhard Greger: Practice and dogmatics of prima facie evidence. In: VersR . 45, 1980, pp. 1091-1104.

Isaak Meier: The standard of evidence - a current problem in Swiss civil procedural law. In: Basler Juristische Mitteilungen. 2, 1989, ISSN 0522-456X , pp. 57-78.

Tobias Mühlenbrock: Prima facie evidence in electronic legal transactions - Verlag Dr. Kovač, Hamburg 2017, ISBN 978-3-8300-9731-0 .

Christoph Markus Müller: Prima facie evidence in criminal proceedings using the example of establishing causality and predicates of disposition. Duncker and Humblot, Berlin 1998, ISBN 3-428-09490-5 ( Writings on procedural law 144), (Also: Freiburg (Breisgau), Univ., Diss., 1997/98).

Hanns Prütting: Present problems of the burden of proof. An examination of modern theories of burden of proof and their application especially in labor law. Beck, Munich 1983, ISBN 3-406-09846-0 ( publications of the Institute for Labor and Business Law of the University of Cologne 46), (at the same time: Erlangen, Nürnberg, Univ., Habil.-Schr., 1981).

Oliver Rummy: The prima facie evidence in the structure of evidence assessment, standard of evidence and burden of proof. Heymann, Cologne et al. 1989, ISBN 3-452-21357-9 ( Proceedings Law 71), (Simultaneously: Saarbrücken, Univ., Diss., 1988).

Helmut Rüssmann: Liability issues and risk distribution in the event of ec card abuse. In: DuD . 7, 1998, pp. 395-400.

Heinz Wassermeyer: The prima facie evidence and the neighboring phenomena. A study of the legal meaning of empirical sentences. Aschendorff, Münster 1954 ( Aschendorff's legal handbook 41, ZDB -ID 261168-5 ).

Individual evidence

↑ OLG Hamm, judgment of January 31, 1972 , Az. 13 U 140/71 = OLG Hamm, VersR 1972, 1033.

↑ OLG Celle, VersR 1974, 496; OLG Düsseldorf VersR 1975, 956 f.

↑ BGH NJW 1975, 312 f.

↑ OLG Celle NJW-RR 2003, 1536.

↑ OLG Frankfurt VersR 1982.

↑ BGE 120 II 248.

↑ BGHZ 24, 308 ff.

↑ Tobias Mühlenbrock: The prima facie evidence in electronic legal transactions Origin - requirements - applicability . 1st edition. Dr. Kovac, Hamburg 2017, ISBN 978-3-8300-9731-0 , p. 314 ( verlagdrkovac.de ).

↑ LG Frankfurt, judgment of May 12, 1999 ( Memento of the original of July 13, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Az. 2/1 S 336/98, full text. @1@ 2

^ LAG Nuremberg, judgment of April 9, 2002, Az. 7 Sa 518/01, Rn. 29

[1] OLG Hamm, judgment of January 31, 1972 , Az. 13 U 140/71 = OLG Hamm, VersR 1972, 1033.

[2] OLG Celle, VersR 1974, 496; OLG Düsseldorf VersR 1975, 956 f.

[3] BGH NJW 1975, 312 f.

[4] OLG Celle NJW-RR 2003, 1536.

[5] OLG Frankfurt VersR 1982.

[6] BGE 120 II 248.

[7] BGHZ 24, 308 ff.

[8] Tobias Mühlenbrock: The prima facie evidence in electronic legal transactions Origin - requirements - applicability . 1st edition. Dr. Kovac, Hamburg 2017, ISBN 978-3-8300-9731-0 , p. 314 ( verlagdrkovac.de ).