Shifting the burden of proof

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The reversal of the burden of proof is an exception to the legal principle that in principle each party bears the burden of proof for the actual requirements of the legal norm that is favorable to them . The burden of proof remains with each party .

A reversal of this principle regarding the burden of proof results in part expressly from the law .

Legal regulations

For example, Section 477 of the German Civil Code (BGB) states that, in the event of damage to an item within six months of the transfer of risk , it is assumed that the item was defective before the transfer of risk, provided that it is a sale of consumer goods . This means that in the event of a complaint, the seller must prove within six months of purchase that the item was free of defects at the time of purchase. If this standard did not exist, the buyer would have to prove that the defect already existed when the risk was passed, since he invokes this fact as a prerequisite for a claim. However, it should be noted that the burden of proof regarding the defect continues to be borne by the buyer. He has to prove that the matter is flawed.

Further statutory rules on the burden of proof can be found in Section 363 BGB and Section 2336 Paragraph 3 BGB.

There are also judicial rules for reversing the burden of proof. In particular, in cases of doctor and producer liability, case law applies a reversal of the burden of proof under certain conditions.

Medical Liability

In many cases, the plaintiff is typically in need of evidence. In the case of doctor's liability , he can often prove the doctor's treatment error; However, the causality between treatment error and damage can only be proven with difficulty, since the consequences of an intervention in the living organism can only very rarely be traced with absolute accuracy. The patient must first explain the significant treatment error, usually by submitting an opinion from a medical expert . The court decides whether there is a gross medical error. Due to the reversal of the burden of proof ordered by the judge in certain cases, including gross malpractice, it is up to the doctor to prove the lack of causality.

The typical conditions for a judicial order to reverse the burden of proof are:

  • Failure to provide information to the patient prior to the start of the specific diagnosis or treatment and lack of evidence
  • failure to collect findings
  • obviously incorrect treatment, i.e. gross treatment errors and also medication errors
  • Transmission of germs through infection in a controllable area
  • Use of faulty devices, incorrect or undocumented device settings or neglected device maintenance (expired test mark periods)
  • Incomplete or falsified documentation, including subsequent changes or allegedly lost documents and unsecured or unregistered access to change options in databases of the case files

In doing so, the injured party must regularly assume, according to the state of the art of the professional or company liability insurance, that the reversal of the burden of proof will only be ordered in court proceedings.

For example, in connection with the STIKO vaccination recommendations, the doctor must then prove that the disease would have occurred if these vaccination recommendations had been followed. The background is that the STIKO is set up as an official body in accordance with Section 4 of the Infection Protection Act (formerly: Federal Infection Protection Act).

Product liability

In the case of product liability , the injured party only has to prove that one of his legal interests has been violated and that he has suffered damage as a result, that the manufacturer has brought a defective product into circulation, and that there is a causality between the defective product, infringement of legal interests and damage. With regard to the question of whether the manufacturer is to blame for the defectiveness of the product, there is an unreasonable need for evidence for the injured party. A reversal of the burden of proof is therefore assumed here. The manufacturer must now prove that the product was free of design, manufacturing and instruction errors when it was placed on the market.

The cases of the statutory presumption (e.g. in § 1006 BGB) have a similar effect as the reversal of the burden of proof . Their effects on the burden of proof are regulated in § 292 ZPO . Then the person against whom the presumption speaks can still prove the opposite. He thus bears the burden of proof to refute the presumption. Statutory presumptions therefore usually result in a reversal of the burden of proof.

The cases of prima facie evidence are, however, something different than the reversal of the burden of proof .

See also

Individual evidence

  1. ^ BGH, judgment of June 28, 1988, Az. VI R 217/87, guiding principle
  2. BGH, judgment of January 8, 1991, Az. VI ZR 102/90, full text = VersR 1991, 467 ff.
  3. BGH, judgment of March 20, 2007, Az. VI ZR 158/06, full text = NJW 2007, 1682 ff.