Fact is an indefinite legal term that occurs in laws but is not defined there . Facts are sensually perceptible processes or states from the present or the past. Facts within the meaning of Criminal Code (fraud through the pretense of false or through distortion or suppression of true facts) are concrete states or events from the present and the past that are accessible to evidence .
- External facts relate to something external, perceptible, real; this includes in particular the properties of physical objects or people. This includes, for example, the authenticity of a work of art, the quality or marketability of a thing, age, income, physiological state of health, skills and qualifications of a person.
- Internal facts relate to mental states such as the will to perform a service of the contractual partner who is obliged to provide advance payment. It should be noted that current intentions, motives, ideas or beliefs with regard to future events are also included. In this way, future events are partially (also) included in the concept of facts. According to case law, it is sufficient for provability if the perpetrator gives the victim the impression that the facts in question exist.
Assertions of fact are statements about facts that have not yet been verified. In civil proceedings too , facts are the essential basis on which a judgment is based. Section 291 of the German Code of Civil Procedure stipulates that facts known to the court do not require any proof. Obvious are general facts, i.e. knowledge that practically everyone can have. General knowledge are facts that anyone can reliably find out from generally accessible sources of information (encyclopedias, books, maps, the Internet, etc.) . The court itself officially perceived facts with legal knowledge . Traffic perception is empirical knowledge, however , ZPO only concerns facts and not empirical sentences. Facts that the court has perceived in an official capacity (the information provided by the party in other proceedings before the same court, the content of the files consulted or the judge's special expertise) are known to the court. He may not use the judge's private knowledge; to this extent he is a witness and leaves the proceedings ( No. 5 ZPO). The facts on which a judicial decision is based result from the party’s presentation. Facts must therefore be presented by the parties. Facts that are beyond dispute between the parties are deemed to be true. In federal German commercial law , the concept of fact is to be understood broadly, because everything that is required to be entered in the commercial register belongs to the facts.
The mere expression of opinion or a pure value judgment , as communication of subjective evaluations, represents the opposite of the concept of fact. The problems of demarcation are exemplified by advertising statements. The public opinion of the respective public decides whether there is still a tangible core of facts in advertising. The statement: “It couldn't be better” is not an assertion of a factual core, since it lacks the character of a seriously made assertion. The expression of mere legal opinions (e.g. one has a purchase price payment claim) is a "should and not a statement of being" and should therefore be treated as a value judgment. Here, only the legal assessment of an (undisputed) life issue is made.
In Switzerland, facts are identifiable events that have taken place in the past. Facts that take place in the future can be made plausible by drawing an inference from past facts. This is an essential difference to German law, which knows facts only as a term that relates to the past and the present.
A distinction is made between main and auxiliary facts.
- The main facts are circumstances that directly fill in the abstractly formulated fact of a norm from which a party seeks to derive a legal consequence for itself. The elements required for the specific case are determined directly. For example, a postal receipt or a receipt is direct evidence that an application to the court was received by the court on the last day of the deadline or at least that it was handed over to Swiss Post. The issuance of the postal receipt is a key factor in proving timely submission. Often standards contain vague legal terms such as "immoral" or "negligent". In this case, facts must be proven that allow the conclusion that the indefinite legal term has been fulfilled in the specific case.
- The existence of a main fact can be concluded from auxiliary facts (circumstantial evidence) . For example, the mention of a petition to the court (without being aware of any subsequent difficulties in proving evidence) is a strong indication that such a petition was made. In this case, the judge renounces direct evidence of a fact by deducing its existence - based on the usual course of things - from other facts, the so-called circumstantial evidence. The judge presumes that the fact is given because this conclusion is imposed on him in view of the other circumstances created on the basis of his life experience. According to the case law of the Federal Supreme Court, circumstantial evidence is based on actual assumptions that serve to facilitate evidence. Actual presumptions are not rules on the burden of proof, but are fundamentally part of the assessment of evidence, which the Federal Supreme Court cannot review in appeal proceedings.
The term fact also occurs frequently in Austrian criminal law, for example in Sections 193 (deception), 229 (suppression of documents), 230 (1) (displacement of boundary marks) or 255 (state secret) ÖStGB. In terms of content, it corresponds to the concept of a fact in German criminal law.
Theology and philosophy
Gotthold Ephraim Lessing provides a first overview of the word fact , which appeared in German in the 18th century, in the text About the word fact in 1778 . It was first used in the theological question of whether Christianity could refer to real events, namely facts. It was introduced by Johann Joachim Spalding as a translation of the English expression matter of fact ; it can be found in his translation of Joseph Butler's The analogy of religion, natural and revealed, to the constitution and course of nature from 1756. Butler and Spalding refer to the Expression on God: Facts are events that are understood as actions of God.
With Gottfried Wilhelm Leibniz factual truths (vérités de fait) are contrasted with rational truths (vérités de raison). Here, as with David Hume, facts represent real results of experience . Mathematical truths are not one of them.
In the Critique of Judgment, Immanuel Kant differentiates between "things of opinion (opinabile), facts (scibile) and beliefs (mere credibile)" ( Immanuel Kant: AA V, 467 ) as types of objects of knowledge . This division essentially corresponds to his distinction from Belief, Knowledge, Opinion in the Critique of Pure Reason (Immanuel Kant: AA III, 531), facts are accordingly the objects corresponding to the epistemic state of knowledge . For Kant, belief, knowledge and opinion are attitudes towards connections of ideas or judgments, which differ in whether the reasons for which they are held to be true are objective-general (inherent in the matter, equally convincing for all reasonable beings), subjective-general (convincing from an interest that necessarily all reasonable beings share), belief or subjective-particular (persuasive and convincing based on personal experiences and interests), and whether these reasons are sufficient for the truth of the judgment in question. In doing so, Kant expects the cognitive subject to also reflect on the reasons for his belief that he is true, so that the area of opinion (belief that he is true for objectively and subjectively insufficient reasons) is limited to the area of possible experience. On the other hand, facts also and above all include a priori knowledge : “Objects for concepts whose objective reality (be it through pure reason, or through experience and in the former case from theoretical or practical data of the same, but in all cases through a corresponding view ) can be proven are (res facti) facts. ”( Immanuel Kant: AA V, 468 ) in a subsequent footnote, Kant points out that this definition extends the notion of fact, which was customary at the time, to what was inexperienced.
Thank God Frege distinguishes facts or states of affairs in the world from the thought through which they are given. For Frege, thoughts are the intension of certain linguistic-logical signs , which he calls sentences. These correspond to the statements in the logical sense that are carriers of truth values . In contrast to Bertrand Russell and other representatives of the Cambridge School of analytical philosophy , however, he does not make facts for the extension of sentences, but rather the truth values themselves. This is due to the fact that Frege understands sentences as logically complex expressions made up of proper names and Conceptual or relation words exist. A sentence is true if the proper names occurring in the sentence designate objects that fall into the class of those objects that fulfill the sentence function consisting of the meanings of conceptual words, logical constants and quantifiers . Frege also differentiates between extension and intension in terms of proper names and terms. For Frege, the intension of an expression is the “kind of being given” of what is designated for a cognitive subject, ie it corresponds to an epistemic perspective or an access of the subject to the extension of the expression. The individual facts are thus eliminated in Frege's theory of meaning, they cannot be distinguished from the true propositions which they express.
In epistemological positivism , a hypothesis becomes a fact in which it is verified or at least confirmed by observation . Since the linguistic turnaround , various representatives of linguistic-philosophical and epistemological approaches have emphasized that the language used makes preliminary decisions about what comes into question as facts (see also holism ). The separation of theory and observation language, which is crucial for logical positivism in particular, is thus blurred. To its epistemological model, in which general hypotheses are confirmed by predicting individually observable facts, critical rationalism therefore opposes the model of fallibilism , according to which general as well as observation hypotheses can only temporarily count as facts until they are refuted by new observation.
- Kevin Mulligan, Fabrice Correia: Facts. In: Edward N. Zalta (Ed.): Stanford Encyclopedia of Philosophy .
- Fact , in Ted Honderich (Ed.): The Oxford Companion to Philosophy. Oxford: Oxford University Press 2005.
- Rudolf Eisler - Dictionary of Philosophical Terms (1904) fact
- Jan C. Schuhr : "Deeds, facts and their dependence on attribution" on YouTube , June 17, 2019 (video, Heidelberg University, 14:05 min.)
- Oliver Stegmann, factual assertion and value judgment in the German and French press , 2004, p. 286 restricted preview in the Google book search
- RGSt 55, 129, 131.
- Munich Commentary / Hefendehl, § 263 Rn. 53, 63
- BGHSt . 8, 237, 239.
- BGH NJW 1990, 3151
- Hartmut Oetker: Handelsrecht , 2006, p. 51 restricted preview in the Google book search
- Wessels / Hillenkamp Rn. 496.
- Nomos Commentary / Urs Kindhäuser, § 263 Rn. 89.
- VerwG Basel-Land, judgment of November 27, 1991, in: BLVGE 1991, 124, 125.
- BLVGE 1991, 126.
- Gottfried Gabriel : fact in encyclopedia philosophy and philosophy of science, ed .: Jürgen Mittelstraß Volume 4, Metzler 1996 p. 209f.
- W. Halbfass: Entry fact. I in: Historical Dictionary of Philosophy Vol. 10, p. 913.
- Immanuel Kant, Collected Writings. Ed .: Vol. 1-22 Prussian Academy of Sciences, Vol. 23 German Academy of Sciences in Berlin, from Vol. 24 Academy of Sciences in Göttingen, Berlin 1900ff., AA . V, 467
- Immanuel Kant, Collected Writings. Ed .: Vol. 1-22 Prussian Academy of Sciences, Vol. 23 German Academy of Sciences in Berlin, from Vol. 24 Academy of Sciences in Göttingen, Berlin 1900ff., AA . III, 531
- Immanuel Kant, Collected Writings. Ed .: Vol. 1-22 Prussian Academy of Sciences, Vol. 23 German Academy of Sciences in Berlin, from Vol. 24 Academy of Sciences in Göttingen, Berlin 1900ff., AA . V, 468
- Gottlob Frege: About meaning and meaning , page 34.