Burden of proof: The erosion of and ancient rule

Abstract

The ancient rule of the burden of proof contained in Article 2697 of the Italian Civil Code has experienced a significant erosion in recent years due to case law. The judge often creates presumptions and distributes the burden by asking the party that has the greatest possibility or facility to provide evidence. The rule of the burden of proof, moreover, was traditionally understood to mean that the burdened party had to provide full evidence, only in such cases the burden could be considered to have been met. But even this rule, in many areas, is no longer respected, as case law uses quite different standards of proof, even settling for the so-called prevailing probability. Lastly, a further erosion factor is related to the increasingly frequent use of court-appointed expert witnesses to provide the judge with elements useful for the decision, so that the reference to the party responsible for providing the evidence is disregarded.