New Insights on the ‘Dynamic Burden of Proof’ Doctrine

Abstract

The paper presents some new insights on the so called dynamic burden of theory, a judge & academic-made doctrine recently transformed in statutory law in Argentina with the enactment of the 2016 Civil and Commercial Code (CCC). For several decades, this theory raised and gained strength in Argentina and other Latin American Countries, due to a remarkable doctrinal and jurisprudential development and support. However, one of the main dilemmas (“the” main dilemma in my view) of this theory remains far from being solved: its scope of application. It emphasyses the need for a conceptual distinction between the procedural principle of collaboration (which requires the parties to produce evidence that or should be in their power), and the proper and general imposition of a straight burden of proof over the party that is better able to prove. After that, it sets position over the most suitable way to apply or adopt the principles of this theory in a comparative level, without insisting on its shortcomings.