Rzymska przysięga procesowa jako prototyp umowy dowodowej

Abstract

The recent amendments to the Code of Civil Procedure for the first time in the Polish legal system enabled the parties of proceedings to conclude a contract of evidence. This novelty concerns only special proceedings in commercial matters. By concluding a contract of evidence, the parties may avoid adducing a specific type of evidence in court. Such an agreement is also binding on the court. The introduction of contract of evidence is aimed at accelerating civil proceedings. However, doubts may arise as to whether the contract of evidence does not pose a significant hindrance to the court in learning about the actual facts of the case and whether that does not undermine the principle of material truth. The experience of Roman law brings to mind the institution of trial oath. When one of the parties suggested that the other one took an oath with a specific content, and the other immediately took that oath, the content of that oath was protected by the praetor as unquestionable. The oath could concern some factual circumstances or the very legitimacy of the plaintiff’s claim. In the latter case, the praetor immediately denied the plaintiff’s claim or issued a judgment against the defendant without any evidentiary proceedings. Therefore the Roman civil trial rules provided that the consensus of the parties could replace assertion of the truth by the judge. It turns out that the Polish evidence contract and the Roman trial oath, despite structural differences, were motivated by the same value: the economy of proceedings. They are also similar in that they give rise axiological doubts. The Roman example shows that material truth has an intuitively essential meaning in a civil trial. Formal truth, on the other hand, comes into play when specific values, such as the efficiency of proceedings or the sacredness of a word given, have to be protected in a particular way.