THE ROLE OF DISCRETION IN SHIFTING THE BURDEN OF PROOF IN CIVIL CASES

Abstract

This study aims to consider the provisions of the role of discretion in shifting the burden of proof in civil cases. In fact, and contrary to the general rule that provides for the burden of proof to be for the plaintiff, we find that the discretion of the legislator plays a significant role in shifting the burden of proof from the liability of the plaintiff to that of his opponent through the legal presumption whether being simple or definite. Further, it is also the case concerning the discretion of the judge by using his discretionary authority in deriving the judicial presumptions from the circumstances of the case and its incidents. In fact, shifting the burden of proof is not restricted to the discretion of the legislator and judge only, but also the discretion of the parties plays a prominent role in this regard depending on the matter that the general rule in proof is not related to the common law. In fact, the same is made on the basis of a prior agreement between the opponents to entertain the case. Yet, we found that the penal condition stands to be a typical form for such agreement. Actually, the agreement may be performed during hearing the case when the opponent who not liable for the burden of proof may assume such a duty without any objection from the opponent who is liable for such a burden.