Please use this identifier to cite or link to this item: https://www.um.edu.mt/library/oar/handle/123456789/60625
Title: The burden of proof in the civil process
Authors: Aquilina, Joseph
Keywords: Burden of proof -- Malta
Burden of proof -- England
Burden of proof -- France
Burden of proof -- Italy
Process (Law) -- Malta
Process (Law) -- England
Process (Law) -- France
Process (Law) -- Italy
Issue Date: 1997
Citation: Aquilina, J. (1997). The burden of proof in the civil process (Master's dissertation).
Abstract: Two conflicting theories on the source of the Maltese procedural rule allocating the burden of proof seem to be equally worthy of consideration. According to the first theory, which seems to be the theory embraced by the Maltese courts, although the Roman law principle Ei incumbit probatio qui dicit non ei qui negat and its corollary principles developed and refined in time by the jus commune may have not only been part of Maltese law well before Malta became a British colony but also the original source of the English rules allocating the burden of proof, English law is nevertheless the direct and immediate source of the Maltese rule on the same matter. On the other hand, according to the second theory, the Roman law principle Ei incumbit probatio qui dicit non ei qui negat is a general principle of law which has been known to Maltese law well before the incorporation of any English rule of law therein and that, therefore, the jus commune should be considered the source of the applicable Maltese norm in this matter. Happily, according to both theories under consideration, the ultimate source, whether directly or indirectly, as far as the primary principle Ei incumbit probatio ... etc. and other corollary principles are concerned, is the jus commune. The main features of the English adversary system, especially with reference to testimoniary and documentary evidence, are hewn into the rules on evidence laid down in the Code of Organization and Civil Procedure, which constitute the main bulk of the Maltese law of evidence. It is mainly the Civil Code which contains some important rules, of a substantive nature, which constitute what may be deemed elements of "legal proof" in the Maltese law of evidence. The Civil Code enunciates free admissibility of means of evidence in Section 1232(1), saving, however, those cases wherein certain transactions require expression by means of a public deed or a private writing on pain of nullity. It contains provisions, scattered throughout its pages, which contemplate a number of transactions requiring expression by means of such an instrument for their validity. The Civil Code also contains provisions establishing presumptions of law and contemplating particular instances wherein such presumptions shall be operative. As in the English law of evidence, quite negligible are the instances in the Maltese law of evidence wherein evidence must be given special weight determined by law. Generally speaking, the weighing of evidence is left to the logic and common sense of the judge in the particular the case. A look at the rules of evidence in both Codes will reveal that few are the exceptions to a principle of reasonable freedom of proof which forms the basis of the Maltese law of evidence. The phrase "reasonable freedom of proof" seems preferable to the phrase "free proof" because the adduction and taking of evidence is always subject to the requisites of relevance and to the "best evidence" rule. Other exceptions to such reasonable freedom of proof are constituted by instances wherein the law limits admissibility only to certain means of evidence, other instances wherein the law allocates the burden of proof in particular cases and other instances wherein the law simply precludes, or permits the withholding, of certain information altogether. A look is taken not only at the cases wherein rules having any of these effects apply but also at how the Maltese law of evidence generally conforms to this principle of reasonable freedom of proof. Finally; the general features of civil law presumptions will be discussed considering that the Maltese general rules thereon have been culled from the Napoleonic codification and that the Civil Code contains many instances wherein a legal presumption is applicable in the particular case.
Description: LL.D.
URI: https://www.um.edu.mt/library/oar/handle/123456789/60625
Appears in Collections:Dissertations - FacLaw - 1958-2009

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