The allocation of the burden of proof determines which party must prove the facts on which it bases its claim or defence. It decides the outcome of proceedings: a party bearing the burden who fails to discharge it loses on that point.
Legal basis
Article 150 of the Dutch Code of Civil Procedure states the main rule: the party relying on the legal consequences of facts it asserts bears the burden of proving them, unless a special rule or the requirements of reasonableness and fairness dictate otherwise. That exception is applied sparingly. Alongside reversal, the law recognises presumptions, such as in consumer sales under Article 7:18(2) of the Civil Code, where a defect appearing within a year of delivery is presumed to have existed at delivery. Article 149 provides that the court may only base its decision on facts that were asserted and established; facts not sufficiently disputed are taken as established. Article 194 governs expert evidence and Article 166 the examination of witnesses.
How it works in practice
The allocation follows the structure of the rule relied on. A party claiming performance proves the contract and its content; a party asserting payment proves that. The writ should therefore already indicate which documents substantiate each element. Equally important is reasoned denial: a bare denial leads to the asserted facts being taken as established, so that evidence is never even reached.
Where it goes wrong
Parties assume the court will investigate for itself; in civil cases it does not. A second error is a general offer of evidence without specifying which witnesses can say what, after which the offer is passed over. Third, records are put in order only after the dispute arises, whereas contemporaneous documents are far more persuasive.
Related terms
The burden of proof operates in writ of summons proceedings, in breach of contract and in error.
Would you like to know who must prove what? Our civil law specialists map it out before you litigate.
