Our law of evidence is being modernised as well

On 27 April 2018, the Council of Ministers approved the draft bill to introduce Book 8 ´Evidence´ into the coming new Civil Code. The legislature is seeking to update the law of evidence and make it more intelligible, including in the area of electronic contracting. Along with the codification of many principles and concepts from the legal doctrine and case-law, the bill constitutes a break with the current law on certain points. In the following we briefly discuss a few of the proposed changes. 

The general principle that the plaintiff bears the burden of proof for what he is alleging remains intact, while nevertheless being nuanced. For example, in the event of “extraordinary circumstances” the judge could reallocate the burden of proof, if the application of the “normal” rules would be manifestly unfair. Further, it is provided that he who bears the burden of proof of a negative fact (e.g. I did not receive this information), can settle for demonstrating the probability of that fact, and this without prejudice to the obligation of all parties to cooperate in furnishing evidence. Striking is the relaxation that probability can also suffice for positive facts for which - because of the very nature of the fact to be proven - it is impossible or unreasonable to demand certain proof.

The statutory evidentiary system in civil cases continues to exist, but it is being made more flexible. Where under the current law in principle a legal act relating to a value that is equal to or greater than 375.00 EUR can only be proven with a written notarial or private deed, this threshold is now being increased to 3,500.00 EUR. This facilitates the proof of legal acts whose value is relatively limited. 

The Act of 15 April 2018 reforming the business law expands the freedom of proof that already applies with regard to merchants to the broader concept of enterprises. This also means that the old commercial-law rule according to which a merchant who does not protest a claim against him is deemed to have accepted it will apply for all enterprises. A claim can be contained in an invoice, but also e.g. in a letter in which certain claims are formulated. Moreover an accepted invoice will not only apply as proof for purchase-sale agreements, such as earlier defined in the Commercial Code, but for all kinds of agreements. Vigilance will therefore be more necessary than ever! It is also recalled that the bookkeeping of an enterprise can be accepted by the judge to serve as proof between enterprises. During the course of a legal proceeding the judge can order the opening of all or a part of the bookkeeping relating to the dispute to be investigated. In so doing he can impose measures to safeguard the confidentiality of the relevant documents.

The modifications to the law of evidence come on top of the impending modifications of the company, obligations, property and liability laws. So many changes are yet to come, and we will in any event keep you informed of the further developments.

For more information on this subject, you can consult Nel Van Daele and Geert De Buyzer (the authors).