De probationibus et praesumptionibus
(Concerning Proofs and Presumptions.)
1Papinianus, Questions, Book III. Whenever a question is raised with reference to the family or race of any person, he must prove whether he belongs to it or not.
2Paulus, On the Edict, Book LXIX. Proof is incumbent upon the party who affirms a fact, not upon him who denies it.
3Papinianus, Opinions, Book IX. Where an implied trust is charged upon a party who is appointed heir for an equal or a larger share of the estate, by both a first and a second will, the proof of changed intention on the part of the testator devolves upon him against whom suit is brought; for often a motive of secrecy induces owners of property to appoint persons heirs in whose good faith they have confidence.
8The Same, On Plautius, Book XVIII. If a son under the control of his father denies the fact, the Prætor must direct the son to first prove his allegation, and this rule has been established on account of the affection which he ought to manifest for his father, and because the son practically alleges that he is free. Hence anyone who asserts his right to freedom is in the first place, ordered to prove it.
9Celsus, Digest, Book I. Where an agreement is made in which there is no mention of an heir, the question arises whether this has been done in order that only the person of the party himself may be considered. But although it may be true that he who makes use of an exception must establish good ground for doing so; still, the plaintiff, and not he who pleaded the exception, must prove that the agreement merely had reference to himself, and did not include his heir, because in such cases, we generally provide for our heirs as well as for ourselves.
11Ad Dig. 22,3,11ROHGE, Bd. 6 (1872), S. 216: Beweislast bei einem Anspruche gegen den Mandatar wegen Verabsäumung der vertragsmäßigen Diligenz. Rechenschaftspflicht des Mandatars.Celsus, Digest, Book XI. A ward is not compelled to prove that the sureties furnished by his guardian were not solvent when they were accepted, for proof of this must be required of those whose duty it was to watch over the ward, and provide security for him.
12Ad Dig. 22,3,12ROHGE, Bd. 22 (1878), Nr. 66, S. 300: Beweis fortdauernder Bereicherung.The Same, Digest, Book XVII. Fifty aurei were bequeathed to you by will, and the same legacy was included in codicils which were subsequently executed. It is important to ascertain whether the testator intended to double the legacy, or merely to repeatedly mention it, or did so, having forgotten that he had already made the bequest in his will. From which party then must proof of the intention of the testator be exacted? At first sight, it would appear more just that the plaintiff should prove what he claims, but there is no doubt that proof is sometimes required of the defendant; for if I bring suit for a claim and the defendant answers that the money has been paid, he himself is required to establish this. Therefore, in the present instance, if the plaintiff exhibits two instruments, and the heir alleges that the last one is void, the latter must prove this in court.
13The Same, Digest, Book XXX. Where an inquiry was made with reference to the age of a man, our Emperor issued the following Rescript: “It is both hard and unjust, when a question arises with reference to a party’s age, and different statements are made, that one should be accepted which is prejudicial; but in the trial of a case the truth should be considered, and his age should be computed according to the document which seems to be most credible, and to deserve the greatest confidence in the investigation of the matter.”
14Ulpianus, On the Office of the Consul, Book II. Inquiries should be made with reference to a person who, having passed as a freedman, now alleges that he is freeborn and desires to proceed as plaintiff. If, indeed, he occupies the position of a freedman, there is no doubt that he must bring an action to have himself declared freeborn, and establish that this is the case. But if he enjoys the reputation of having been born free, and he is alleged to be a freedman (of course by him who is responsible for the controversy), he who says that he is his freedman must prove it. For what difference does it make whether anyone asserts that he is his slave or his freedman? Where, however, a party has sufficient confidence in his claim of freedom of birth as voluntarily to undertake to produce proofs of it for the purpose of obtaining a decision declaring him freeborn (that is to say that he was born free as he alleges), it may be asked whether he should be permitted to do so. I am of the opinion that this should be done, and that he should have an opportunity to prove that he is freeborn, and have a decision rendered in his favor, as no one can be taken at a disadvantage by such a judgment.
15Modestinus, Opinions, Book XII. A certain man, asserting that he was the son of Seia and Gaius, seized the estate of Gaius, although the latter had brothers, and discharged certain trusts in favor of these brothers, as if by the direction of the deceased, and took a receipt. They, having afterwards ascertained that the alleged son was not their brother, asked whether they could bring an action against him to recover the estate, on account of the receipt which they had given him as the son of the deceased. Modestinus answered that the position of the party to whom the receipt had been given in discharge of the trust, and who could be proved by the brothers of the deceased not to be his son, was not in the slightest degree established by this fact, but that proof must be submitted by the brothers.
16Terentius Clemens, On the Lex Julia et Papia, Book III. The statement of a mother as to the birth of her children, as well as that of a grandfather, must be accepted.
18Ulpianus, Disputations, Book VI. Whenever services are demanded of a freedman, proof of his right to do so is required from the party who alleges that he is his patron; therefore Julianus holds that, although in a matter which is in controversy the patron is held to be entitled to possession, he who is said to be the freedman should not take the part of plaintiff, but he who asserts that he is the patron should do so. 1Ad Dig. 22,3,18,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 265, Note 17.Where anyone alleges that some fraudulent act has been committed, he must prove the fraud, even though he may have made this statement in an exception. 2The plaintiff should be compelled to prove the truth of an interrogatory which is made, that is, where it is alleged that a party who was interrogated in court answered that he was the sole heir; or if, having been interrogated, he is said to have remained silent, the same rule must be held to apply; and the blame must be placed not upon him who stated in his exception that he did not answer, but upon the plaintiff.
19The Same, Disputations, Book VII. It must be said, with reference to exceptions, that the defendant is required to perform the part of plaintiff, and he himself prove his exception, just as the plaintiff must prove his claim; for instance, where he pleads an exception on the ground of a contract entered into, he must show that the contract was actually made. 1Where anyone who promised to appear in court alleges as a reason for not doing so that he has been absent on public business, or that some malicious act of his adversary prevented him from appearing, or his health, or a storm hindered him, he must prove it. 2Where a party makes use of an exception on the ground that the appointment of the attorney of his adversary is not valid, because his adversary could not appoint, or be appointed an attorney, he must prove the truth of the exception which he has interposed. 3The same rule will apply where suit is brought for a sum of money which is alleged to have been paid. 4Again, where an exception is pleaded on the ground of a decision rendered; or because an oath is said to have been tendered with reference to the property for which suit now is brought, or because the matter in controversy has reference to a game of chance, the party who filed the exception must prove all these allegations.
20Julianus, Digest, Book XLIII. Where anyone seizes a freeman by force, and keeps him in chains, he is most unworthy of the advantages enjoyed by a possessor, because it cannot be proved that, at the time that proceedings were first instituted, the man was free.
21Marcianus, Institutes, Book VI. I think that the better opinion is that he who brings the action, that is to say the legatee, must prove that the testator knew that the property bequeathed belonged, or was encumbered to another, and that the heir is not required to prove that it belonged to someone else, or was encumbered, because the necessity of proving his allegations always rests upon the plaintiff.
23Marcianus, On the Hypothecary Formula. It must be proved, before everything else, that it was agreed between the plaintiff and the debtor, that the property should be pledged or hypothecated. After the plaintiff has proved this, he must also establish the fact that the property belonged to the debtor at the time the pledge was agreed upon, or that the hypothecation was made with his consent.
24Modestinus, Rules, Book IV. Where a promissory note has been cancelled, although the presumption is that the debtor has been released, still, he can lawfully be sued for the amount which the creditor can show by manifest evidence is still due to him.
25Ad Dig. 22,3,25ROHGE, Bd. 21 (1877), Nr. 84, S. 261: Folgen leichtsinnigen Leugnens.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 426, Note 10-25.Paulus, Questions, Book III. Ad Dig. 22,3,25 pr.ROHGE, Bd. 23 (1878), Nr. 107, S. 319: Begründung der cond. indeb. Beweis des Irrthums und dessen Entschuldbarkeit.Where a question arises with reference to money which is not due, who must prove this? The matter should be adjusted so that if he who is said to have received the property denies that the money is not owing, and he who paid it proves its payment by competent evidence, then he who denies absolutely that he received the money, if he wishes to be heard, must be compelled to furnish proof that the money was lawfully due to him; for it would be absurd if he who, in the beginning, denied that he had received the money, and afterwards was shown to have received it, should require proof from his adversary that it was not owing to him. If, however, in the first place, the plaintiff should acknowledge that he had received the money, but should assert that it was due to him, the presumption undoubtedly will lie in favor of the party who received it, for he who pays is never so negligent as to throw away his money without hesitation, and pay it when it is not due; and especially is this the case where the party who alleges that he paid what was not due is the diligent and careful head of a household, for it is incredible that a person of this kind should be so easily deceived. Therefore he who alleges that he has paid money which was not due will be required to produce evidence that the said money was paid through the fraud of the party who received it, or on account of some just cause of ignorance, and unless he shows this he will have no right to recover it. 1Where, however, he who complains of the payment of money which was not due is a ward, a minor, or a woman, or, indeed, a man of full age but a soldier, or a cultivator of the soil and inexperienced in public business, or fond of a simple life and given to idleness; then he who receives the money must show that he actually did so, and that it was due and payable to him, and if he fails to do this he must refund it. 2This only applies where the party who paid the money contends that the entire sum was not due. Where, however, he complains of the payment of only a portion, on the ground that only a part of the money paid was not due; or that it was due in the beginning, but the debt was afterwards discharged, and he ignorantly paid it a second time; or that, being protected by an exception, he paid the money through mistake; he, himself, must, by all means, establish that he either paid more than was due, or that he paid money a second time through mistake, or that, being protected by an exception, he ignorantly paid the money; in accordance with the general rule which requires those to furnish proof who state that they have exceptions to offer, or who allege that they have paid the debt. 3In all the instances which we have suggested, permission should be granted to him upon whom rests the burden of proof to tender the oath to his adversary, with reference to the truth of the matter, before tendering him the oath pro calumnia; so that the judge may regulate his decision according to the confidence which he has in the oath of the plaintiff, the right to the defendant to tender the oath back to his adversary being reserved. 4Ad Dig. 22,3,25,4Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 318, Note 4; Bd. II, § 412b, Note 2.This point relates to the payment of money which is not due. Where, however, a written promise to pay is said to have been made for money which is not due, and the terms of the instrument are indefinite, then the party in whose favor the note was executed will be compelled to prove that the sum mentioned in it is due to him, unless he who made the note has explicitly stated his reasons for doing so; for then he must abide by his admission, unless he is ready to show by conclusive documentary evidence that he made the promise to pay money which he did not owe.
26Papinianus, Questions, Book XX. Procula, to whom a large sum of money was due from her brother under the terms of a trust, wished to set off this sum proportionately against his heirs after his death; and in opposition to this it was alleged that she had never demanded the money of her brother during his lifetime, but that she herself had paid him certain sums of money for various reasons growing out of accounts which they had with one another. The Divine Commodus, in deciding the case, did not admit the set-off, but held that she had tacitly released her brother from the execution of the trust.
27Scævola, Digest, Book XXXIII. A man made a will, and bequeathed a lawful share of his estate to one who was only entitled to receive a certain amount, and he then provided as follows: “I give and bequeath one hundred aurei to Titius, which he has placed in my hands, but of which I have not given him any written evidence, because I have held all the fortune and property which he received from his mother in my possession without any note. Moreover, I desire that there should be delivered and paid to Titius a hundred and fifty aurei out of my estate, which I have received as the rent of land, being the proceeds of crops harvested and sold, as well as any sums shown on my books to have been received by Titius from his mother, and which I have appropriated to my own use.” I ask whether Titius can collect this money. The answer was that if Titius can prove that the property had come into the hands of the testator in accordance with the above-mentioned statement, he can do so; for it is held that in a case where a party is not entitled to receive more than a certain amount by a legacy, such provisions are added to a will in violation of law.
28Ad Dig. 22,3,28Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 113, Note 9.Labeo, Epitomes of Probabilities, by Paulus, Book VII. Where it is the duty of an arbiter to decide a case, should he inquire whether a memorandum of the labor performed exists, or whether anyone remembers that the labor has been performed? Paulus says that when inquiry is made in a case of arbitration, as to whether a memorandum of the labor performed is in existence or not, it ought not to be asked whether anyone remembers the time, or under what consul the work was done, but whether it can be proved in any way whatsoever when it was done. And this should be accomplished, as the Greeks are accustomed to state, in a general way, for it cannot be retained in the memory that the work has been done; for example, within a certain year, since, in the meantime, no one will probably remember under what consuls it was performed. But where the opinion of all persons is that they did not hear of the work being done, or see it, or learn of it from any who might have seen it, or heard of it, and, no matter how far back one may go, no memorandum of the work performed can be found; this will be sufficient.
29Scævola, Digest, Book IX. The Emperors Antoninus and Verus stated in a Rescript to Claudius Apollinaris the following, namely: “It is decreed that proofs given with reference to children shall not consist of the mere statements of witnesses, but also of letters which are alleged to have been sent to wives, if their authenticity is established, and they can be introduced as documentary evidence.” 1A wife, who had been repudiated while pregnant, brought forth a son during the absence of her husband; and, in the course of the proceedings instituted in consequence, confessed that the child was illegitimate. The inquiry arose whether the son was under the control of his father, and if when his mother died intestate, he could enter upon her estate by order of his father, or whether the confession made by his angry mother would prejudice his rights. The answer was that, in cases of this kind an opportunity always existed for ascertaining the truth.