Definition of the burden of allegation
Die Burden of Allegation is a central term in German civil procedural law and describes the obligation of a party to present those facts which are favorable to them and from which they wish to derive a right. Unlike the burden of proof, the burden of allegation relates to the presentation of a fact, not its proof. Understanding and correctly applying the burden of allegation is essential for asserting claims before court as well as for defending against claims in civil proceedings.
Distinction from the burden of proof
Conceptual Separation
The burden of allegation differs from the burden of proof, although both terms are often mentioned together. While the burden of proof regulates which party bears the responsibility to demonstrate the truth of a (disputed) fact, the burden of allegation determines which party must first introduce certain facts into the proceedings. The guiding principle is: without a substantiated statement of facts, there will be no taking of evidence.
Significance in civil proceedings
According to the so-called principle of party presentation (Beibringungsgrundsatz) civil proceedings are designed so that the parties present and substantiate the facts relevant to their legal positions. The court may, as a rule, not consider any facts that have not been submitted by the parties (principle of party disposition). Whoever derives rights from a fact usually also bears the burden of allegation for its existence.
Functioning of the burden of allegation
Obligation to substantiate
The burden of allegation requires the party not just to present the facts generally, but to set them out in such detail and with such substance that the court and the opposing party can recognize the specific events or circumstances involved. Vague or formulaic statements are not sufficient; the facts must be presented with disputed and decisive individual facts.
Reaction of the opposing party
If the opposing party disputes the alleged facts, the question arises as to who bears the burden of proof. If the opposing party disputes facts for which the other has the burden of allegation, it generally remains their responsibility to prove these. If the other party remains silent or does not sufficiently substantiate their denial, the court can treat the asserted facts as admitted or undisputed.
Legal basis and significance in different types of proceedings
Code of Civil Procedure (ZPO)
The legal foundations for the burden of allegation are primarily found in the Code of Civil Procedure (ZPO). According to § 138 ZPO, the parties are obliged to make complete and truthful statements. In addition, § 286 ZPO (free evaluation of evidence) and § 253 ZPO (certainty of the subject matter of dispute) regulate the requirements for presenting facts and thus indirectly contribute to the significance of the burden of allegation.
Civil procedure and other types of proceedings
While the burden of allegation is central in civil procedural law, it is also relevant in other types of proceedings—such as administrative proceedings (§ 86 VwGO), labor law, and criminal proceedings (§ 244 StPO). As a rule, the distribution of the burden of allegation follows the structure of facts, according to which the party deriving rights from a fact must provide the corresponding statement.
Practical significance and consequences of the burden of allegation
Requirements for a successful lawsuit
Anyone who files a lawsuit is required to substantiate the claim both legally and factually in a coherent manner. If the presentation of the facts is incomplete or lacks the necessary substance, the claim may be dismissed for lack of sufficient facts being presented.
Consequences of violating the burden of allegation
If a decisive fact is not alleged, the court will generally consider it as not having occurred. Consequently, a party, even if actually entitled under the law, may be disadvantaged solely due to a lack of substantiated statement of facts.
Relationship to other procedural burdens
Distinction from the burden to explain (Darlegungslast)
The terms burden to explain (Darlegungslast) and burden of allegation are often used synonymously. In a narrower sense, however, the burden to explain refers to the duty to provide actual and legal grounds for a claim or a defense. The burden of allegation focuses solely on communicating the facts to be proven.
Dynamic allocation of the burden of allegation
In certain cases, the burden of allegation may shift during the proceedings. This is particularly conceivable if one party provides sufficient factual presentation, thereby obliging the other party to make a substantiated response. Especially in labor law (e.g., in protection against dismissal actions) and in liability law (for example, in typical damage sequences), differentiated principles of case law exist regarding this.
Summary
The burden of allegation is a fundamental procedural principle in German civil procedure law and serves to structure the parties’ submissions. It obliges the party to present all facts favorable to them and forming the basis of their claim in a substantiated manner in order to be entitled to a taking of evidence and, ultimately—if the facts are proven—to prevail in the legal dispute. Proper handling of the burden of allegation significantly influences the outcome of any legal confrontation and is crucial for both asserting and defending civil claims.
Frequently Asked Questions
Who generally bears the burden of allegation in civil proceedings?
In civil proceedings, the party that derives a favorable right from a specific fact generally bears the burden of allegation for that fact. This means it is their responsibility to substantiate the relevant facts so that the court can consider these circumstances. The burden of allegation must be strictly distinguished from the burden of proof; the burden of allegation is already required for a fact to be considered in the judicial review. If facts are undisputed, the question of the burden of allegation becomes irrelevant, as the court may then assume these facts. Only in the event of dispute or ambiguity does the role of the burden of allegation become clear: without the corresponding party’s statement, the judge must disregard the point.
What are the consequences if a party does not fulfill their burden of allegation?
If a party does not fulfill their burden of allegation, the court will not consider the respective fact in its decision-making process. This means the party cannot benefit from this—unsupported or inadequately presented—fact. In extreme cases, this may lead to a claim being dismissed or a right not being recognized, even though it may materially exist under the law. Failure to consider a fact for lack of substantiation affects both new facts and those that are elements to be proven for a claim or defense.
Can the burden of allegation shift from one party to another during a proceeding?
As a rule, the burden of allegation remains with the party seeking to derive rights from the fact for the entire proceedings. A transfer of the burden of allegation is inconsistent with the system and generally does not occur. However, exceptions exist within the context of procedural actions, such as when objections or defenses are raised. Once an objection is asserted, for example a defense of fulfillment, the party raising the objection then bears the burden of allegation for the facts benefiting them. This can result in a so-called secondary burden of allegation, which does not constitute a true shift of the primary burden, but rather aims, according to the principle of party presentation, to afford the opponent the opportunity to make the necessary submissions.
How does the burden of allegation differ from the burden of proof?
The burden of allegation concerns the requirement to present a particular fact so that the court can include it in the judicial consideration of facts. The burden of proof, on the other hand, relates to the necessity of actually proving the alleged facts if they are substantively disputed by the opposing party. While an undisputed circumstance does not require proof, the burden of proof becomes relevant only if a fact remains disputed. Both burdens may rest on the same party, but this is not a requirement; in particular with negative or rebuttal facts, there may be special situations.
What role does the burden of allegation play regarding negative facts?
For negative facts, such as denying a precondition for a claim, a distinction must be made. In principle, the party asserting the claim must present—and if necessary, prove—those facts on which their claim is based, including the absence of circumstances excluding the claim if this forms part of the legal elements. In certain situations, the defendant is expected to at least substantiate facts that preclude, destroy, or suspend the claim, which can lead to a secondary burden of allegation. However, the actual burden of allegation in the legal sense remains with the claimant.
Is the judicial duty to provide guidance and clarification affected by the burden of allegation?
Yes, the judicial duty to provide guidance and clarification pursuant to § 139 ZPO is closely linked to the burden of allegation. The court must point out deficiencies in the presentation of facts if it is obvious that a party has overlooked a decisive fact or regarded it as irrelevant. However, this duty to inform does not replace the requirement for substantiated party submissions. Its sole purpose is to provide parties the opportunity to address existing gaps, thus preventing disadvantages caused by ignorance or misunderstandings of the legal situation.
What are the consequences for taking evidence if the burden of allegation is not fulfilled?
If decisive facts have not been introduced into the proceedings by a party, no taking of evidence will take place in this regard. The court may not, and must not, take evidence on facts that have not been alleged, even if they may be suggested by the opposing party’s submission or other circumstances. Taking evidence always requires a prior, substantiated presentation of facts. Violating this rule would amount to an inadmissible fishing expedition and may, where appropriate, infringe the other party’s right to be heard.
