Definition and Legal Classification of the Burden of Presentation
The burden of presentation is a central concept in German civil procedure law and refers to the obligation of a party to present certain facts in a legal proceeding in such a concrete and substantiated manner that they can serve as the basis for the court’s decision. It is closely linked to the burden of proof, but differs in its function and significance within the process. The burden of presentation regulates, in particular, which party must plausibly assert and explain a specific set of facts at which point in the course of proceedings.
Distinction: Burden of Presentation and Burden of Proof
Burden of Presentation
The burden of presentation compels the respective party to present the facts favorable to them in a plausible, comprehensible, and coherent manner. Only when a set of facts has been presented by a party to the required extent will the court take it into account and, if necessary, order the taking of evidence. Without sufficient presentation, an assertion is considered “made out of the blue” and will be disregarded.
Burden of Proof
In contrast to the burden of proof, which determines who bears the risk that a fact is deemed unproven, the burden of presentation only regulates who must present the facts. Thus, while the burden of presentation is a procedural obligation to set out the facts, the burden of proof refers to the responsibility for providing evidence and the associated risk.
Statutory Basis of the Burden of Presentation
The burden of presentation is particularly anchored in the Code of Civil Procedure (ZPO). The key provision is § 138 ZPO, which contains the obligation for complete and truthful statements. The party must substantiate the circumstances favorable to them; the opposing party in turn has the opportunity to comment and, if necessary, put forward counterfacts.
Key Provisions
- § 138 ZPO – Obligation of the Parties to Make Statements
- § 286 ZPO – Formation of the Court’s Conviction
- § 513 BGB – Rules on the Burden of Proof in Substantive Law
Requirements for the Burden of Presentation
Obligation of Substantiation
The party relying on a particular legally relevant circumstance must present it with sufficient concreteness so that the court and the opposing party can understand and verify the assertion. Mere general or formulaic assertions are not sufficient. The standard is always whether the statement of facts is detailed enough that the opposing party can specifically respond.
Levels of Presentation
The burden of presentation can be layered, especially in complex matters. If the party with the burden of presentation fulfills its obligation, the other side must in turn contest and introduce counterfacts. If this is successful, the party originally obligated to present must, if necessary, further specify (the so-called secondary burden of presentation).
Secondary Burden of Presentation
A particular manifestation of the burden of presentation is the so-called secondary burden of presentation. This applies where it is not possible or unreasonable for one party to provide a more detailed account of the proceedings, while the other party has better knowledge and means to clarify the facts. The secondary burden of presentation serves the purpose of equal arms and a proper clarification of the events.
Practical Examples
Labor Law
In labor court proceedings, the burden of presentation in termination cases lies, for example, with the employer, who must substantiate the facts for the validity of the termination in the process. The employee may then comment extensively and contest these facts.
Tenancy Law
In tenancy law, the burden of presentation falls on the landlord when, for example, claiming service charges. The landlord must explain their accrual, eligibility for apportionment, and proper billing.
Competition Law
In competition proceedings, a party alleging an unfair act must substantiate this by providing a coherent statement of the individual commercial actions.
Legal Consequences of Breaching the Burden of Presentation
If a party fails to meet its burden of presentation, the statement of facts is disregarded. The court must then decide as if the alleged circumstance had not occurred. Insufficient presentation may thus lead to complete or partial dismissal of the action, without the need for the taking of evidence.
Burden of Presentation in Different Types of Proceedings
Civil Proceedings
In civil law and civil procedure, the burden of presentation is a central part of oral and written hearings. It determines whether, and to what extent, facts serve as the basis for the judgement.
Administrative Proceedings and Criminal Trials
Other procedural codes, such as the Code of Administrative Court Procedure or the Code of Criminal Procedure, also contain obligations of presentation, although their design depends on the basic concepts of the respective type of proceedings.
Literature and Further Jurisprudence
The burden of presentation is the subject of extensive literature and case law. Landmark decisions by the Federal Court of Justice (BGH) and Higher Regional Courts regularly set standards on the structure, scope, and limitations of the burden of presentation, for example regarding the secondary burden of presentation or the requirements for substantiated allegations in civil proceedings.
Significance of the Burden of Presentation for Procedural Law
The burden of presentation has significant effects on the course of proceedings and procedural risk. In conjunction with the burden of proof, it safeguards procedural fairness and is essential for proper and constitutional decision-making. Errors in presentation can lead to the complete loss of claims, while careful presentation greatly increases the chances of successfully enforcing a claim.
Note: The burden of presentation is a central procedural concept that carries significance in almost all types of proceedings and is crucial for efficient clarification of the facts. For the assessment of prospects of success or the preparation of a lawsuit, precise knowledge of the burden of presentation and the applicable requirements in each case is indispensable.
Frequently Asked Questions
Who bears the burden of presentation in civil proceedings, and how does it differ from the burden of proof?
In civil proceedings, each party generally bears the burden of presentation for the facts favorable to them. According to the so-called principle of party presentation (§ 138 ZPO), each party must put forward the facts from which they derive legal advantages. The burden of presentation must be distinguished from the burden of proof: While the burden of presentation concerns the extent and necessity of the statement of facts, the burden of proof is the obligation to prove the alleged facts if they are disputed. If a party does not meet its burden of presentation, the action or defense may already be dismissed as unsubstantiated, regardless of the burden of proof. Only once the party has provided sufficiently substantiated statements and the opposing party has disputed the factual presentation does the allocation of the burden of proof determine the outcome of the proceedings, if the evidence is not successful.
In which cases can the burden of presentation become stricter to the detriment of a party (“secondary burden of presentation”)?
In special circumstances, the burden of presentation may intensify into the so-called secondary burden of presentation. This applies to cases in which one party has better knowledge of relevant facts, and it is unreasonable to expect the other party to present substantiated claims without further information. Case law then requires the better-informed party to provide more detailed information or to present transparently on the events, so that the court can make a legal assessment of the circumstances. Typical application cases are, for example, in copyright law (e.g., file sharing), where the connection owner claims that other persons had access to the internet connection, or in medical liability law, when it concerns events within the doctor’s sphere of responsibility. If the party fails to meet its secondary burden of presentation, this can be evaluated to their detriment in the proceedings.
How detailed must a statement of facts be to satisfy the burden of presentation?
In civil proceedings, a party’s statement of facts must be so substantiated that the court can make a legal assessment of the asserted claims or defenses based on the presentation. The party must describe concrete facts and, if necessary, support them with evidence. General, keyword-like, or merely formulaic assertions do not meet the burden of presentation. The required level of detail depends on the complexity of the particular circumstances and the opposing party’s presentation; in the case of substantiated dispute, the statement must often be supplemented or further specified. It is crucial that the statement provides a sufficient basis for the taking of evidence and that the trial court can comprehend the events.
How does the burden of presentation operate if the opposing party disputes the facts?
If the opposing party disputes the presented facts, a simple presentation is often no longer sufficient. The party with the burden of presentation must then often further substantiate its statement and provide more detail about the asserted events. This, in addition to providing names, places, and times, may also include explaining internal facts (e.g., motives, intentions), insofar as these are relevant for establishing the claim. The so-called “pleading ignorance” is also only permissible if the disputing party has no own knowledge (§ 138 para. 4 ZPO). In all other respects, a qualified dispute addressing the details by the opposing party is a prerequisite for a taking of evidence.
What role does the burden of presentation play in labor law or tenancy law?
In labor law, the burden of presentation may be split in cases concerning protection against dismissal: for instance, the employer must present the reasons for a dismissal (e.g., operational requirements), while the employee must substantiate why particular alleged facts (such as errors in social selection) are incorrect. In tenancy law, generally the landlord bears the burden of presentation for facts justifying dismissal or a rent increase, while the tenant must substantiate their objections. In both legal areas, the stricter burden of presentation often applies, for example, when one party has access to certain witnesses or documents that the other party cannot access.
What happens if the burden of presentation is not fulfilled in civil proceedings?
If a party does not fulfill its burden of presentation regarding a fact that constitutes or destroys a claim, the statement of facts is regarded as unsubstantiated. As a result, the court does not use this statement as a basis for taking evidence. If there is no conclusive statement of facts regarding the requirements of a claim, the action is dismissed as unsubstantiated; if there is no presentation of defenses or objections, the opposing party’s argument will be unsuccessful. Thus, the party bears the risk that, due to lack of sufficient substantiation, its statement will not be taken into account.
Can the court give a party advice on fulfilling its burden of presentation?
According to § 139 ZPO, the court is obliged to work towards an orderly clarification of the facts. It draws the parties’ attention to missing statements of fact or insufficient substantiation, and provides hints as to which points need to be revised or supplemented. The aim is to avoid surprise decisions and to give both parties the opportunity to adjust their presentation to the requirements of the burden of presentation. Nevertheless, the burden of presentation— even with court instructions— remains ultimately with the respective party. If the party fails to supplement its statement despite the court’s advice, this may result in a procedural disadvantage.
