Definition and Legal Classification of the Burden of Specification
Die Burden of Specification, also known as the objective burden of proof or substantive burden of proof, is a central concept in German civil procedural law as well as in other legal fields. It describes the legal responsibility to present and prove the material prerequisites of a claim—or the absence of such prerequisites—in such a manner that the court can be convinced of their existence during the proceedings. If a factual situation cannot be clarified (non liquet), the burden of specification determines on whom the uncertainty falls—in other words, which party bears the risk of proof.
Distinction from the Burden of Presentation
The burden of specification is to be distinguished from the burden of presentation . While the burden of presentation determines which party must present which facts in the proceedings, the burden of specification addresses the question of which party suffers a disadvantage if a fact cannot be resolved during the trial. As a result, a party can bear both the burden of presentation and the burden of specification, but under certain circumstances these burdens may diverge.
Legal Foundations of the Burden of Specification
Civil Procedure Law (§ 286 ZPO)
Im Civil Procedure Law the burden of specification is not explicitly codified, but arises from Section 286 of the Code of Civil Procedure (ZPO) and the principle of the free judicial assessment of evidence regulated therein. Generally, in civil proceedings, the plaintiff bears the burden of specification for the factual preconditions of their claim; the defendant bears it for circumstances from which objections or defenses arise.
Example – Burden of Specification of the Claimant
For example, if a buyer seeks damages for defective delivery, he bears the burden of specification for the existence of the defect and the resulting damage. The seller, on the other hand, bears the burden of specification for exonerating circumstances, such as the absence of their own fault.
Criminal Procedure and Public Law
The burden of specification also plays a role in criminal and administrative procedural law, but is more strongly oriented toward specific procedural principles such as the presumption of innocence (§ 261 StPO) and the obligation to investigate ex officio (§ 86 VwGO). In criminal proceedings, not the accused but rather the public prosecutor’s office or the prosecuting authority bears the burden of specification for incriminating facts. If the court cannot clarify a fact relevant to conviction, this is to the detriment of the prosecuting authority (in dubio pro reo).
Special Private Law Regulations and Statutory Reversal of the Burden of Proof
The law provides for specific rules regarding the burden of specification in various areas, for example in Section 280 (1) sentence 2 BGB (liability in damages law) or in Section 363 BGB (reversal of the burden of proof after performance). The rules on presumption (e.g., regarding possession or legitimacy of marriage) expressly determine the burden of specification in certain cases.
Areas of Application and Practical Significance
Civil Law
In contract law, tort law, inheritance law, and family law, the allocation of the burden of specification is of fundamental importance. It influences how parties can successfully assert or defend claims and which facts are to be clarified as a matter of priority in the proceedings.
Typical Examples
- Sales Law: Buyer must prove defect; seller must prove impossibility of delivery or grounds for exclusion.
- Damages Law: Injured party must prove damage and causality establishing liability; injuring party must prove exonerating circumstances.
- Inheritance Law: Applicant for certificate of inheritance must set out and prove the status as heir.
Administrative Law
In administrative proceedings, in deviation from civil proceedings, the authority often bears the burden of specification for all facts establishing or excluding a claim. If facts cannot be clarified, this works in favor of the affected person (the applicant), provided that denying them would infringe a constitutionally protected individual right.
Reversal of the Burden of Proof and Presumptions
A deviation from the general principle of the burden of specification occurs when the law provides for a reversal of the burden of proof or a statutory presumption rule . This occurs, among others, in:
- Product Liability Act: Presumption of a product defect if a particular type of damage occurs.
- Section 477 BGB (Consumer Goods Purchase): Reversal of the burden of proof in favor of the consumer within twelve months of delivery.
- Section 1361 BGB (Maintenance): Presumptions regarding neediness and ability to pay.
The purpose of such rules is to ease evidentiary difficulties for parties typically weaker in providing proof.
Doctrinal Foundations and Importance in Legal Disputes
The burden of specification is closely connected with the rules on the allocation of the burden of proof and is a manifestation of the rule of law and procedural fairness. It serves to ensure substantive justice by allocating the risk to the party asserting a favorable consequence of law if that assertion cannot be substantiated.
Conclusion
The burden of specification is a fundamental element of German procedural law and has significant practical relevance across all areas of law. It determines how facts that cannot be clarified are construed in proceedings and which party suffers a disadvantage as a result. Accurate knowledge of the burden of specification is therefore essential for the successful pursuit and defense of rights. Together with the burdens of presentation, proof, presumption, and reversal of the burden of proof, the burden of specification forms one of the main pillars of procedural law in the German legal system.
Frequently Asked Questions
Who bears the burden of specification in civil proceedings and when does it apply?
The burden of specification, also referred to as the burden of proof in the narrower sense, regularly falls on the party seeking to derive a favorable legal consequence from a certain fact. In German civil procedure, this is usually the plaintiff for facts establishing a claim, and the defendant for facts negating, suspending, or preventing the claim. The burden of specification is particularly important where, after all evidence has been taken, the court encounters a so-called non liquet (“the matter remains unresolved”), that is, a fact cannot be sufficiently established for one side or the other. In such cases, the burden of specification determines which party bears the residual risk of proof.
How does the burden of specification differ from the burden of proof in the broader sense?
While the burden of proof in the broader sense includes all duties related to the presentation and proof of facts, the burden of specification refers exclusively to the risk that a fact ultimately cannot be established. Thus, while the burdens of presentation and proof specify the obligations to present the facts in detail and to substantiate them with evidence, the burden of specification—when a matter cannot be established—determines who loses the case solely due to the unclarifiability of a circumstance. It serves as an instrument to resolve evidentiary deadlocks when neither the court nor any party can clarify a fact relevant to the decision.
What role does the burden of specification play in administrative court proceedings?
The burden of specification also applies in administrative court proceedings, but peculiarities may arise due to the nature of substantive administrative law. As a rule, the plaintiff bears the burden of specification when claiming a right to a specific administrative action. If the matter concerns adverse measures, the authority may bear the burden of proof. The decisive factors are always the relevant substantive legal bases for the claim and the allocation of legally significant facts in each case. Here too, the burden of specification determines who bears the risk if, after all evidence has been exhausted, a matter remains unresolved.
Are there statutory provisions on the burden of specification in German law?
In German law, explicit statutory provisions on the burden of specification exist only in individual cases, for example in the Product Liability Act (§ 1 (4) ProdHaftG) or in the Civil Code for certain claims (§ 280 (1) BGB in conjunction with § 241 BGB). Otherwise, the allocation of the burden of specification is derived from the general principles of civil procedure and the structure of the particular substantive claim (“He who asserts bears the burden of proof”). In special scenarios, such as in employment law or tenancy law, the assignment of the burden of specification has sometimes been refined by case law.
Can the burden of specification be influenced by party agreement?
In principle, parties under civil law may, by contractual agreement, modify the burden of proof and thus the burden of specification in favor or to the detriment of a party. These so-called clauses reversing the burden of proof are only permitted with limitations; for example, within the scope of standard terms and conditions (§ 309 no. 12 BGB), they may not result in an unreasonable disadvantage to the contractual partner. In employment law and consumer contracts, special protective provisions must also be considered, further restricting the possibility of party agreements.
What is the significance of the burden of specification in factually unprovable circumstances?
In factually unprovable circumstances, where the available means of evidence cannot clarify the matter, the court does not weigh probabilities but relies solely on the burden of specification to decide the case. In these situations, the court may not construct its own conviction (“free judicial assessment of evidence” has limits), but must assign the risk that a decisive fact cannot be established to the party who bears the burden of specification for that point. This serves procedural legal clarity and prevents, in effect, the suspension of applicable legal provisions due to a lack of proof.
