Offer of evidence: Definition and legal basis
Das Offer of evidence is a central term in German civil procedure law as well as in other procedural codes. It refers to the procedural action of a party informing the court which means of evidence it wishes to use to prove its assertions. The offer of evidence therefore represents an important part of the evidentiary procedure and is closely linked to the procedural obligations of the party.
Definition and significance of the offer of evidence
An offer of evidence exists when a party informs the court in precise form as to which contentious fact and with which specific means of evidence it intends to provide proof. This is a formal prerequisite for the taking of evidence by the court. The rules of procedure thus require not only the presentation of a factual assertion but also the offer of a sufficiently specified means of evidence.
Distinction from other terms
The offer of evidence must be distinguished from the mere assertion of a fact and from the summoning or naming of a witness as part of the evidentiary order. It is part of the initiation of evidence, which is a necessary prerequisite for the taking of evidence by the court.
Offer of evidence in German civil procedure law
The offer of evidence is governed by the Code of Civil Procedure (ZPO) in particular in §§ 284 et seq. ZPO. It becomes significant in connection with the burden of presentation and proof.
Form and content of the offer of evidence
A valid offer of evidence requires the party to
- identify a specific, significant disputed fact,
- specify the particular means of evidence (for example, witness, document, expert opinion, inspection),
- and designate the means of evidence with sufficient precision so that the taking of evidence by the court is possible.
The offer of evidence must be formulated with such precision that the court can recognize which fact and with which means of evidence the party intends to prove.
Examples of offers of evidence
- “To support the assertion that the accident took place on 01.01.2022 at 08:00 a.m., witness Max Mustermann is offered.”
- “To prove the fact that delivery took place on 10.02.2023, the original delivery protocol dated 10.02.2023 is presented.”
Timing and subsequent submission of offers of evidence
The offer of evidence should be made at the earliest possible stage of the proceedings, as a rule already in the preparatory briefs pursuant to § 282 ZPO. According to § 296 ZPO, late offers of evidence can be rejected by the court if their admission would delay the proceedings. The requirement for expeditious proceedings in civil cases demands an efficient conduct of the process.
Significance for the evidentiary process and the taking of evidence
The court decides under § 358 ZPO to take evidence only based on the offered means of evidence. Without a formally correct offer of evidence referring to the disputed fact, a judicial taking of evidence generally does not take place. The court may reject or disregard as unsubstantial offers of evidence or initiation of evidence that do not meet the legal requirements.
Consequences of insufficient or defective offers of evidence
An inadequate or missing offer of evidence usually results in the party failing to substantiate its factual assertion in the proceedings and, in this respect, bearing the burden of proof. In particular, for decisive facts, this can lead to a complete defeat in the proceedings.
Offer of evidence in other codes of procedure
Criminal procedure
In criminal proceedings, §§ 244 et seq. of the Code of Criminal Procedure (StPO) regulate the offer of evidence. The application for the taking of evidence is in this respect different from the offer of evidence in civil proceedings but is similar in substance. Here too, a substantiated indication of the means of evidence and the fact requiring proof is necessary.
Administrative procedural law and other areas
In administrative proceedings (§§ 98 et seq. VwGO), social court proceedings (§§ 103 et seq. SGG), as well as labor court proceedings (§§ 58 et seq. ArbGG), the duty to provide a sufficient offer of evidence applies, with certain specifics. Here, the offer of evidence must be suitable and substantiated for the conduct of an evidentiary hearing.
Case law and literature regarding the offer of evidence
The higher and supreme courts have specified the requirements for the offer of evidence in numerous judgments. It has been clarified, for example, that the court is only required to act on sufficiently specified and timely offered means of evidence (cf. BGH, order of 22.11.2016 – VI ZR 47/15). The means of evidence must not be described in vague or speculative terms, but must meet the requirements necessary to establish the facts of the case.
Summary and significance of the offer of evidence for the proceedings
The offer of evidence is of decisive importance for the outcome of the legal dispute, as it forms the basis for the judicial taking of evidence. Care in the formulation and timely submission can have a significant impact on the chances of success. Compliance with statutory requirements and the precise formulation of the offer of evidence are essential in order to fully exercise procedural rights and ensure an effective course of proceedings.
Frequently asked questions
What requirements must an offer of evidence fulfill in civil proceedings?
In civil proceedings, an offer of evidence must meet certain minimum requirements for the court to consider it. First, the offer of evidence must be specific and substantiated. This means that the party bearing the burden of proof must specifically identify the fact to be proved and clearly state which means of evidence (e.g., witness, document, expert opinion) he or she wishes to submit as proof. In the case of witnesses, their names must be given and, if possible, what the witness should testify to. For documents, these must be introduced into proceedings or at least described in such detail that they can be clearly identified. General or global offers, or applications for the gathering of evidence, which merely make general reference to unknown means of evidence, do not satisfy the requirements. Furthermore, the offer of evidence must be made in good time, i.e., at the latest by the end of the oral hearing, unless the rules of procedure (e.g., § 296 ZPO) provide for exceptions.
When is an offer of evidence inadmissible or late?
An offer of evidence can be considered inadmissible if it does not relate to a fact material to the decision or consists only of factual assertions for which no proof is required. Late offers of evidence, which are made only after the expiry of court deadlines or after the close of the oral hearing, may be rejected pursuant to § 296 ZPO if their admission would delay the proceedings and the delay cannot be justified. The court may also reject applications to take evidence if the fact to be proved is already undisputed or admitted, or if the means of evidence is unsuitable, inappropriate, or unavailable. Offers of evidence made without any factual basis are also disregarded.
Is the court obliged to follow every offer of evidence?
No, the court is not obliged to follow every offer of evidence. Although the court must generally examine the evidence offered if the evidence is material and suitable and the offer of evidence has been properly made within the procedural deadlines (principle of ex officio investigation within the framework of party applications), the court can, however, in particular refuse an offer of evidence if it is immaterial, obvious, late or inadmissible, or relates to facts that are already proven by other means (§ 244 para. 3 StPO for criminal proceedings or § 286 ZPO for civil proceedings). Rejection must be given in writing and with reasons.
What role does the offer of evidence play in criminal proceedings?
In criminal proceedings, the offer of evidence has a similar but not identical function as in civil proceedings. The public prosecutor and the defense can make offers of evidence by naming witnesses, experts, documents, or objects for inspection. These offers must be specified precisely in the application and must refer to a concrete fact to be proved. Owing to the principle of ex officio investigation (duty to investigate, § 244 II StPO), the court is obliged to a greater extent to examine the evidence offered, but may also refuse applications for evidence (e.g., in cases of triviality, obviousness, delay, or rejection as exploratory evidence).
What is an exploratory application for evidence and how do applications for the gathering of evidence and offers of evidence differ?
An exploratory application for evidence exists when the applicant merely suspects that a certain set of facts may exist and therefore requests the taking of evidence without having specific factual indications or a concrete assertion. This, as opposed to a proper offer of evidence, is generally not permissible. An application for the gathering of evidence, on the other hand, is aimed at having the court – unlike an offer of evidence – order a particular collection of evidence ex officio, without sufficiently concrete assertions of fact having already been made. Both types of applications thus differ from the classic offer of evidence in that the latter must be linked to the fact asserted in detail and the specifically named means of evidence.
What is the relationship between the offer of evidence and the court’s taking of evidence?
The offer of evidence is the mandatory prerequisite for a judicial taking of evidence. The court may only begin the taking of evidence once a proper offer of evidence has been submitted that relates to a fact requiring proof and material to the decision. Only then are the means of evidence utilized, for example, witnesses are examined, documents are inspected, or expert opinions are obtained. Before taking evidence, the court examines whether the offer of evidence meets the requirements and determines evidence if all prerequisites are met and there are no grounds for refusal.
