Definition and Meaning of Offer of Evidence
Der Offer of Evidence is a central concept in German civil procedural law and refers to the procedural act by which a party informs the court of the manner in which it wishes to substantiate a specific point of evidence. The party names concrete means of evidence intended to substantiate or refute a disputed factual assertion. The offer of evidence thus serves to promote the court’s search for the truth and is crucial to the course and prospects of success in legal proceedings.
Legal Basis for Offer of Evidence
Offer of Evidence in Civil Litigation
In German civil proceedings, the offer of evidence is an essential component of the burden of substantiation and the taking of evidence. The statutory basis is primarily found in the Code of Civil Procedure (ZPO). Under § 284 ZPO, the court is obliged to consider the evidence offered, provided it has been properly submitted. The offer of evidence becomes necessary as soon as the court applies the burden of proof rules and a party bears the burden of proof for a disputed fact.
Requirements for a Valid Offer of Evidence
A valid offer of evidence requires:
- Specification of the matter to be proven: The party must clearly state the fact to be proven.
- Designation of the means of evidence: It must be expressly stated which means of evidence (e.g., witness, document, expert opinion, inspection, party examination) is to be used.
- Timing of the offer of evidence: An offer of evidence must be made, at the latest, within the oral proceedings, within a set deadline, or at a subsequent stage of the proceedings.
Offer of Evidence in Criminal Proceedings
In criminal procedure law (StPO), the offer of evidence is similarly structured, though special provisions apply especially regarding the court’s official duty to investigate (principle of ex officio investigation). Nonetheless, the participants in the proceedings also have the right to request and offer evidence (see § 244 StPO), which the court must generally take into account.
Offer of Evidence in Administrative Law
The offer of evidence is also significant in administrative court proceedings. This is governed by the regulations of the Code of Administrative Court Procedure (VwGO), with the court having a heightened duty to investigate, so that independent inquiries may be conducted on the basis of an offer of evidence or ex officio.
Forms of Evidence in the Offer of Evidence
Witness Testimony
In the case of witness testimony, the offer of evidence is made by precisely naming the persons to be examined, providing their address for service, and stating the specific facts to which they are to testify.
Documentary Evidence
For documentary evidence, the party must specify the relevant document and, where possible, submit it to the court. Alternatively, it is permissible to offer evidence by requesting the document from another party.
Expert Evidence
Here, the offer of evidence is made by naming an expert or a specific field in which an expert report is to be obtained. An expert opinion prepared by a party itself is not sufficient.
Inspection
An offer of evidence by inspection identifies the matter to be proven as something to be perceived by the judge, for example, by inspecting places, objects, or situations.
Examination of a Party
An offer of evidence by examination of a party is made by naming the party and stating the facts to be proven; however, the court decides on the admissibility according to the special conditions set forth in §§ 445 et seq. ZPO.
Requirements and Formalities of the Offer of Evidence
Precision and Specificity
The offer of evidence must be substantiated and specific. Vague, imprecise, or speculative applications are not admissible and can be rejected by the court. A clear definition of the factual issue in question and an exact description of the means of evidence are decisive.
Timing and Belated Offers of Evidence
Offers of evidence should generally be made as early as possible in the proceedings, especially within court deadlines. Late offers of evidence may be rejected as untimely under §§ 296, 282 ZPO if they would delay the resolution of the case and no sufficient excuse is provided.
Consequences of Omitted or Defective Offers of Evidence
If a proper or timely offer of evidence is omitted, the court is generally not required to take evidence ex officio (exceptions exist in criminal and administrative proceedings). The party then bears the risk of the burden of proof and risks losing the case.
Offer of Evidence and Judicial Duty to Instruct
The court is obliged under § 139 ZPO to point out unclear or incomplete offers of evidence. The aim is to ensure, in the interests of procedural economy and equality of arms, that the parties can exercise their rights fully.
Distinction between Offer of Evidence and Motion to Take Evidence
The term ‘offer of evidence’ must be distinguished from the ‘motion to take evidence.’ While the offer of evidence focuses on naming the means of evidence, a formal motion to take evidence is an official request to gather evidence. In civil procedure, the offer of evidence is sufficient, while in criminal proceedings a formal motion to take evidence is mandatory at certain stages.
Summary
The offer of evidence is a central procedural instrument in the German legal system that ensures parties can substantiate disputed facts by admissible means of evidence. The proper and timely exercise of the offer of evidence is often decisive for the outcome of the proceedings and is subject to strict legal requirements regarding form, content, and deadlines. A well-founded and precise offer of evidence sets the course for successful legal enforcement and enables the court to establish the truth in an appropriate manner.
Frequently Asked Questions
Who bears the burden of proof for an offer of evidence?
In German civil law procedure, the so-called ‘principle of presentation’ applies, i.e., each party must present the facts favorable to itself and, in case of dispute, must also prove them. Whoever relies on a particular fact must offer evidence for it if the opposing party disputes it. In certain circumstances, for example due to statutory provisions (such as reversal of the burden of proof under § 280 (1) sentence 2 BGB), the burden of proof may also be shifted. The offer of evidence is usually made by naming suitable means of evidence as part of the pleadings. The court examines, on a case-by-case basis, whether the offer of evidence for the disputed fact is actually required and sufficient or whether, for example, undisputed facts are present.
How must an admissible offer of evidence be made in civil proceedings?
For a formally valid offer of evidence, § 373 ZPO requires that the party bearing the burden of proof must name the specific means of evidence (e.g., witnesses, documents, expert opinion, or inspection) and clearly specify the specific disputed fact to which the offer of evidence relates. The mere blanket designation of means of evidence without a clear allocation to individual facts is generally insufficient. When naming a witness, for example, it is usually necessary to provide their address for summons as well. If there is no sufficient individualization of the offer of evidence, the court may reject the application as unsubstantied.
When can an offer of evidence be rejected as tardy?
According to the provisions of §§ 296 et seq. ZPO, the court may reject an offer of evidence as tardy if it is submitted only after a court deadline has expired, after the close of oral proceedings, or belatedly in the appellate instance, and the delay is not excused. This applies in particular if admission of the belated offer of evidence would delay the resolution of the case. However, the court must carefully examine the requirements for tardiness and take account of the right to be heard. In labor court proceedings (§ 67 ArbGG) and in non-contentious jurisdiction, partially different rules apply.
What is the significance of the obligation to substantiate when offering evidence?
The obligation to substantiate requires the party bearing the burden of proof to present its substantive submissions in such a clear and detailed manner that the court is able to recognize which specific facts are to be proven by which means of evidence. The offer of evidence must not be limited to general or vague assertions. In particular, when submitting a witness, the party must indicate what the witness perceived and to what points they are expected to testify. If this requirement is not met, the court may reject the offer of evidence as insufficient, since otherwise it would amount to a so-called ‘fishing expedition,’ which is inadmissible under German civil procedural law.
Can the court ignore an offer of evidence or must it always follow one?
A court is only required to follow an offer of evidence that is proper and timely, and only if it relates to a fact that is material to the decision and disputed. If the facts alleged as the subject of evidence are irrelevant or already undisputed, the court may and must reject the offer of evidence. The same applies to inadmissible ‘motions to investigate evidence,’ in which a party has offered evidence on some unspecified fact. The court must, however, give reasons in its judgment for failing to consider an offer of evidence; otherwise, this may constitute a violation of the right to be heard.
What are the consequences of an insufficient or missing offer of evidence?
If a party is unable to present a sufficient offer of evidence for a fact that is material to the decision, or if its submissions lack sufficient substantiation, this is generally to its detriment. The court must then decide in favor of the opposing party, as the necessary fact is considered not to have been proven. An untimely or defective offer of evidence will therefore usually result in loss of the case with respect to that particular fact.
Is an offer of evidence also required in interim relief proceedings?
In preliminary injunction and attachment proceedings, it is generally sufficient to provide prima facie evidence as per § 294 ZPO, i.e., to present the facts convincingly and substantiate them by documents, affidavits, or other means of evidence. Full proof is generally not required here; nevertheless, some offer of evidence or reference to suitable means of evidence must be made. The court examines whether, given this lower standard of proof, the matter is still plausible and, as a rule, can be regarded as sufficiently likely.
