Conflict of Laws. Contributory Negligence. Burden of Proof

1930 ◽  
Vol 39 (6) ◽  
pp. 901
Keyword(s):  
Burden Of Proof ◽  
Conflict Of Laws ◽  
Contributory Negligence

scholarly journals Zum kollisionsrechtlichen Umgang mit sachenrechtlichen Eigentumsvermutungen aus dem Besitz

2021 ◽  
Vol 30 ◽  
pp. 90-98
Author(s):  
Aleksandar Zivanic
Keyword(s):  
Burden Of Proof ◽  
Civil Code ◽  
The Other ◽  
Conflict Of Laws ◽  
The One ◽  
Made In

A presumption is made in the favour of the possessor of a movable thing that he is the owner of the thing, and likewise it is presumed that a former possessor was the owner during the term of his possession. However, legal presumptions such as those behind the German Civil Code’s §1006, subsections 1 and 2 (or §90 of the Estonian Law of Property Act) are shifting the burden of proof to the other party, the one who is not or was not the possessor of the movable. The paper examines the attendant issues with regard to conflict of laws, with the conclusion that it remains unclear whether legal presumptions arising from possession should be qualified by the lex rei sitae doctrine (per the Introductory Act to the German Civil Code, Article 43, Subsection 1), instead as ‘rights over an object’ (under that article’s Subsection 2), or in line with procedural regulations (lex fori).

Ch.7 Non-performance, s.4: Damages, Art.7.4.7

2015 ◽  
Author(s):  
McKendrick Ewan
Keyword(s):  
Burden Of Proof ◽  
Contributory Negligence ◽  
English Law

This commentary analyses Article 7.4.7 of the UNIDROIT Principles of International Commercial Contracts (PICC) concerning harm due in part to the aggrieved party. Art 7.4.7 deals with the case in which the harm suffered by the aggrieved party stems in part from its own act or omission or to an event for which it bears the risk. In such a case, the amount of damages shall be reduced to the extent that these factors have contributed to the harm, having regard to the conduct of each of the parties. The principle enshrined in Art 7.4.7 is equivalent in English law to the principle of contributory negligence. The burden of proof is upon the non-performing party to establish that the harm was due in part to an act or omission of the aggrieved party or to another event as to which the aggrieved party bears the risk.

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