Analysis of Ordinance No. 23286 of 2024: Burden of Proof and Use of Acquired Evidence

The recent Ordinance No. 23286 of August 28, 2024, issued by the Court of Cassation, represents an important opportunity to reflect on the principle of the burden of proof in Italian civil law. In this case, the Court reiterated that evidence obtained at the request of one party can also be used in favor of the opposing party, dispelling some myths about the rigidity of the evidentiary principle.

The Principle of the Burden of Proof

The principle of the burden of proof is fundamental in civil law. It establishes that the party asserting a right must provide proof of its existence. However, the Ordinance in question clarifies that this rule does not imply that only evidence produced by the party bearing the burden can be considered. On the contrary, the Court emphasized that acquired evidence, even if requested by the other party, can contribute to the judge's assessment.

Implications of the Ruling

The ruling in question is based on the principle of evidentiary acquisition, which states that evidentiary findings, regardless of the party that produced them, are all valid for forming the judge's conviction. This position is founded on certain articles of the Code of Civil Procedure and the Constitution, which establish the right to a fair trial and the importance of considering all available evidence.

• Article 115 of the Code of Civil Procedure: establishes the general rule on the burden of proof.
• Article 116 of the Code of Civil Procedure: concerns the admissibility of evidence and the methods of presentation.
• Article 245 of the Code of Civil Procedure: deals with testimonial evidence and its modalities.
• Article 2697 of the Civil Code: defines the principle of the burden of proof in contracts.

Party bearing the burden - Evidence obtained or acquired at the request of the party not bearing the relevant burden - Use in favor of the opposing party in the decision-making process - Lawfulness - Basis. The principle of the burden of proof (a residual rule of judgment whereby the lack of elements in the evidentiary findings suitable for ascertaining the existence of the disputed right leads to the defeat of the party bearing the burden of proving the relevant constitutive facts) does not also imply that the proof of the well-foundedness of the claimed right depends solely on the evidence produced by the party bearing the relevant burden, and cannot, furthermore, be inferred from that obtained, or in any case acquired, at the request and initiative of the opposing party. In fact, in our procedural system, along with the principle of disposition, the so-called "principle of evidentiary acquisition" prevails, according to which evidentiary findings, however obtained (and regardless of the party at whose initiative they were reached), all contribute, without distinction, to the formation of the judge's free conviction, without their origin being able to condition this conviction in one way or another, and without, consequently, excluding the usability of evidence provided by one party to draw arguments in favor of the opposing party.

Conclusions

In conclusion, Ordinance No. 23286 of 2024 represents a significant step forward in the clarity of evidentiary law in Italy. The Court has reaffirmed that the use of evidence must be evaluated in a broader and more inclusive manner, allowing even those who do not bear the burden of proof to benefit from evidence provided by the opposing party. This decision not only promotes a fair trial but also encourages greater attention and rigor in the acquisition and presentation of evidence by all parties involved in the proceedings.