Is the Standard of Proof any different under German Law than English Law?
The standard of proof in German civil litigation is defined in section 286 German Civil Procedure Rules (Zivilprozessordnung):
Section 286: Evaluation of evidence at the court’s discretion and conviction
(1) The court is to decide, at its discretion and conviction, and taking account of the entire content of the hearings and the results obtained by evidence being taken, if any, whether an allegation as to fact is to be deemed true or untrue. The judgment is to set out the reasons informing the conviction of the judges.
(2) The court shall be bound to statutory rules of evidence only in the cases designated in the present Code.
Thus, a certain fact is (only) proven if the judge is personally fully convinced that this certain fact is indeed true. The German word for this is “Vollbeweis”, i.e. full conviction. This is a somewhat higher threshold than the concept of “the balance of probabilities” which is used in common law systems.
However, please note that section 287 German Civil Procedure Rules reduces this high standard of proof threshold (Vollbeweis) for the questions of whether a damage has occurred and what the exact amount of compensation shall be:
Section 287: Investigation and determination of damages; amount of the claim
(1) Should the issue of whether or not damages have occurred, and the amount of the damage or of the equivalent in money to be reimbursed, be in dispute among the parties, the court shall rule on this issue at its discretion and conviction, based on its evaluation of all circumstances. The court may decide at its discretion whether or not – and if so, in which scope – any taking of evidence should be ordered as applied for, or whether or not any experts should be involved to prepare a report. The court may examine the party tendering evidence on the damage or the equivalent in money thereof; the stipulations of section 452 (1), first sentence, subsections (2) to (4) shall apply mutatis mutandis.
(2) In the event of pecuniary disputes, the stipulations of subsection (1), sentences 1 and 2, shall apply mutatis mutandis also to other cases, insofar as the amount of a claim is in dispute among the parties and to the extent the full and complete clarification of all circumstances authoritative in this regard entails difficulties that are disproportionate to the significance of the disputed portion of the claim.
Thus, one must take a close look at what exactly is in dispute between the parties. With regard to the question of damages and their extent, German Courts use a standard of proof concept which is very similar, if not identical with the “balance of probabilities” concept. However, section 287 CPR does, for example, not apply to the question of whether the Defendant has injured the Claimant at all. For this, as for many other questions, the basic rule of “full conviction” (Vollbeweis) remains applicable.
For more on civil litigation and evidence rules in German Courts of law and before German arbitration tribunals:
For the US version of the Guide please go here:
Visit our expert blog on German litigation for much more information
- German Civil Procedure: The Expert Law Blog
- How expensive is a German Lawsuit?
- German Litigation Experts explain Civil Procedure Rules
- Standard of Proof in German Civil Litigation
The law firm Graf & Partners was established in 2003 and has many years of experience with British-German and US-German legal matters.The Anglo-German litigation lawyer team of Graf Legal is well equipped to advise and represent clients from the UK and other English speaking countries. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please contact German lawyer Bernhard Schmeilzl, LL.M. (Leicester), managing partner and head of the litigation department. Bernhard is also frequently asked by British and US Courts and Tribunals or by legal counsels to provide expert reports and legal opinions on German law.