Academic journal article Journal of Risk and Insurance

The Burden of Proof and the Liability Rule for Suppliers of Services in the EEC

Academic journal article Journal of Risk and Insurance

The Burden of Proof and the Liability Rule for Suppliers of Services in the EEC

Article excerpt

On November 9, 1990, the Commission submitted to the Council of the European Communities a proposal to shift the burden of proof in cases involving services. Scholars of law and economics have tended to ignore the implications of which party to a legal dispute bears the burden of proof. American tort courts normally expect the plaintiff to prove that the negligence of the defendant caused him injury. However, analyses show that there is no reason a priori that plaintiffs should bear the burden of proof on anything other than proving that there are actual damages. For instance, in situations where little evidence about a defendant's actions exists after an accident, it may be less costly for the defendant to prove that he took due care than it is for the plaintiff to attempt to prove that the defendant did not take due care. In these cases, Coase's Theorem would seem to suggest that, since transaction costs are minimized when the defendant bears the burden of proof, the defendant should bear the burden of proving that he did not cause the damages.

It is this very argument, in fact, that seems to be the basis of the Commission's proposal. …

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