BGH on the legal consequences of thwarting evidence

The clarifying BGH ruling of 16.11.2021 (case no. VI ZR 100/20) on the legal consequences of obstructing evidence

In a recent ruling, the Federal Court of Justice (BGH) made important findings in this regard and, in particular, eliminated a frequently encountered misconception that evidence is deemed to have been provided in the event of the obstruction of evidence. The BGH stated in its ruling of 16.11.2021 (case no. VI ZR 100/20):

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Contrary to the opinion of the appeal, however, the plaintiff is not deprived of proof of his allegations in this regard because he could be accused of obstructing evidence due to the sale of his vehicle in September 2017. Evidence can only be said to have been obstructed if the party not bearing the burden of proof culpably makes it impossible or more difficult for the opposing party bearing the burden of proof to provide evidence by destroying or withholding existing evidence or making its use more difficult (BGH, judgments of June 25, 1997 – VIII ZR 300/96, NJW 1997, 3311, juris para. 18; of June 11, 2015 – I ZR 226/13, WRP 2016, 35 para. 44 – Deltamethrin I mwN). However, by selling his vehicle, the plaintiff did not impede the defendant’s burden of proof, but at most his own. This is because he is obliged to provide evidence that his vehicle was completely and professionally repaired in accordance with the specifications of the pre-trial expert.

Apart from this, the assumption of a frustration of proof does not lead to the legal consequence claimed by the appeal. If the prerequisites for the obstruction of evidence by the opponent of the party with the burden of proof are met, the burden of proof may be eased in favor of the party with the burden of proof, which may in some circumstances go as far as reversing the burden of proof. The obstruction of evidence, on the other hand, does not mean that no evidence can be taken at all and that the submission of the party with the burden of proof would be considered proven (see BGH, judgment of June 11, 2015 – I ZR 226/13, loc. cit. para. 48 et seq. – Deltamethrin I mwN).

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