BGH on the legal consequences of thwarting evidence
LEGAL+ NEWS
In legal disputes, it happens time and again that a party impedes the opponent’s presentation of evidence by thwarting evidence. In these cases, the practical question arises as to whether and, if so, with what legal consequences it can be assumed that evidence has been obstructed.
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):
“(…)
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).
(…).
This judgment on the possible legal consequences of the obstruction of evidence contains the following important findings for the conduct of proceedings:
- Obstruction of evidence refers solely to the case where the party not bearing the burden of proof makes it impossible or difficult for the other party to provide evidence.
- If necessary, the legal consequence in favor of the party with the burden of proof may be a reduction in the burden of proof and, under certain circumstances, a reversal of the burden of proof.
- One of the possible legal consequences of the obstruction of evidence is not that the evidence is deemed to have been provided, with the result that the disputed fact would be deemed to have been proven.
LATEST ARTICLES
Degree of completion of the work
The standards relating to the right to refuse acceptance (Section 640 (1) sentence 2 BGB, Section 12 (3) VOB/B) state that acceptance of the work may not be refused due to insignificant defects. There is no statement on the required degree of completion of the work as a prerequisite for acceptance.
However, the question of what degree of completion the work must have reached in order to be considered ready for acceptance is very important, particularly in the case of plant construction, which is usually very complex.
Major deficiency in plant engineering
Answering the question of whether there is a significant defect is very difficult, especially in often very complex plant construction. The absence of major defects is the decisive prerequisite for acceptance. The latter has considerable legal and practical significance: the start of the warranty periods is regularly linked to this. In addition, the due date of a considerable part of the agreed remuneration generally depends on acceptance.
Formal acceptance under building law
Particularly in the case of complex (plant) construction projects, the contracting parties often agree – usually on the basis of the VOB/B – to carry out a so-called formal acceptance. The following article deals with the question of what such a formal acceptance is actually all about.
CONTACT
+49 (40) 57199 74 80
+49 (170) 1203 74 0
Neuer Wall 61 D-20354 Hamburg
kontakt@legal-plus.eu
Benefit from my active network!
I look forward to our networking.
This post is also available in: DE
