Burden of proof in the event of a claim for non-performance. United Sections and minority orientations.

[:it]On the subject of civil liability, the question of the burden of proof of the creditor acting in order to claim the non-performance of an obligation has seen the jurisprudence and doctrine strongly engaged, especially before the advent of the judgment of the S.ections of the Supreme Courtwhich intervened in order to
define a jurisprudential contrast.

The two guidelines are briefly recalled:

The majority one  held that the aggrieved party also has the burden of proving the fact giving rise to the termination, i.e. the non-performance and the circumstances pertaining thereto, according to which it takes on legal significance, it therefore remaining for the defendant to prove the absence of fault only if the plaintiff has actually proved the fact constituting the non-performance.[1]

This orientation was mainly based on the distinction between the remedies provided for in Art. 1453 of the Civil Code (performance, termination, damages). It was observed that while in an action for performance the constitutive fact is the title, in an action for termination there are two constitutive facts: the title and the non-performance. Therefore, the evidence required under Art. 2697 of the Civil Code is different because the constitutive facts are themselves different. In the first case, therefore, proof of the negotiated or legal source of the right of claim will be sufficient, in the second case proof of both the title and the debtor's actual non-performance will be required.

The minority view, on the other hand, held that the burden of proof on the creditor is the same regardless of the action brought by the latter. Specifically, the creditor under Art. 2697 of the Civil Code must simply prove the negotiated or legal source of its right, whereas it is the creditor that will be burdened with proving the extinguishing fact of that right, constituted by the fact of performance.

This argument was based on the fact that the claims for performance, termination for non-performance and damages for non-performance are all linked to the same assumption, namely non-performance. This homogeneity implies that the principle of the presumption of the persistence of the right under Art. 2697 of the Civil Code, according to which once the creditor has proved the existence of a right, the burden of proving the existence of the extinction event is on the debtor, should apply to each of the cases listed in Art. 1453 of the Civil Code.

Le United Sections in 2001 Judgment No. 13533 adhered to the minority orientation, also stating that "is in conformity with the need not to make excessively difficult the exercise of the creditor's right to react to the non-performance, without, however, penalising the right of defence of the non-performing debtor, to apply the principle of traceability or proximity of proof, placing the burden of proof on the party in whose sphere the non-performance occurred in any event".[2]

It should be noted, however, that there have recently been a number of court rulings which, in contrast to the now rather dated ruling of the Unified Sections, go on to state that "whatever the basis of the plaintiff's claim for damages, it is undoubtedly incumbent on the party claiming damages to prove not only the harmful event, but above all its causal traceability to the wrongful act of others."[3]

ABSTRACT

• According to the Unified Sections of the Supreme Court of Cassation On the subject of proof of non-performance of an obligation, a creditor suing for contractual termination, damages or performance only has to prove the source (negotiated or legal) of its right and the relevant time limit, limiting itself to the mere allegation of the non-performance of the other party, whereas the defendant debtor bears the burden of proof of the extinguishing fact of the other party's claim, which is the fact of performance.
• there are some judgments that have recently stated that On the subject of the burden of proof, on the creditor acting for performance, termination or compensation for damages, there is not only the proof of the performance of his obligation, but also the proof of the exact performance and, therefore, it would seem to be applicable also to the hypotheses of defects or non-conformity of the work, as they fall within the category of inexact performance

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