Tuesday, May 14, 2013

Affirmanti, non neganti, incumbit probatio

a more common form: Ei incumbit probatio qui dicit, non qui negat

Meaning: The proof lies upon one who affirms, not upon one who denies.

The maxim provides a rule in establishing a presumption of who initially carries the burden of proof. This is a deep-rooted and well known maxim, mentioned in the Blackstone's Commentaries (Book 3, p.366 (1791)) as one established both in common and civil laws. It appears to be a part of the Justinian I's Corpus Juris Civilis (Digest book*), completed in 533 A.D. And even there, it is referred as "A maxim of Paulus," enforced by the Emperor Pius' rescript. Its full cite and a detailed account are given here.

It is "[a] cognate maxim, which must be considered in conjunction with the other maxim, [] "actore non probante, absolvitur," which means if a plaintiff does not prove his case, the defendant is absolved. The two maxims must be read together to reach the familiar principle that the burden is upon the plaintiff to establish by the proof the essentials of a recovery as declared in his pleading and that he must do so by the greater weight of the evidence." Chaney v. State, 1988 Tenn. Crim. App. LEXIS 54 (Tenn. Crim. App. Jan. 22, 1988).

Alternative forms [number of US cases mentioning a maxim is in brackets]: besides the mentioned above "actore non probante, absolvitur,"[8] and the most popular in this group "ei incumbit probatio qui dicit, non qui negat,"[38], dictionaries mention the following maxims as similar or synonymous: "semper præsumitur pro negante,"[2] "actori incumbit probatio,"[1] "actore incumbit onus probandi,"[0] "semper necessitas probandi incumbit ei qui agit,"[0]  "factum negantis nullo probatio,"[0] "probandi necessitas incumbit nilli qui agit,"[0] "per rerum naturam, factum negantis nulla probatio est,"[0] "in genere quicunque aliquit dicit, sivi actor sivi reus, necesse est ut probat."[0]

Earliest US referenceForsyth v. Nash, 4 Mart. (o.s.) 385 (La. 1816) [actore non probante absolvitur reus].

Latest US referenceChaney v. State, supra, 1988 [title maxim]; Ex parte Rogers, 68 So. 3d 773 (Ala. 2010), remanded 2011, corrected 2012. [ei incumbit probatio qui dicit, non qui negat]

Latest California reference: the principal is reflected in California Evidence Code, Section 500. In the caselaw, there is only one case for the title maxim--Kouba v. Allstate Ins. Co., 523 F. Supp. 148 (E.D. Cal. 1981). There are also two Cal. cases for the most popular form [ei incumbit ...], 41 Cal. 88 and 50 Cal. 64, but these cases are not recent: 1871 and 1875, respectively, and the quotes belong to parties' argument, not to the body of the opinion.

Search index: for the title maxim, the index 1/4 (Lexis); Google gives 26,100 strict search results (as of 5-14-13). "Ei incumbit probatio qui dicit, non qui negat" is mentioned in 38 US cases and returns 254,000 Google search results (5-14-13).

Conclusion: the title maxim, despite its poetic rhyming and being easy to memorize, is not popular, but, in at least one form is still in some use. With as recent citation as 2010, the maxim definitely remains alive.

* Justinian Digest was only fully translated into English in 1985, so this work is not available in a free scanned mode. The full set I saw on Amazon (4 books) was offered for $500+, used.

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