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Burden of Proof

The 1901 Jewish Encyclopedia

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In law, the obligation resting upon one or other of the parties to a suit to bring proof of a fact when the opposite party alleges the contrary. The Talmudic phrase is "'alaw ha-rayah" (on him is the proof). Of course, the plaintiff who seeks to make out a case for relief states his side first; and whatever the defendant admits need not be proved. But in the jurisprudence of the Talmud there is a broad exception; for everything in the nature of a penalty ("ḳenas")—e.g., the twofold, fourfold, and fivefold compensation in case of theft—can only be adjudged upon the testimony of witnesses. An acknowledgment by the defendant may be of no use, or may even result in averting the penalty. In an ordinary suit for debt, the plaintiff would first prove by witnesses, or by the production of a bond, that the defendant owes him a given sum for a loan or on a credit-sale; and the defendant would then have to produce his acquittance in writing ("shober"), or the witnesses in whose presence either the debt was repaid or the creditor acknowledged its discharge.

So far there is no difficulty. But some cases are more complex; and to these two maxims are applied: (1) "hammoẓi me-Ḥabero 'alaw ha-rayah" (he who takes away from his neighbor [that is, who asks a judgment for money or property], on him isthe proof), and (2) "nekasim be-ḥezḳatan" (property [abides] in its status); that is, no change in rights is presumed unless proved.

The first maxim is illustrated in a case where two of the defendant's oxen, one "forewarned" and the other "innocent," have pursued the plaintiff's ox, and one of them has killed the latter, but the witnesses can not say which of the two caused the death. It will be presumed that the "innocent" ox did it; and the plaintiff will recover only half-damages. As half-damages are paid only out of the price of the injuring animal, if both the defendant's oxen were "innocent," it will be presumed that the injury was committed by the less valuable of the two (B. Ḳ. 3:11, where other instances of the same rule are also found).

The other maxim is illustrated where a man and his father are killed by one and the same accident, and it can not be shown who died first. The father's heirs say the son died first; the son's creditors say the father died first. According to the opinion of the school of Hillel, which prevails, the property goes to the heirs upon the ground that "property abides in its status"; though here the other maxim would lead to the like result. If a man and his wife die together, the maxim of the abiding status gives the property brought into the marriage by the wife, not assumed by the husband at a fixed value and which is still on hand, to the wife's heirs, but frees the husband's heirs from paying her jointure (B. B. 9:8,9).

In cases of doubt which can not be solved by these rules—for instance, where husband and wife die together, as to the disposal of the "iron flock property" (that is, such part of the dowry as the husband has converted to his own use and is personally bound for)—the only rule is, divide into halves. In such a case the husband's heirs would take one-half, and the wife's heirs one-half (see Gemara on last-cited section, 158b et seq.).

It will be seen that no allowance is made for circumstances that would raise a greater likelihood on behalf of one of the alternatives—e.g., that the "fore-warned" ox rather than the "innocent" one had done the mischief, the larger ox rather than the smaller one. And where two persons die through one and the same accident, no presumption is indulged, as in the Roman law, that the one who by age or sex had the greater power of resistance lived the longer.

Another maxim may be mentioned here. When A has no proof but B's admission for one fact, he must give B credit for such other fact as the latter chooses to couple with it. For instance (Ket. 2:2), B says to A, "This field in my possession belonged to your father, but I bought it from him." If A has no other proof of his father's title, he must admit the purchase; for "the mouth which bound is the mouth that loosed." But if A has witnesses of his father's title, then B must bring proof of his purchase.