8. Presumptions

Question 1

What is a presumption?

Answer 1

Inference drawn from ascertained facts

NO need for proof of presumed fact

Question 2

What are the reasons for allowing presumptions?

Answer 2

Serves to correct imbalance resulting from one party’s superior access to the proof on a particular issue

Serves as timesaver to eliminate the need for proof of a fact that is highly probable in any event

Serves as social/economic policy device to handicap the disfavoured adversary

Question 3

What are the different types of presumptions? What are the differences?

Answer 3

True presumptions

• Rebuttable
• Shifts burden of production to adverse party

Permissible inferences

• NOT rebuttable
• NOT shift burden of production to adverse party

Conclusive presumptions (rule of substantive law)

• NOT rebuttable
• NOT shift burden of production to adverse party

Question 4

Do true presumptions shift any burdens to other parties (Rule 301)?

Answer 4

Shifts burden of production to adverse party (against whom presumption operates)
- To rebut presumption

NOT shift burden of persuasion to adverse party
- Remains with original party who made presumption

Question 5

What are examples of permissible inferences?

Answer 5

Negligence (res ipsa loquitor)

Intentionally destroyed evidence not favourable to spoliator

Will drafted by attorney (also principal beneficiary of will) creates undue influence

Question 6

What are examples of conclusive presumptions?

Answer 6

Child under 7 cannot commit crime

Question 7

What are examples of true presumptions?

Answer 7

Legitimacy

Death not caused by suicide
- Civil cases

Sanity

Death based on;

1) 7 years (consecutive)
2) Absence (not heard from)

Owner’s ownership of car - Driver as agent

Mail delivered

Solvent person

Valid marriage