Chapter 6: The Protection of Rights Flashcards
Why must legal facts be clear and certain?
To promote the circulation of wealth, the legal status/facts must be clear and certain (easy application). They must also be publicized so that everybody is aware of them.
Evidence (definition)
Evidence forms proof but doesn’t always lead to proof.
Who bears the burden of proof?
The plaintiff bears the burden of proof (must provide evidence to substantiate his claim).
Legal presumptions (definition)
Legal presumptions are statutory provisions that provide exceptions to the general rule
Testimony (definition and cases where it is admissible)
Testimony is a form of evidence, but it is not always admissible (courts tend to mistrust testimony due to bias/possible misunderstandings). Testimonials are limited to national contracts and in the case of loss/destruction of a written contract.
Confessions (definition and types)
Confessions are statements made by a party which are unfavorable to them.
They can be juridical or extra-juridical (but extra-juridical need to be proved).
Statements under oath (definition)
When there is insufficient evidence courts resort to statements under oath. Refusal of taking an oath is considered against you, and courts make decisions favoring the other party’s more strongly.
Perjury (definition)
Lying under oath. It is a criminal offence.
Presumption (definition)
A presumption is reasoning that allows inferring unknown facts from given evidence. It is only admissible in the same cases as testimony. “Legal-presumptions” are when a fact is presumed to have occurred, without any evidence.
Limitations (definition)
Limitations are imposed to avoid inactivity. They do not apply to inalienable rights. At the end of a period of limitation, the person is freed from obligation. Limitations start at the start of a contract. They can be suspended or interrupted.
Two courts of the Italian legal system
ordinary (civil and criminal) and administrative jurisdiction
Steps for legal actions (Hint: appeal to higher courts)
1) Check ground and evidence
2) Issue a statement
3) Appeal to a higher court. (Tribunal –> Justice of peace –> Court of Appeal –> Corte di Cassazione). Bound to higher judgment.
Arbitration (definition)
Arbitration may be used as an alternative to solve disputes. An arbitrator is called upon to act as a negotiator. They issue an “arbitral reward” which may be statutory (according to law) or equitable (according to equity).
