burden of proof

The burden of proof is the onus that lies with a party who wishes to prove a fact, in order to prove some element required by law to make out a cause of action in litigation. The burden of proof usually lies with the wishes to asserts the fact, rather than the party that denies the fact.

Presumptions exist in many instances that may be displaced by the party opposing the claim in litigation. For instance, in commercial dealings leading to a contract businesses are presumed to have intention to enter legal relations (one of the essential elements for a contract to have been formed), as opposed to family or social dealings where the presumption does not apply: the burden of proof lies with the party making the claim to prove that the intention to enter legal relations existed at formation of the contract.

Usage: The burden of proof that the underlying requirements for the formation of the contract lay with the claimant.

Related Words: standard of proof; presumptions; competence; compellability; hearsay; character evidence; confessions; admissions; legal professional privilege; public interest immunity; judicial notice; documentary evidence; real evidence.