presumptions

In the English legal system there are three types of presumptions that may arise during the course of litigation: 1. presumptions of fact; 2. irrebuttable presumptions of law; and 3. rebuttable presumptions of law.

Presumptions of fact arise from the existence of facts, such as the presumption of death, where the party wishing to rely on the presumption shows that persons who are likely to have heard from the person have not heard from them and all enquiries in the circumstances have been made.

One of our favourites, res ipsa loquitur applies when the very acts speak for the themselves, such as where an accident takes place on an employers' premises but the claimant cannot prove the exact circumstances leading to the accident. It is the accident res ipsa loquitur that the accident on the premises leads to the application of the presumption that the employer has been negligent.

Another instance of a presumption at law lies in the context of penalty clauses and liquidated damages. There is a presumption that it is a penalty clause when a single lump sum is payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others trivial damage.

Another instance of a presumption is that every person is entitled to enter into a contract, that is, that they have contractual capacity See contractual incapacity.

Usage: The presumption of law was rebutted by the defendant.

Related Words: character evidence; real evidence; documentary evidence; hearsay; opinion evidence; contractual incapacity.