Legal presumption: when the law presumes something

Quick overview:

A legal presumption is a legal assumption that a fact exists even if it is not directly proven. The court assumes it to be true until someone presents evidence to the contrary. Most often, it changes the burden of proof – the one challenging the presumption must actively prove it. There is a distinction between rebuttable presumptions (the opposite can be proved) and irrebuttable presumptions (the opposite cannot be proved).

What is a legal presumption

A legal presumption is a device by which the law says, “A fact is presumed to be true.” In other words – The court assumes a certain presumption without it being directly proven. The purpose is to simplify legal relationships and avoid complicated proof where it would be impractical or nearly impossible.

Typically, the presumption is used where:

• it would be very difficult to prove the true state of affairs,
• there is a need to protect the weaker party,
• the law wants to promote stability in legal relations,
• it is necessary to clearly identify who bears the burden of proof.

For example, if a debtor acknowledges a debt in writing, the law presumes that the debt existed to the extent acknowledged. The creditor no longer has to prove the creation of the debt in a complicated manner – on the contrary, the debtor has to prove that the debt did not exist or has ceased to exist.

As an example, consider the case of a businessman who signed an acknowledgement of a debt of CZK 350,000. He subsequently claimed in court that the amount did not correspond to reality. However, the court assumed that the debt existed and the entrepreneur had to actively prove otherwise. He failed to do so and lost the case.

Thus, the legal presumption is not a “trifle in the law”. It is a procedural tool that can resolve a dispute before detailed proof is even begun.

What types of legal presumptions exist

Rebuttable presumption

A rebuttable presumption can be proved otherwise. If this is successful, the presumption ceases to operate.

Typical examples:

• presumption of paternity of the mother’s husband,
• the presumption of correctness of the entry in the public register,
• thepresumption of the existence of a debt on acknowledgement.

Rebuttal of the presumption means that a party produces evidence that challenges the legal presumption. Mere allegation is not enough, but active proof is required.

Irrebuttable presumption

For an irrebuttable presumption , the law does not allow proof to the contrary. Once the statutory conditions are met, the legal consequence occurs without the possibility of defence. What is sometimes called an “irrebuttable presumption” may in practice be close to a legal fiction – the law simply sets up a state of affairs against which the contrary can no longer be proved.

These presumptions are rare and the law tends to use them where it wants to create a definitive legal state.

The difference between the two types is key – if you have an irrebuttable presumption against you, the dispute is conducted in a different way to a rebuttable presumption.

Not sure which type of presumption applies to your case? Contact us. We will assess your situation and suggest a course of action.

How a legal presumption differs from a legal fiction

These terms are often used interchangeably, but they mean something different.

A legal presumption presupposes the existence of a fact that is not certain to have occurred. A legal fiction, on the other hand, deliberately establishes that something is true even though we know it has not happened.

A typical example of a fiction is the fiction of delivery. If the addressee does not take delivery of a parcel within the storage period, it is deemed to have been delivered even if he has not actually received it.

A fundamental difference:

• the presumption can (usually) be rebutted,
• a fiction cannot, as a rule, be refuted.

In practice, this difference has a major impact – for example, in the running of time limits or in litigation.

Where you most often encounter legal presumptions

Presumptions in civil law

They are very common in contractual relationships. For example, the acknowledgement of a debt creates a presumption that the debt existed to the extent acknowledged. This shifts the burden of proof to the debtor.

Another typical example is public lists (e.g. cadastre). The law is based on the presumption that what is recorded in the public register corresponds to the reality and, in some cases, also protects the one who in good faith acquires a right for a consideration according to the recorded status – even if it later turns out that the reality was different

Presumptions in family law

Here are typical presumptions of paternity:

• the mother’s husband is presumed to be the father of the child,
• if there has been a consensual declaration by the parents,
• third presumption – the court’s determination of paternity (in simple terms, depending on who the child’s mother had sexual intercourse with at the relevant time, the court judges this by the evidence, often with the help of expert reports/DNAs)

These presumptions decide who is legally considered the father of the child – and therefore who has parental rights and the obligation to pay maintenance.

For example, we represented a client who was automatically registered as the father because he was the husband of the mother at the time of the child’s birth. It was not until several years later that he discovered that he was not the biological father. The only option was to bring an action to deny paternity. However, we had to do it within the time limit set by law (within 6 months from the date he became aware of the facts disputing his paternity, but no later than 6 years from the birth of the child). If we did not meet this deadline, the client would remain the father regardless of the biological reality.

Presumptions in procedural law

In legal proceedings, it is generally the case that each party must prove what it claims. However, if the law provides that a certain state of affairs is “presumed” to exist, the situation changes. The court automatically assumes this presumption – and anyone who disagrees must actively prove otherwise.

How it works in practice: the debtor signs an acknowledgement of debt. This creates a presumption that the debt existed to the extent acknowledged at the time of the acknowledgement. The creditor no longer has to prove how the debt was incurred. On the contrary, the debtor has to prove that the debt was not incurred, has been repaid or is invalid. If he fails to produce evidence, the court will proceed on the basis of the presumption and uphold the action.

The law may provide for a fiction of service or a presumption of a certain legal status if specific conditions are met. Once these conditions are met, the court considers them proved until someone brings evidence to the contrary.

The problem arises when a party does not realise that the presumption works against him. Often, they defend themselves by simply saying “it’s not true” but fail to present evidence. But it is not enough to disagree with the presumption; it must be rebutted.

This is why presumptions in procedural law often decide a dispute before the court even gets to the detailed evidence.

Can a presumption be negotiated into a contract?

Yes, parties to a contract can formulate a clause such as “it is presumed that…”. Typically, for example:

• that the work has been accepted without defects, unless the defects are notified within a certain period of time,
• that the invoice was received on the third day after dispatch,
• that a certain fact has been tacitly agreed.

However, such provisions must respect the law and must not circumvent mandatory rules. In consumer relations, certain presumptions may be invalid due to an imbalance between the parties.

Checklist: How to correctly formulate a contractual presumption

1. Check that it is not a mandatory regulation that cannot be changed.
2. Clearly define the conditions under which the presumption arises.
3. Set reasonable time limits.
4. Assess the risk of invalidity in relation to the consumer.
5. Consider the implications for the burden of proof.

Legal review is recommended before including such a provision in a contract. A poorly drafted presumption may be invalid or backfire.

How the presumption affects the burden of proof

The fundamental effect of the presumption is that it changes who has to prove what. Generally, each side proves its allegations. However, if the law establishes a presumption, the default position is “set” and the burden of proof shifts to the party who challenges it. This can make the procedural position significantly more difficult. It is not enough to assert that a fact is not true; it must be refuted by evidence.

It is at this stage that the outcome of the dispute is often decided. If you are facing a lawsuit and the law puts a presumption against you, it is crucial to set the right procedural strategy right from the start. However, an experienced attorney knows this and should know how to prepare such a strategy.

Presumptions are subtle, but their impact is substantial. Consulting with an attorney will often prevent unnecessary procedural mistakes.

Summary

A legal presumption is a legal assumption of a fact. If the law says “it is presumed”, the court automatically assumes the state of affairs – and anyone who disagrees must prove otherwise. There are two basic types of presumptions. A rebuttable presumption allows you to prove otherwise (for example, in the case of an acknowledgement of debt or a presumption of paternity). An irrebuttable presumption, on the other hand, does not allow proof to the contrary and creates a definitive legal state.

It is important to distinguish a presumption from a legal fiction. A presumption presupposes the existence of a fact until it is rebutted. With a fiction, the law deliberately presupposes that something is true even though we know that it has not actually occurred (for example, the fiction of service).

Presumptions are mainly applied in civil law (e.g. acknowledgement of debt and shifting the burden of proof), in family law (presumptions of paternity with strict time limits for their denial), in procedural law (setting the initial state of proof), in contractual practice (deeming clauses).

In the case of the first presumption of paternity, the mother’s husband may bring an action within 6 months of becoming aware of the doubt, but no later than 6 years after the birth of the child. After the expiry of the time limit, the right is extinguished.

Contractual presumptions are possible, but they must respect mandatory rules – i.e. statutory provisions that cannot be derogated from. Otherwise, there is a risk of nullity.