LA RIPARTIZIONE DELL'ONERE DELLA PROVA NEGLI ORDINAMENTI DI COMMON LAW

In the first chapter («La natura dell’onere della prova») it is carried out a preliminary survey on the most important theoretical principles of the allocation of the burden of proof in the common law systems. After an introduction on the material facts, in the second section («La bipartizione dell’onere della prova in burden of persuasion e burden of production») it is pointed out that the burden of proof concept is divided into two separate burdens: the burden of persuasion and the burden of production. In the third and in the fourth chapter it is carried out an in depth analysis of both the persuasion burden and the production burden. The second chapter («La ripartizione dell’onere della prova») focus on the analysis of the tests that American judges use to allocate the burden of proof between the plaintiff and the defendant. It is pointed out that there is not a single test that can solve in every case the question of the allocation of the burden of proof. Thus, it appears really important the power of the judge to instruct the jurors on the content of the verdict in the eventuality that the judgement on the facts will be in a state of semiplena probatio. In the last section of this chapter it is studied the matter of presumptions, and how it is influenced by the presence of two burdens of proof. The third chapter («Analisi casistica della giurisprudenza») is an analysis of the most important American cases on the allocation of the burden proof. It is divided into three different sections. The first section is on the family law, and concern with will contests and matrimonial legitimacy contest in the well-known bigamy issues. The second section is on the contract law, and refers specifically to the breach of contract cases in judgements founded on bailment contracts and insurance contracts. The third section is on the tort law, and focus on the most important cases where the negligence of the defendant must be presumed. Eventually, the last paragraph of this section will concern with the question of the allocation of the burden of proof of the contributory negligence of the plaintiff.