Appunti e spunti su onere della prova e "comune sentire"

In civil litigation, there is a strong bond between the way the burden of proof is allocated between the plaintiff and the defendant, and the common policy of a given social and cultural context. This bond dates back to the ancient Roman age, where the burden of proof itself was born from the ashes of the iusiurandum. Then, through the centuries, and from the Italian perspective, the allocation of the bur- den of proof has always been correlated to political and economic reasons. In the present days, most of the times the allocation of the burden of proof complies with the access to evidence rule, which in turns links to two procedural policies. An epistemic one, by which the burden of proof must be assigned to which one of the parties has the easiest access to the evidence regarding a certain issue of fact because this ensures highest chances of discovering the truth. Moreover, a cost-effectiveness one, by which the burden of proof must be assigned to whom has the easiest access to the evidence because this is the most efficient way to cut trial costs.