The civil and commercial evidence

You are merchants and face a delinquent debtor. Unfortunately, you do not have a written contract with the debtor to justify your claim. What are the means available to you to prove this claim and recover your money?

Who must prove what?

In Belgium, the burden of evidence will determine the part that will have to suffer the shadow areas of the claim. According to article 1315 of the Civil Code, thecreditormust prove the existence of the claim while thedebtormust prove its extinction.

However, the law may intervene and reverse the burden of evidence.

There are two regimes of evidence:

• The legal evidence: the law regulates the methods of proof;
• The free evidence: all types of evidence are admitted.

In Belgium,the legal evidenceregime applies. However, there are various exceptionsthat allow the use of the free evidence regime:

• Legal acts under 3500€. A recent reform will increase this amount to €3,500. This means that a sale for less than 3.500 € can be proven by an email, a text message, a testimony and not anymore only by a written. This reform has not yet entered into force, but it will not be long.
• In commercial matters, the evidence is free.
• In subjects where it is impossible to conclude a writing (for family reasons for example).
• In the context of commencements of written evidence. In some cases, the law provides certain formalities for a writing to constitute an evidence. If this formality is not observed, the writing will not have value of proof but will constitute a commencement of written evidence. Ex: an acknowledgement of debt that does not bear the mention “good for”.

In theory, the parties are free to organize the questions of evidence. However, this type of provision can only exist in relations between professionals.

In civil matters

In the context of therelationship between individuals and individualsor merchants and individuals, the system of evidence is therefore regulated, and the law provides for various types of evidence:

1. Written proof: there are two kinds:

• The authentic instrument: instrument drawn up by a person empowered by law (notary, bailiff, etc.)
• The private sub-seing act: the act written by individuals (contracts, …). The electronic contract is also increasingly accepted.

2. The testimony
3. Presumptions: Reasons by which the judge may, from known facts, infer unknown facts.
4. Confession: The act of acknowledging a fact. A confession is admissible in any matter even if the law requires a written confession. Be careful, a confession is irrevocable.
5. The oath(less and less used)

In commercial matters

Between two merchants, the evidence is free. All forms of evidence are permitted to prove alegal act. However, the written form will be required in certain contracts (insurance contracts, etc.). Some contractual provisions may therefore require only one mode of proof to be admitted.

However, there are two modes of evidence specific to commercial relations:

1. The invoice

Theinvoiceis the document that contains the price to be paid to the creditor in the context of a purchase of an asset. The invoice as such is therefore a unilateral document, it proves nothing, and it will therefore be necessary to provide a contract, purchase orders or other to prove our claim.

However, the invoice becomes proof when it has been accepted, i.e. the contracting party acknowledges the existence of the transaction and its terms. This acceptance can be express(letter, signature, verbally…) or tacit(resulting from the absence of any dispute by the other party in due time).

The law does not impose any specific form for dispute (email, letter, verbal, etc.). However, it must be done in due time, i.e. within days or weeks of the invoice date. A dispute occurring several months later will not be considered valid. What if the contracting party disputes by stipulating that it never received the invoice? The creditor will then have to prove receipt of the invoice in question.

Does the tacit acceptance of the invoice also apply to the general conditions of sale? The precedents are not entirely unanimous on this issue. A majority tendency would be in favor of the thesis according to which the absence of dispute of the invoice would involve the acceptance of the general conditions of sale.

The minority tendency assumes that the creditor must also prove the acceptance of the general conditions in full in addition to the acceptance of the invoice.

However, the precedents are consolidated on the fact that the general conditions will not be considered as accepted in the case where various steps are necessary to take knowledge of them, in the case where they are drafted in another language or when they possess unusual or abnormally severe provisions.

The accounting

The parties’ accounts can be used to prove the existence of an invoice. Be careful, a seriously disputed invoice which would have been entered in the creditor’s accounts can be turned against him. In the same logic, an invoice included in the accounts of the debtor(who would obviously be a merchant in this situation) while he subsequently contests it could be in favor of the creditor.

In cases where the accounts of the two parties diverge, neither party takes precedence over the other and the parties will have to find other evidence to support their contentions.

If you have any questions about what TCM can do for you, feel free to contact us at sales@tcm.be. We’re here to help.