Abstract

CARVAJAL, Patricio-Ignacio. Onus probandi: la formación del artículo 1.698 del Código Civil de Chile. Fundamina (Pretoria) [online]. 2014, vol.20, n.1, pp.125-133. ISSN 2411-7870.

In article 1.698, the Chilean (Bello's) Civil Code provides that: "The existence of the obligations, and their extinction, shall be proved by (the person) who alleges each one of them". This is a reception of the ius commune through both French and Spanish traditions. Although this provision is substantially related to Paul's fragment (D. 22.3.2) about the burden of proof, the main source of its precise wording may be found in C. 19.4.1 about mutuum, which deals with the specific field of contract that is regulated by article 1.698 and its later sources, article 1.315 of the Code Napoléon and article 1.196 of the "Concordances" project of Garcia Goyena. Mutuum, as the foundation of article 1.698, is indeed indispensable to fix the boundaries of this provision and its proper interpretation. It has to be borne in mind that historical research is essential for a proper understanding of the proof of obligations and in terms of the final article of the Civil Code of Bello is compulsory when interpreting Chilean legislation. In this article, all the historical sources on the burden of proof of obligations are reviewed.

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