Third party priority and burden of proof. Chronicle of a controversial jurisprudential change

Abstract

This paper aims to demonstrate that, although the rule in Article 1698 of the Civil Code is recognized as having a broad scope, when faced with specific cases, the issue of the distribution of the burden of proof is complex to resolve, and the application of the same theoretical principles often leads to different solutions regarding who is responsible for proving a given fact. The analysis considers the provision of Article 2478 of the Civil Code, whose practical application highlights the aforementioned problem. Several criteria are proposed to clarify the issue, demonstrating that the principle of dispensing with the concept of burden of proof is also ineffective in resolving the dilemma.