Legal presumption of fault in the Serbian Law of obligations

Abstract

Subjective tort liability, or subjective non-contractual liability, presupposes damage, causation, and fault. All three conditions are to be proven by the injured party, because fault for damage is not presumed - the system of proven fault. Certain legal systems include a rebuttable presumption of fault, which transfers the burden of proof to the tortfeasor - the system of presumed fault. While the system of proven fault certainly prevails, the system of presumed fault is accepted in fewer legislations. The paper gives a historical overview of the application of the system of proven fault as well as an exposition of the solutions in Yugoslav law before and after the adoption of the 1978 Law on Contracts and Torts, followed by a critical analysis of the systems of proven and presumed fault. After summing up their distinct features, in the conclusion the author emphasizes the advantages of the system where fault is presumed.

Keywords

• damage
• non-contractual liability
• proven fault
• presumed fault
• burden of proof