Facts
The case concerns a dispute between H. and K. Immobilien AG. In this judgment, the Federal Supreme Court supplements its previous case law on Art. 8 CC (burden of proof) and clarifies that Art. 8 CC also guarantees the right to rebuttal evidence. This means that the opponent of the party bearing the burden of proof has a claim to be admitted to prove specific circumstances that should raise doubts in the judge's mind about the correctness of the factual allegation forming the subject of the main evidence and thereby defeat it.
Considerations
However, this right to present rebuttal evidence does not exclude a preliminary assessment of the evidence. The judge may deny the relevance or suitability of a requested means of proof. Furthermore, Art. 8 CC becomes irrelevant with regard to the rebuttal evidence if the factual element underlying the main evidence is already conclusively proven.
It is required that the judge, based on an assessment of the evidence taken, is firmly convinced that the main evidence has already been conclusively provided. Where, on the other hand, he relies solely on general life experience,…