Editing Presumption

{{short description|In law, an inference of a particular fact}}
{{for|the term in Catholic canon law|Presumption (Catholic canon law)}}
{{Use dmy dates|date=August 2021}}

In [[law]], a '''presumption''' is an "[[inference]] of a particular [[fact]]".<ref name="Black's Law">{{cite encyclopedia |title=Presumption|encyclopedia=[[Black's Law Dictionary]]|year= 1990 |last=Black |first=Henry Campbell|author-link=Henry Campbell Black|url=https://blacks_law.en-academic.com/38069}}</ref> There are two types of presumptions: rebuttable presumptions and irrebuttable (or conclusive) presumptions.<ref>{{cite journal|url=https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2290&context=clr|first=Otis H.|last=Fisk|journal=The Cornell Law Quarterly|volume=11|pages=20–40|date=1925|title=Presumptions}}</ref>{{rp|25}} A rebuttable presumption will either shift the [[burden of production]] (requiring the disadvantaged party to produce some [[Evidence (law)|evidence]] to the contrary) or the [[burden of proof (law)|burden of proof]] (requiring the disadvantaged party to show the presumption is wrong);<ref name="Black's Law"/> in short, a [[Trier of fact|fact finder]] can reject a rebuttable presumption based on other evidence.<ref name="Rogus">{{cite journal|url=https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1040&context=mjgl|first=Caroline|last=Rogus|title=Fighting the Establishment: The Need for Procedural Reform of Our Paternity Laws|volume=21|date=2014|pages=67–122|journal=Michigan Journal of Gender & Law|issue=1 |doi=10.36641/mjgl.21.1.fighting |s2cid=152740413 |doi-access=free|url-access=subscription}}</ref>{{rp|87}} Conversely, a conclusive/irrebuttable presumption cannot be challenged by contradictory facts or evidence.<ref name="Rogus"/>{{rp|87–88}} Sometimes, a presumption must be triggered by a predicate fact—that is, the fact must be found before the presumption applies.<ref name="Hall">{{cite journal|first=Keith B.|last=Hall|journal=Tulane Law Review|url=https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1144&context=faculty_scholarship|title=Evidentiary Presumptions|pages=1321–28|volume=72|date=1998}}</ref>{{rp|1321–22}}

==History==

The ancient Jewish law code, the [[Talmud]], included reasoning from presumptions (''hazakah''), propositions taken to be true unless there was reason to believe otherwise, such as "One does not ordinarily pay a debt before term."<ref name="Franklin Science">{{cite book|first=J.|last=Franklin|title=The Science of Conjecture: Evidence and Probability Before Pascal|location=Baltimore|publisher=Johns Hopkins University Press|date=2001}}</ref>{{rp|6}}

The same concept was found in ancient [[Roman law]], where, for example, if there was doubt as to whether a child was really the issue of someone who had been left money in a will, the presumption was in favour of the child.<ref name="Franklin Science"/>{{rp|9}} Medieval Roman and [[canon law (Catholic Church)|canon law]] graded presumptions according to strength: light, medium or probable, and violent.<ref name="Franklin Science"/>{{rp|20–23}} These gradings and many individual presumptions were taken over into [[English law]] in the seventeenth century by [[Edward Coke]].<ref name="Franklin Science"/>{{rp|60–61}}

==Specific presumptions==
{{primary sources|section|date=May 2023}}
A number of presumptions are found in most [[common law]] jurisdictions. Examples of these presumptions include:
*The [[presumption of death]]. A person who has been absent for seven years without explanation and "gone to parts unknown" is presumed dead at common law.<ref>''Prudential Insurance Comp. v. Moore'', 197 Ind. 50, 149 N.E. 718 (Ind. 1925)</ref> The time period it takes for the presumption to arise has often been modified by statute.<ref>E.g. Ind. Code § 29-2-5-1.</ref>
*The [[presumption of sanity]]. A person who faces criminal trial is presumed sane until the opposite is proved. Similarly, a person is presumed to have testamentary capacity until there is evidence to undermine that presumption.
*The [[presumption of innocence]], which holds that the prosecution bears the burden of proof in a criminal case with the result that the accused may be acquitted without putting forward any evidence.
*The [[presumption of legitimacy]] or [[presumption of paternity]], which presumes that a husband is the [[biological|legal father]] of a child born to his wife during the marriage, or within nine months after the marriage is ended by death, [[legal separation]], or [[divorce]].<ref>E.g. Ind. Code § 31-14-7-1.</ref> Some jurisdictions also hold that a presumption of paternity arises when a father accepts a child into his home, or publicly represents that he is the child's father.<ref>E.g. Ind. Code § 31-14-7-2.</ref>
*A [[presumption of survivorship]] has referred to a number of different presumptions. The term is sometimes used to refer to presumptions that one or another of two persons lived the longer when [[simultaneous death|they died together in the same accident]].<ref>[[Black's Law Dictionary]] (5th. ed., 1979; West Publishing Co., {{ISBN|0-8299-2041-2}}), p. 1068, "Presumption of survivorship"</ref> The presumption that two or more people who establish a [[joint account]] intend for the survivors to have the assets put into the fund upon the death of one of the joint account holders has also been called the "presumption of survivorship".<ref>E.g. ''Matter of Estate of Banko'', 622 N.E.2d 476 (Ind. 1993)</ref>
*The [[presumption of mailing]] presumes that a properly addressed letter delivered to the post office or a [[common carrier]] was in fact delivered and received by the addressee.<ref>E.g. ''U-Haul Co. of Indiana, Inc. v. Indiana Dept. of State Revenue'', 896 N.E.2d 1253 (Ind.Tax 2008)</ref>
*The presumption of [[fraud]] or [[undue influence]] arises where a person in a position of [[Trust (social sciences)|trust]] over another, such as a [[guardianship|guardian]] or the holder of a [[power of attorney]] applies the other person's assets to their own benefit.<ref>''In re Estate of Compton'', 919 N.E.2d 1181, (Ind.Ct.App. 2010), trans. denied</ref>
*The [[presumption of validity]] is another way of expressing a burden of proof: the official acts of courts are presumed valid, and those who would challenge them must overcome this presumption.<ref>''Monon Corp. v. Townsend, Yosha, Cline & Price'', 678 N.E.2d 807, 809 (Ind.Ct.App. 1997).</ref> This is also termed the [[presumption of regularity]].<ref>Cooper, Simon & Murphy, Peter & Beaumont, John. Cases & Materials on Evidence. Fourth Edition. Oxford University Press. 1994. p. 86</ref>
*The [[presumption of advancement]] in relation to transfers from husbands to wives and from fathers to children.
*In commercial contracts, there is a presumption that parties to a contract intend all disputes between them to be determined within the same forum.<ref>Peacock, N, [https://hsfnotes.com/arbitration/2015/03/19/fiona-trust-v-privalov-in-the-high-court/ Fiona Trust v Privalov in the High Court], ''Herbert Smith Freehills'', published 19 March 2015, accessed 18 January 2024</ref> This presumption is also known as "one-stop adjudication" and reflects the belief that contracts are entered into by [[rational]] business parties.<ref>Hart, S., [https://www.rpc.co.uk/perspectives/commercial-disputes/one-stop-adjudication-the-rational-approach-to-dispute-resolution/ One-stop adjudication – the rational approach to dispute resolution], ''Reynolds Porter Chamberlain LLP'', published 10 June 2015, accessed 18 January 2024</ref> A German ''Bundesgerichtshof'' ([[Federal Court of Justice]]) decision made on 27 February 1970 thought there was "every reason to presume that reasonable parties will wish to have the relationships created by their contract and the claims arising therefrom ... decided by the same tribunal and not by two different tribunals", and the [[Federal Court of Australia]] in ''Comandate Marine Corp v Pan Australia Shipping Pty Ltd.'' (2006) referred to a "sensible commercial presumption that the parties did not intend the inconvenience of having possible disputes from their transaction being heard in two places". The [[Judicial functions of the House of Lords|House of Lords]] in ''Premium Nafta Products Ltd (20th Defendant) and Ors v. Fili Shipping Company Ltd and Ors'' (2007) noted that "this approach to the issue of construction is now firmly embedded as part of the [[international trade law|law of international commerce]]" and endorsed a ruling the [[Court of Appeal (England and Wales)|Court of Appeal]] made on this basis, stating that this presumption "must now be accepted as part of our <nowiki>[</nowiki>[[England and Wales]]<nowiki>]</nowiki> law too".<ref>House of Lords, [https://www.bailii.org/uk/cases/UKHL/2007/40.html Premium Nafta Products Limited (20th Defendant) and others (Respondents) v. Fili Shipping Company Limited (14th Claimant) and others (Appellants)], UKHL 40, delivered 17 October 2007, accessed 18 January 2024</ref>
*In the [[law of the United States]], the [[presumption of constitutionality]] presumes that all statutes are drafted in accordance with [[Constitution of the United States|Federal]] and [[State constitution (United States)|state]] constitutional requirements. The party challenging the constitutionality of a statute bears the burden of proof, and any doubts are resolved against that party. If there are two reasonable interpretations of a statute, one of which is constitutional and the other not, the courts choose the path that permits upholding the statute.<ref>''Boehm v. Town of St. John'', 675 N.E.2d 318 (Ind.1996)</ref>

==Conclusive (irrebuttable) presumption==
{{primary sources|section|date=May 2023}}
A conclusive presumption, also known as an irrebuttable presumption, is a type of [[presumption]] used in several legal systems. In [[English law]], a conclusive presumption is a presumption of law that cannot be [[rebuttal|rebutted]] by [[evidence (law)|evidence]] and must be taken to be the case whatever the evidence to the contrary. For example, a child below the [[age of criminal responsibility]] is presumed to be incapable of committing a felony.

===Australia===
In Australian law, it is a conclusive presumption that no child under the age of 10 can be held responsible for criminal action.<ref>Children (Criminal Proceedings) Act 1987 s5 http://www.austlii.edu.au/au/legis/nsw/consol_act/cpa1987261/s5.html</ref> This presumption exists to protect children by acknowledging that they do not have sufficient development to understand the gravity and consequences of committing a criminal act.<ref>Thomas Crofts, Doli Incapax: Why Children Deserve its Protection http://www.austlii.edu.au/au/journals/MurUEJL/2003/26.html</ref>

===Canada===
Recent amendments to Impaired Driving law allows the Crown to rely on a conclusive presumption. Normally, where the police conduct a breathalyzer test within 2 hours of the operation of a conveyance (or care and control), the court can accept the blood alcohol concentration as being the same at the time of the operation of the vehicle as at the time of the offence. If the test is conducted outside the two hours, and the blood alcohol concentration is greater than 20 mg of alcohol/100 mL of blood, there is now a conclusive presumption that the blood alcohol concentration can be increased by 5 mg of alcohol/100 mL of blood for each 30 minutes.<ref>Criminal Code 320.31(4)</ref>

===England and Wales===
A child below the [[age of criminal responsibility]] cannot be held legally responsible for their actions, and so cannot be convicted of committing a [[criminal offence]]. The age has continually been under debate with adjustments being made in line with rulings, the results of psychological research and to some extent public pressure. The age was seven at [[common law]], and raised by the [[Children and Young Persons Act 1933]] to eight (section 50) and by the Children and Young Persons Act 1963 to ten, at which it remains. In the case of [[rape]], if it is found that the defendant intentionally deceived the complainant as to the "nature or the purpose of the act", or if "the defendant intentionally induced the complainant to consent by impersonation of a "person known personally to the complainant"" it can be conclusively presumed the defendant is guilty of rape and must be convicted.<ref>{{Cite web|title=Rape and Sexual Offences - Chapter 6: Consent {{!}} The Crown Prosecution Service|url=https://www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-6-consent#:~:text=Conclusive%20presumptions%20(section%2076%20SOA%202003),-Section%2076%20provides&text=The%20defendant%20intentionally%20deceived%20the,known%20personally%20to%20the%20complainant.|access-date=2021-07-06|website=cps.gov.uk}}</ref>

== See also ==
{{wikiquote|Presumptions}}
* [[Legal burden of proof]]
* [[Prima facie]]

==Notes and references==
{{Reflist|2}}

==Further reading==
*John Hubbersty Mathews and Benjamin Rand. A Treatise on the Doctrine of Presumption and Presumptive Evidence: As Affecting the Title to Real and Personal Property. Gould, Banks and Company. New York. 1830. [https://books.google.com/books?id=qPlCAQAAMAAJ&pg=PR1 Google Books]
*William Mawdesley Best. A Treatise on Presumptions of Law and Fact, with the Theory and Rules of Presumptive or Circumstantial Proof in Criminal Cases. London. 1844. [https://books.google.com/books?id=QvNiAAAAcAAJ&pg=PR1 Google Books]. Philadelphia. 1845. [https://books.google.com/books?id=S2g0AAAAIAAJ&pg=PR1 Google Books]
*John Davison Lawson. The Law of Presumptive Evidence: Including Presumptions both of Law and of Fact, and the Burden of Proof both in Civil and Criminal Cases, Reduced to Rules. Bancroft-Whitney Company. 1886. [https://books.google.com/books?id=lhk-AAAAIAAJ Google Books]
* Phillips, John M., [https://www.jstor.org/pss/1228272 "Irrebuttable Presumptions: An Illusory Analysis"], (1975) 27 [[Stanford Law Review]] 449

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[[Category:Evidence law]]
[[Category:Legal doctrines and principles]]