Reversal of the burden of proof is an institute of law that determines that proof of an alleged situation must be provided by the person being sued.
It is an exception hypothesis since the general rule of Civil Procedure establishes that the evidence must be produced by whoever alleges the fact that constitutes their right.
Know the meaning of Burden of proof.
The reversal of the burden of proof is set out in art. 6, item VIII of Law No. 8078/90, Consumer Defense Code:
Art. 6°. These are basic consumer rights:
VIII - facilitating the defense of their rights, including the reversal of the burden of proof, in his favor, in civil proceedings, when, at the judge's discretion, the allegation is credible or when he is insufficient, according to the ordinary rules of experience.
Inversion is widely used in this field of law in order to protect the consumer, since he is considered the most fragile part of the consumer relationship, which is called hyposufficient.
See the meaning of Low sufficiency.
Hypo-sufficiency is a requirement that allows the judge to determine that the burden of proof be reversed. The second requirement is the
likelihood, that is, the analysis of what is favorable and what is unfavorable to those who ask for the recognition of a right.Despite being more used in Consumer Law, the possibility of reversing the burden of proof can also be applied in Labor Law.
The application in the labor process happens for the same reasons that allow its use in Consumer Law, that is, due to the weakness of the party claiming the right.
It is also an exception hypothesis, but in certain situations it is possible that the worker who requests a right cannot prove it. In this case, the judge can determine that it is the employer's duty to prove that the worker's right is not applicable.
Despite being more applied in Consumer Law and Labor Law, it is possible that the reversal of the burden of proof is applied in other areas of Civil Law.
In art. 373, §1 the Code of Civil Procedure allows the judge to determine the inversion, if deemed necessary:
§ 1 - In cases provided for by law or in the face of peculiarities of the cause related to the impossibility or the excessive difficulty in fulfilling the charge under the terms of the caput or the greater ease of obtaining proof of the fact contrary, may the judge assign the burden of proof differently, provided that it does so by reasoned decision, in which case it must give the party the opportunity to discharge the burden assigned to it.
See also the meaning of Royal burden and Sucumbency.