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Evidence in the Conflict of Laws: A Comparative Study of American and Dutch Law
Published online by Cambridge University Press: 21 May 2009
Extract
The purpose of this chapter is to examine in what way evidence conflicts are actually solved in the United States and in the Netherlands and to see whether application of the harmony-concern-reliance test leads to more satisfactory results. Each of the following sections commences with a discussion of Dutch law, then turns to American law, and concludes by suggesting in a “resolution” what seems the best solution. In Chapter V these resolutions will be comprised to a set of rules.
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References
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124. 1957 Schip en Schade, nr. 56; as in the Netherlands cases are not cited by the names of the parties, but by the date of the decision, the names of the parties in Dutch cases are omitted in this paper.
125. See also: Ct. App. Amsterdam, November 12, 1952, N.J. 1954, nr. 370 and Ct. App. Amsterdam April 15, 1955, N.J. 1955, nr. 492.
126. Ct. App. Amsterdam, October 24, 1946, N.J. 1947, nr. 229.
127. Dist. Ct. Rotterdam, June 8, 1955, N.J. 1956, nr. 351.
128. Cantonal Ct. The Hague, April 29, 1963, N.J. 1963, nr. 238.
129. N.J. 1957, nr. 571.
130. Dist. Ct. Rotterdam, June 24, 1949, N.J. 1950, nr. 538.
131. 233 Mass. 600, 124 N.E. 477 (Sup. Jud. Ct. 1919).
132. 252 N.Y. 127, 169 N.E. 112, 68 A.L.R. 801 (Ct. App. 1929).
133. Gerhard v. Terminal R.R. Ass'n of St. Louis, 229 S.W. 2d 866 (Mo. 1957) and O'Leary v. Illinois Terminal R.R., 299 S.W.2d 873 (Mo. 1957); see 23 Mo. L.Rev. 361 (1958).
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141. A rule, for example, which places the burden of proof on the holder of a bill of lading.
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162. II, 286.
163. At 859–865.
164. Sedler mentions as examples, the presumptions that an injury to an employee is caused by the employer, that violation of a speeding regulation constitutes negligence, the presumption against suicide, the presumption of payment and the res ipsa loquitur rule.
165. §§ 599C and 599d.
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168. See p. 375, supra.
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170. See for other cases 15 C.J.S. 955.
171. 89 F. 2d 528 (5th Cir. 1937).
172. At 530.
173. 236 F. 2d 457 (5th Cir. 1956).
174. At 462: In Alabama the presumption is evidential and does not spend its force “until the evidence is sufficient in the judgment of the jury to overcome it.” In South Carolina the presumption does not have the force and effect of evidence but is an administrative rule of law operating to require the production of credible evidence of self-destruction, after which the presumption disappears.
175. At 462.
176. Continued “Substance-Procedure” Confusion, 8 Syr. L. Rev. 281–286 (1957)Google Scholar argues against use of the substance-procedure dichotomy in life insurance cases and pleads for application ofthat law, with which there are contacts, which gives the greatest chance of recovery to the beneficiary. For other cases, see 15 C.J.S. 955.
177. For argumentation, see p. 376–377, supra.
178. See p. 377, supra.
179. For example, where the presumption is of the Rodney v. Staman type, see p. 379, supra.
180. See p. 379, supra.
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185. A difference could be, that if written procf of the transaction had been lost, oral testimony as to its existence would be allowed in the first case, but not in the second case. This is the argument Asser-Anema-Verdam makes at 250. Though I can cite no supporting authority, it seems that also in case of a rule phrased as an exclusion, a court would allow oral testimony to prove that a document had existed but was lost without fault.
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192. The Statute is dealt with in treatises on contracts and not in several treatises on evidence (Mc Cormick, Morgan, Basic Problems); Sedler says at 854: “It is well established that the requirement of the statute of frauds is not a rule of evidence.”; but see 1 Wigmore, , 163Google Scholar, where it is stated that some sections contain rules of evidence, others rules of substantive law and in the Restatement Second, the Statute is dealt with in a section on evidence.
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194. 9 Wigmore, , Evidence, 3 (1940)Google Scholar, on the parol evidence rule.
195. 12 C.B. 801, 138 Eng. Rep. 1119 (1852).
196. See Comment, 14 U. Det. L. J. 198, 199 (1951)Google Scholar and Comment, 43 Calif. L. Rev. 295, 299 (1955).Google Scholar
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201. At 472; see also Comment, Calif. L. Rev., supra, 297–308.Google Scholar
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203. II, 504.
204. At 855.
205. At 155.
206. 1 Wigmore, , 163.Google Scholar
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209. At 495.
210. At 495, note 18.
211. 128 F.2d 653, (3d Cir. 1942), 141 A.L.R. 1041, 1046–1048.
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213. Baxter v. Nat'l Bank, 154 Mass. 213, 28 N.E. 163 (Sup. Jud. Ct. 1891).Google Scholar
214. Kirtley v. Abrams, 299 F.2d 341 (2d Cir. 1962)Google Scholar. The Court applied the parol evidence rule of the state it was sitting in and the case is thus authority for the rule that the parol evidence rule is substantive for Erie purposes. Since the lex causae coincided with the law of the state in which the court was sitting, the case does not provide a decisive conflict, nor subsequently strong authority either way.
215. II, 505. Also 1 Wigmore, , 162Google Scholar and the Restatement, § 599, consider the lex causae determinative.
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217. Art. 319 B.W., for example, prescribes that proof of descent is only possible by documents.
218. Art. 1947 B.W. par. 1; par. 2. states that the first paragraph does not apply in lawsuits on personal status of the parties, adoption, maintenance, parental authority and labor contracts; par. 3. states that the persons mentioned in par. 1. are not incompetent to testify on events which occurred during a voyage on the seas, but then have a privilege not to testify. Art. 31 Wegenverkeerswet (Road Traffic Act) par. 8, contains another exception.
219. N.J. 1926, 672.
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221. The statutes are remnants of the old Common Law rule which disqualified the parties completely. Cormick, Mc, 142–144Google Scholar; Morgan, , Basic Problems, 92–94.Google Scholar
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225. 234 P.2d 673 (Dist. Ct. App. Cal. 1951).
226. For other cases see 97 C.J.S. 439.
227. At 871.
228. The argument could be made in case of an attested deed.
229. A.o. physicians, clergymen and attorneys; see Asser-Anema-Verdam, , 271–272.Google Scholar
How different the state of the law as to privileges for confidential communications is in some countries, is shown by Hammelman, Professional Privilege, A Comparison, 28 Can. B. Rev. 750–758 (1950)Google Scholar. In England and Canada there is no firmly established privilege of the clergyman and the physician. In Germany the privilege of the physician is waived if the patient does not object to the testimony, while in France such action does not waive the privilege. To this survey can be added that in The Netherlands none of the privileges is waived by consent of the confiding person. The privileges are deemed to exist not only for the benefit of the confiding person, but also in the interest of the public in general. See Asser-Anema-Verdam, , 272Google Scholar; Pitlo, , 91.Google Scholar
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231. N.J. 1939, nr. 122.
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234. 138 F. 705 (3d Cir. 1905).
235. 10 N.J. Super. 287, 77 A.2d 291 (1950).
236. 111 F. Supp. 435 (Dist.Ct. D.C. 1953), aff'd 225 F.2d 532 (D.C. Cir. 1955), see commentary in 2 Am. J. Comp. L. 536 (1953).
237. 1 Misc. 2d 697, 148 N.Y.S.2d 731 (Sup. Ct. 1956).
238. 56 N.Y.S.2d 32 (Sup. Ct. 1956).
239. See for other cases 97 C.J.S. 741.
240. Recognition in the United States of the privileges of another jurisdiction, 56 Col. L. Rev. 535, 548–549 (1956).Google Scholar
241. At 356.
242. At 870–871.
243. See comment e. on § 599b.
244. See p. 386, supra.
245. In this and the preceding section I have based the difference between competency rules and privileges on the distinction that the first are designed to further discovery of the truth, whereas the latter obstruct discovery of the truth in favor of a countervailing policy. This is a view Mc Cormick for example holds (at 152), but which is not universally accepted. See Barnhart, Theory of Testimonial Capacity and Privilege, 4 Ark. L. Rev., 377, 377 (1950), who says that besides privileges, competency rules also are not primarily set up to further discovery of the truth. Almost all the incompetencies he enumerates, however, seem to be established with that end in view.
246. In this sense the word “instrument” is further used in this paper.
247. Pre-eminently the official is the notary, who is a lawyer and has a more important position than the Anglo-Saxon notary public.
248. See arts. 176–195 Code of Civil Procedure. Several intricate formalities tend to prevent ample use of the action. Oaths (see p. 396 infra) and “presumptions of fact” (see p. 377, supra) are not admissible in the proceeding. The court usually appoints three graphological experts and follows their opinion.
249. See note 3, part I, supra.
250. Arts. 1907 and 1912 B.W.; see for who are meant by “privies”, Asser-Anema-Verdam, , 154–155.Google Scholar
251. See note 3, part I, p. 294, supra.
252. Kosters-Dubbink, , 503.Google Scholar
253. Legalisation has been, but is not any more, a general condition for admissibility of these documents.
254. N.J. 1955, nr. 52.
255. This happened in the unreported case Offerhaus cites at 59, where an instrument executed by a German notary was involved.
256. See Kosters-Dubbink, , 480–481.Google Scholar
257. Mulder, , 231–232.Google Scholar
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259. Kosters-Dubbink, , 494Google Scholar; Mulder, , 231Google Scholar; Offerhaus, , 34Google Scholar, but see Dist. Ct. Rotterdam June 24, 1914, N.J. 1915, 362, W. 9727.
260. See note 248, p. 389, supra.
261. The inquiry is also necessary where a provision like art. 992 B.W. specifically denies validity to an instrument which does not have the form of a Dutch authentic instrument.
262. See Mulder, , 230.Google Scholar
263. At 496–498.
264. Kosters-Dubbink, , 519–520Google Scholar; Mulder, , 233–234.Google Scholar
265. At 227–229.
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268. See Cormick, Mc, 398–400.Google Scholar
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271. 7 Wigmore, , 581Google Scholar; Cormick, Mc, 401–403.Google Scholar
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273. 32 C.J.S. 649.
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277. Cormick, Mc., 409Google Scholar; 32 C.J.S., 706. The same rule, though less elaborated, is in force in the Netherlands. See Asser-Anema-Verdam, , 214–219Google Scholar; Pitlo, , 78.Google Scholar
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279. This is not intended to be a complete survey of the American common law rules of documentary evidence and certainly does not cover the statutes that modify them, but it attempts to cover the most important and to indicate that the American rules are much more elaborate than the Dutch rules of documentary evidence.
280. Rule 44, F.R.C.P., for example.
281. But see Oligan v. Lublin, 50 N.E. 2d 264 (Ct. App. Ohio, 1943)Google Scholar where Yugoslavian copies of a family tree and a marriage certificate were not admitted in evidence though they were legalized by the U.S. consul in Yugoslavia. The court's ground for exclusion was that because the consul was not the keeper of the records his statement was without relevance.
282. 32 C.J.S. 547.
283. 32 C.J.S. 548.
284. 118 Wis. 18, 94 N.W. 664 (Sup. Ct. 1903). For other cases see 17 C.J.S. 626 and 10 C.J.S. 491.
285. 194 Misc. 261, 86 N.Y.S. 2d 720 (Sup. Ct. 1949). In order to prevent undesirable decisions like this one, statutes have been enacted in 1949 both in New York and in the Netherlands. See Kollewijn, , American-Dutch Private International law, 62–63 (2d ed., 1961).Google Scholar
286. The court noted that the Red Cross was not under a public duty to keep death records; cf. note 275, p. 392, supra and accompanying text.
287. 252 Mich. 674, 234 N.W. 135 (Sup. Ct. 1931).
288. 133 N.J.Eq. 77 (Ct. of Ch. 1943).
289. 125 N.J.L. 7 (Sup. Ct. 1940).
290. The first case concerned a New York death and birth record, the second a New York motor vehicle record.
291. See part. I, p. 302, supra.
292. Cf. Opton v. Guaranty Trust Co. of N.Y., cited p. 392–393Google Scholar, supra.
293. A literal translation of the Dutch term is “confession”.
294. Arts. 1962–1965 B.W.
295. Asser-Anema-Verdam, , 400–404Google Scholar; Pitlo, , 118–120.Google Scholar
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300. At 164, 169, 172 and 174.
301. At 236.
302. In most Western-European countries the principle of art. 1961 B.W. has not the same strength as it has in the Netherlands and the rules of withdrawal and admissibility of judicial admissions are different. Even thus within Western European relations, the choice of law question is not academic. See Kosters-Dubbink, , 534–535Google Scholar; Offerhaus, , 163, 166 and 171.Google Scholar
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309. According to §§ 597 and 598 of the Restatement the lex fori applies.
310. Arts. 237–246 Code of Civil Procedure.
311. Arts. 19 and 19a Code of Civil Procedure.
312. Arts. 1967–1976 B.W.
313. This consequence is much criticized. It is said that someone may be convinced of the truth of a statement but still be aware that he might be mistaken and therefore not be willing to make his statement under oath. He should not be punished for his scrupulousness. See Asser-Anema-Verdam, , 462Google Scholar; Pitlo, , 155.Google Scholar
314. This extreme unassailibility is often criticized. See Asser-Anema-Verdam, , 459Google Scholar; but cf. Pitlo, , 153.Google Scholar
315. In this way case law has interpreted the obscure art. 1967 B.W.
316. Arts. 1977–1978 B.W.
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319. Art. 1979 B.W.
320. At 537–539.
321. At 186, 193.
322. At 236.
323. When the rule that a party may not impeach his own witness is also applied if the adverse party is called to the stand, the first party may be bound by the other's testimony in a way not unlike that in which the Dutch charging party is bound by the decisive oath of the charged party. But see 3 Wigmore, , 431Google Scholar and Cormick, Mc, 71Google Scholar, who criticize application of the rule in the adverse party situation.
324. See p. 386, supra.
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328. Offerhaus, , 212–213Google Scholar; Kosters-Dubbink, , 494.Google Scholar
329. The Uniform Rules of Evidence seem to place expert testimony more within the discretion of the court; see Cormick, Mc, 35–36.Google Scholar
330. 2 Wigmore, , 643Google Scholar; Cormick, Mc, 28.Google Scholar
331. Asser-Anema-Verdam, , 59Google Scholar. The quoted reference is, most likely to personal status cases. Cf. p. 394 and p. 396, supra. But see Dist. Ct. 's-Hertogenbosch, December 28, 1962, N.J. 1963, 294, which respected an evidence agreement in a paternity suit. The court left unclear however, whether in the absence of the agreement other rules would have applied.
332. Asser-Anema-Verdam, , 58–60Google Scholar; Pitlo, , 26–28, 37Google Scholar. Mulder notes at 230 that all rules of evidence are imperative rules, but it is generally held that few of the rules of Part IV B.W. are imperative; See Pitlo, , 26–27.Google Scholar
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338. At 486–489.
339. 6A Corbin, , Contracts, 486 (1962)Google Scholar: a choice of law by the parties is enforced to the extent that the contract before the court would be recognized as valid by the law of the forum if, without specifying the law of any jurisdiction it had provided in express terms for the exact results that would be reached by application of the law of the specified jurisdiction.
340. From Ehrenzweig's remarks on the German marriage brokerage contract case he cites at 469, note 7, it seems to follow that he thinks deviation from the lex causae's imperative rules permitted.
341. 2 Rabel, , 430.Google Scholar
342. 2 Rabel, , 426–429, 431Google Scholar; see also the conclusion of Comment, “Party-Autonomy” in Contracts, 57 Col. L. Rev. 553, 576 (1957).Google Scholar
343. Ehrenzweig, , 537–539Google Scholar, discusses some procedural agreements as the agreement to confess judgment, or not to sue, but does not mention evidence agreements.
344. Cf. Levy et al. v. Mutual Life Ins. Co., note 238, supra.Google Scholar
345. See p. 399, supra.
346. At least in so far as the hearsay rule pertains to oral testimony. See the exceptions to the hearsay rule concerning records, p. 392, supra.
See for a comparison between Civil Law and Common Law hearsay rules Hammelman, Hearsay Evidence, a Comparison, 67 L.Q. Rev. 67 (1951).
347. But see Kosters-Dubbink, , 532.Google Scholar
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350. The fact that the Dutch law of evidence is for the greater part treated in the Civil Code which made Dutch lawyers aware of the strong relation between the law of evidence and substantive law; (In the new Civil Code which is being drafted, however, evidence will not occur. It will be transferred to the Code of Civil Procedure). Another circumstance is that the laws of the Netherlands' neighbour states are far more laid down in statutes than the laws of the American States and that it is much easier to apply foreign statutory law than foreign court made law. (Cf. Morgan, , Choice of Law, 190–191Google Scholar, referred to at p. 376, supra).
351. Cf. part. I, p. 296–297, supra.
352. See primarily the public duty argument, p. 305–306. supra.
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