24. Obligations that are not enforceable:
A non-judicial Enforceable instrument which contains an obligation which is not pecuniary or The obligation is less than 300 euros, you can’t have an enforceable situation. You will need a judgement (which will be te enforceable instrument).
25. Burden of proof:
Kind of Obligation, burden that lies on the parties on who has to convince the Judge of The truth of a fact. It refers to the motivation of the parties to conduct Themselves along the proceeding to convince the Judge of the truth of their Fact.
Two dimensions To be analyzed:
Subjective/formal: Burden of production, conducting themselves diligently.
Objective: Burden of persuasion, in terms of potentially legal consequences.
The need of Doing something in order to get something or to avoid negative consequences.
It is on the Parties to allege and prove the facts and the Court is going to decide whether They are uncertain or not. The ways the parties can convince the Judge for a Fact being true are evidence.
Conclusions of The Judge: if it’s true applies substantive law to the fact and extracts legal Consequences; if it is false no legal consequences will be attached to the substantive Law; it can also be true or false but can’t be demonstrated, the Judge must Decide with the rules of burden of proof.
The burden of proof Might be inverted by the defendant through precluding, extinguishing or Impeditive facts.
Art. 217.2: the Plaintiff has the burden of proving the constitutive facts supporting the Claim.
Art. 217.3: the Defendant has the burden of proving the impeditive, extinguishing and Precluding facts.