Common Pieces Of Evidence

The "idea of combat" has been the long dominating view in Austrian civil proceedings. The lawsuit, it was said, was "a war between enemy parties grimly hating each other and each aiming at the destruction of each other, both endeavouring to wrestle the enemy - and having the right to do so"; in a lawsuit one could "calmly watch the opponent bleeding to death without being obliged to provide judicial or ethical support; in other words, a war without the Red Cross." As the majority of the judicial practitioners may confirm, this viewpoint is still rooted in the heads of many representatives working directly "in the front line" in the courtroom. Yet one can find provisions referring to joint evidence in the part regarding taking of evidence of the Austrian Code of Civil Procedure. In the learned ore a general principle of right to provide evidence is derived therefrom according to which a party in a lawsuit is obliged to assist and support also the opposing party to a certain extent. Two situations can be imagined: First, the opponent may have offered evidence in the lawsuit and thereafter withdrawn such offer to provide evidence. It is to be questioned whether such withdrawal, which is often referred to as waiver to provide evidence, is possible at all and - in case of affirmation - until which point in time and whether and in what way such evidence could be taken also against the will of the party. Secondly, cases are to be considered in which the party with which the onus of proof lies intends to offer evidence, but is not capable to enable the taking of evidence, because the cooperation of the opponent is required in order to furnish such evidence. The reasons for this can be quite different: The classical case is evidence to be produced by means of a document the opponent holds, which is why the party cannot furnish such evidence. It can also be imagined that only the adverse party or a third person knows the place of abode or the identity of a witness relevant for the party with which the onus of proof lies. In such case it is decisive whether and under which conditions the opposing party or a third person may be ordered to produce such document or to name the witness and/or such witness`s abode. One of the facts by which such duty to cooperate is imposed on the parties by procedural law are joint documents - which are labelled "gemeinschaftliche Urkunden" (joint documents) in the Code of Civil Procedure itself. This work deals with the interpretation and analysis of this fact.