Cryptography Reference
In-Depth Information
either by a notary or as a private act, for any dealing over a sum or
value of 50FF [French francs], and no proof by testimony is admissible
against or beyond the content of this document, nor with regard to what
could have allegedly been said before, during, or since the writing of the
document.”
By the power of consensualism, parties are free to contract to their
hearts' content, but in order to
prove
their obligations, parties must con-
stitute, prior to litigation, a written document.
15
The specification of the
hierarchical superiority of written proof over witness testimony illustrates
a key element of the civilist approach to evidence: though
fail
evidence is
potentially admissible, the rules of its evaluation are formally specified by
the law. The judge is responsible for determining to which legal category—
authentic (notarized) act, private contract,
prima facie
evidence—a given
document belongs, based on its formal characteristics. Once this operation
of
qualification
has been performed, the judge's appraisal of the evidence
is determined by the formal rules specifying the evidential arithmetic that
obtains between these categories, rather than by his inner conviction.
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As a consequence, the power of a written document to testify to the
events of the contractual scene and its resilience in the face of contradic-
tory evidence will vary according to the various
formal requirements
it ful-
fills, such as date, signature of the parties, or of notary. For private contracts,
the only form required is that they be signed in the parties' own hand. Yet
these signatures do not, in and of themselves, testify to the identity and
consent of the parties, who must first formally recognize or disavow their
authorship of the contract. If parties do not acknowledge the signature as
theirs, a procedure of formal document examination by a court-appointed
expert is ordered by the judge. Furthermore, though the content and date
of private contracts may not be opposed by testimony, other written docu-
ments of equal or higher evidential grade may present contradictory evi-
dence. Finally, though copies may be relied upon in court, only originals
have evidential value, and must be available if the authenticity of the copy
is contested.
In spite of the eminently Cartesian spirit of the civilist approach, not
only are the principles of the Code considerably extended by case law
addressing omissions, ambiguities, and loopholes, but there are also sub-
stantial exceptions to the arithmetic of preconstituted proof. First, a written
document may fail to fulfill its form requirements: for example, that it be
