Cryptography Reference
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signed. Such failure does not imply that the contract is void, or that it
cannot be proven, but rather that the document qualifies only as prima
facie evidence, and the arithmetic of its value is left to the appraisal of
the judge. In fact, a judge may admit under the same conditions any
written document “emanating from the party against which claims are
made and which makes plausible the alleged fact” along with any testi-
mony that may further support it. The judge may also consider the record
of the sworn testimonies of the parties as such written prima facie evidence.
As well, in cases where parties are unable to produce a written document
due to theft, war, natural destruction, loss, or social norms (e.g., a debt
between husband and wife), proof may obtain by any means, including
testimony.
By requiring adherence to basic rules of form, and by specifying the
arithmetic of their evidential value, the Civil Code ensures contracting
parties a certain amount of predictability and a more level playing field in
litigation. Yet judges have remained pragmatically aware of the many limi-
tations of written proof instruments; their susceptibility to tampering, loss,
and accidental destruction; or even their absence between parties who
expected to be primarily bound by their bona fides. . The courts have con-
sequently protected the ability of judges to rule based on their inner con-
viction, and it is indeed one of the sovereign powers of French judges to
evaluate the relative strength of all evidence presented to them—an evalu-
ation protected from challenge on appeal.
To Reform or Not to Reform
In the 1970s, new communication technologies (telephone, telex, fax) and
new methods of reproducing and archiving documents (photocopiers,
microfilms, microforms) simultaneously extended and challenged the pri-
macy of paper as contractual instrument. In particular, Computer Output
Microfilm (COM) found widespread use in France as a cost-effective way
for the storage and retrieval of the “paperwork explosion” experienced by
the military, scientific, financial, and insurance fields.17 17 Yet the formal
requirements of written proof posed significant hurdles to their adoption
in the business world: on the one hand, the obligation to preconstitute
proof for all transactions over 50FF imposed a heavy administrative burden
on transactions of small value; on the other hand, the requirement to
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