The Burden to Plead Legal Facts

Abstract The second sentence of Section 17(3) of the Swedish Code of Judicial Procedure provides that, in cases where out-of-court settlement is permitted, a court may not base its judgment on a circumstance not pleaded (Sw. åberopa ; Ger. Behaupten ) by a party as the foundation of his action. This provision encapsulates the principle under which the parties themselves determine the subject-matter of an action (Sw. dispositionsprincipen , Ger. Dispositionsgrundsatz ). An extensive body of concepts and theories has been developed in the context of Swedish civil procedural law to elucidate this provision. The conceptual and theoretical development has primarily focused on the questions of ‘what’ and ‘who’. The former pertains to the concept of a legal fact (Sw. rättsfaktum ; Ger. Rechtfaktum ). The latter pertains to the burden to plead legal facts (Sw. åberopsbörda ; Ger. Behauptungslast ). The Swedish conceptual and theoretical development is significantly influenced by German law, and these questions were at the centre of the Swedish jurisprudential debate in the mid-20th century, at the time of the Swedish procedural reform. However, it is also important to take note of the extensive and more recent court practice in this area. In my recently published doctoral thesis, I revisit the topic with a particular focus on the allocation of the burden to plead legal facts. The thesis highlights that the burden to plead legal facts has procedural economic overtones and that it constitutes a central element in the Swedish interpretation of the adversarial principle.