"Verba volant, scripta manent", as the Latin saying goes. Anyone who is unable to provide written evidence fails to discharge their burden of proof.
But is that actually the case?
Imagine: you wish to prove that you objected to an invoice, but you have no written evidence. All you have is the recording of a (telephone) conversation with your supplier/contractor/contracting party in which you express that objection.
Or the opposite: your client acknowledged orally (for example during a telephone conversation) that they owed the invoice, and you recorded that conversation without their knowledge.
Or again: there is a dispute concerning the content of the contract concluded. A conversation recorded during the negotiations may shed light on the matter.
In these situations, is it possible to use conversations recorded secretly — that is, without the knowledge of the other party?
In a recent judgment of 14 June 2021, the Court of Cassation confirms that this can be done. Even evidence obtained unlawfully may serve as evidence.
The Court of Cassation holds that: "Save where the law expressly provides otherwise, the use of evidence obtained unlawfully in civil matters may be set aside only if the manner in which the evidence was gathered affects the reliability of the evidence, or if it compromises the right to a fair trial."
The mere fact that the recording is secret, and was therefore made without the consent of the other party, is not sufficient to set aside that recording as evidence.
It may be set aside only if this means of evidence is not reliable (for example, if it has been manipulated) or if it undermines the right to a fair trial.
This will be particularly important in the context of transactions between undertakings, between whom evidence may be freely adduced, but also vis-à-vis individuals, given the relaxation of the law of evidence since 1 November 2020 (Book 8 of the new Civil Code).[1]
If you encounter a problem of evidence, you may therefore consider the use of recordings — but do not forget that this also applies to the opposing party…
For more information: info@resolved.law or contact one of our attorneys directly on 02/315.53.00 or via their email address on this website.
[1] See our flash info "The new rules on evidence entered into force on 1 November 2020!" on this website.
