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3 Newsl. 1 (1990)

handle is hein.journals/jwlrpt3 and id is 1 raw text is: TOURO Chaim Povarsky, Director Institute of Jewish Law Advisory Council (in formation) Dov Frimer Menachem Genack Howard A. Glickstein Aaron Kirschenbaum Sidney Kwestel Daniel Lander Nahum Rakover Ronnie F. Warburg Executive Committee Neil Afran Michael Beer Stephen Hochberg Sidney Kwestel Lois Markowitz Abraham Mosden Rena C. Seplowitz Dan Subotnik Edward M. Taylor Dr. Bernard Lander, President Touro College Howard A. Glickstein, Dean Jacob D. Fuchsberg Law Center The Burden of Proof Rests With the Claimant Stewart v. K-Mart Corporation Institute of Jewish Law NEWSLETTER Editor: Dr. Chaim Povarsky March 1990 TABLE OF CONTENTS I. Allocation of the Burden of Proof in Jewish and American Civil Law II. Activities of the Institute III. The Latest Word a. In Academia b. In the Literature Allocation of the Burden of Proof in Jewish and American Civil Law by Dr. Chaim Povarsky A basic evidentiary principle in Jewish Civil Law is Ha-Motzi Me'Chavero Alav Ha-Reaya; the burden of proof rests with the claimant. (More literally, the burden of proof rests with the one who wants to take something from another.)* Although American law generally recognizes the rule that the burden of proof lies with the party who seeks to change the status quo (which is similar to the Jewish principle), there are other factors, mentioned below, that a court must consider in deciding how to allocate the burden of proof (see e.g., McCormick on Evidence, § 337 at 952 (3d ed. 1984); Am Jur. 2d. §§ 127-131; Landers, Martin & Yeazell, Civil Procedure §§ 763-764 (2d ed. 1988). Consequently, in many instances Jewish and American law would arrive at different conclusions on the burden of proof issue. A recent case illustrates these differences. In Stewart v. K-Mart Corporation, 747 S.W. 2d 205 (Mo. App. 1988) the plaintiffs, mother and son, shopped at K-Mart and paid the bill at the cashier. After they left the store,

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