Negotiated truth?

Abstract

This work analyses the possibility of negotiating agreements between the parties of a civil proce-dure in order to determine whether an alleged fact is true or false. From a point of view close to “critical realism”, the author propounds that the truth of a fact cannot be constructed through negotiations, because the fact exists in the material world regardless of the parties’ behaviour during the trial. Special consideration is being laid on the legislative and jurisprudence policies of reckoning that if the defendant does not contest a fact claimed by the plaintiff in the plea-ding then that fact is an “uncontested fact” and must be outside the thema probandum because it exists and it is true. It is being proposed that the omissive behaviour of the civil defendant, far from influencing the veracity of an alleged fact, can only affect the burden of proof of such uncontested alleged fact.