Summary

The wrongful conduct of a person is a precondition of both civil liability and criminal liability. Hence the question arises whether the fault of a person is to be proved as a subjective element of liability. While penal law offers a clear answer - presumption of innocence, the civil law of different countries provides several alternatives. For example, under the Estonian Law of Obligations Act (LOA), the burden of proof lies with a person, which means that the person must prove the absence of fault in order to be released from liability.
The author analyses whether presumption of the fault of a person who has caused loss is a justified solution provided by the LOA. For this purpose, the author focuses on the applicability of the principle of fault in the case of penal liability and civil liability, and examines the possibilities of the burden of proof in the case of civil liability. The author analyses the process of proving fault in criminal proceedings, and examines the reasons for application of presumption of innocence in criminal procedure and why presumption of innocence cannot be an absolute legal principle applicable to civil liability. Finally, the author analyses why the presumption of fault in the case of civil liability is justified.