rebuttable presumption


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rebuttable presumption

A law of evidence that something will be considered true (the presumption) until it is proven untrue (rebutted).When a rebuttable presumption has been created,it normally shifts the burden of proof to a different party than would normally have it. For example,

• In some jurisdictions, if a bankrupt debtor company owns only one asset, and that asset was transferred to the company shortly before it filed for bankruptcy, then there is a rebuttable presumption that the transfer was fraudulent and intended to isolate that one asset and its creditors from other assets belonging to the original owner. The debtor must prove the transfer was not fraudulent, rather than the creditor being required to prove it was fraudulent.

• In some states, when spouses take property as joint tenants with rights of survivorship, but one spouse provided all the money for the purchase, there is a rebuttable presumption that a gift was intended to the other spouse. As a result, if the one providing the money wishes the whole of the property upon divorce, and the state is not a community property state, then the paying spouse has the burden of proving it did not intend a gift to the nonpaying spouse.

• If there is a boundary line dispute and one party destroys evidence, such as tearing down a fence or removing markers or pins, there is a rebuttable presumption that the evidence would have been adverse to the party who destroyed the evidence.

References in periodicals archive ?
While more difficult, the rebuttable presumption will also make summary judgment more feasible for higher-priced QMs.
Following a long-term marriage--longer than 20 years--a rebuttable presumption in favor of awarding alimony would have existed.
Preventing these inefficiencies and anticompetitive effects requires a simple solution: causation should be a rebuttable presumption and the two-year compensation amount merely a default award, adjustable to actual damage upon proof.
3) Furthermore, "proof of verifying the employment authorization of an employee through the E-Verify program creates a rebuttable presumption that an employer did not knowingly employ an unauthorized alien.
In Pension Committee, Judge Scheindlin takes a directive stance on this issue, suggesting that a rebuttable presumption of both relevance and prejudice should be applied almost as a matter of course when spoliation results from gross negligence or willful destruction.
Mayer strongly defends the Lochner Court's use of a "moderate means-end test" to create "a general but fairly rebuttable presumption in favor of liberty" (p.
THE COURT APPLIED A REBUTTABLE PRESUMPTION STANDARD.
Once a plaintiff has established that the third party had knowledge of the underlying action or potential action, and that the third party assumed control over the evidence, and that the "lost or destroyed" evidence was "vital" to a plaintiff's case, a rebuttable presumption arises in favor of the plaintiff.
36) The lawfulness of a rebuttable presumption is gauged according to the strength of the presumption's rationality, (37) with the caveat that "any fact presumed must, for due process, have a natural, not an unreasonable or an unnatural, connection with the facts proven.
The 1996 regulations also instituted a "36-month rule," which created a rebuttable presumption that if a creditor had not received a payment on a loan in 36 months, it was required to issue Form 1099-C.
Failure to report is a rebuttable presumption that the event occurred at the hospital or nursing home unless previously reported by the long-term care facility.