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 ?
In the initial draft, DOJ had proposed to create a rebuttable presumption that changes in a settling defendant's practices which reduce or eliminate the exposure to a listed chemical are presumed to confer a significant public benefit justifying an award of fees to a settling plaintiff.
207) The plaintiffs alleged that the use of the rebuttable presumption violated their right to due process by expanding liability to car owners who were not drivers at the time of a violation and by impermissibly shifting the burden of proof, as car owners bore the burden of proving that they were in fact not the driver at the time of the violation.
The creditor is entitled to a rebuttable presumption that the sale price of the properly is equal to the fair market value of the property at the time of sale.
263(a)-5(f) there is a rebuttable presumption that success-based fees facilitate a transaction and, therefore, must be capitalized.
The rebuttable presumption afforded higher-priced QMs will likely do little to protect creditors.
There is an oft-cited rebuttable presumption that "control" constitutes a 25% or more ownership/voting interest in the advisor, but technically the rebuttable presumption exists in the Investment Company Act and not the Investment Advisers Act.
If the partner is over 10 and under 14, there is a rebuttable presumption that no consent was given, but the defendant should have to prove the child consented and understood the nature of the act to which consent was given.
For higher-priced QMs, there is a rebuttable presumption that the bank complied with ATR.
5% over an index of annual percentage rates maintained by the Federal Reserve, and the rebuttable presumption offered for higher price mortgages.
He later served as the national legislative director of the Blinded Veterans Association, where he authored legislation that provided for a rebuttable presumption of service-connection for permanently and totally disabled veterans so their spouses and dependents could qualify for death and indemnity compensation.
If a defendant can defeat FOTM's rebuttable presumption, it defeats class certification and effectively prevails on the case.