An inference is a conclusion of fact drawn from proof of a fact or group of facts. A presumption is a legally mandated inference drawn from proof of a specified fact or group of facts (basic fact/s). Proof of the basic fact is also proof of the existence of the presumed fact unless the presumed fact is rebutted or contradicted.
Presumptions are based on the logical relation between the basic fact and the presumed fact or on probability anchored on common sense and human experience, such as the presumption that things have happened according to the ordinary course of nature and the ordinary habits of life. Presumptions are also based on public policy considerations, like the presumption of regularity in the performance of official functions.
Presumptions are found not only in the Rules of Court but also in statutes, like the presumption of good-faith possession in Article 527 of the Civil Code, and in other Supreme Court issuances, like the presumptions regarding a digital signature under Section 4, Rule 6 of the Rules on Electronic Evidence.
Example of an inference. A witness testifies that the defendant received the letter. No rebuttal or contradictory evidence was presented by the defendant. From such testimony, the court may but is not legally obligated to infer or find that the defendant received the letter.
Example of a presumption. The plaintiff introduces evidence proving that a letter was duly directed and mailed to the defendant. This gives rise to the presumption that the letter was received by the defendant in the regular course of the mail (S3[v] R131). If this presumption is not rebutted or contradicted by the defendant, the judge must find that the defendant received the letter.
Thayer vs Morgan
There are two theories on the effect in civil cases of contradictory evidence on the presumption and on the required weight of such contradictory evidence. These are the Thayer theory and the Morgan theory.
Under the Thayer[1] or “bursting bubble” theory, the effect of a presumption is to shift to the opponent the burden of evidence but not the burden of proof. Once the opponent presents contradictory evidence (i.e., evidence which would support a finding of the non-existence of the presumed fact), whether or not believed by the judge, the presumption vanishes like a bubble that has burst. The case stands as if there was no presumption. The judge may not infer the existence of the presumed fact from mere proof of the basic fact.[2]
Illustration. Plaintiff proves that a letter was duly directed and mailed to the defendant. The defendant made a bare but categorical denial of receipt. The presumption under Section 3(v) of Rule 131 vanishes. A presumption is rebutted upon the introduction of evidence which would support a finding of the non-existence of the presumed fact. Testimony of non-receipt of letter, standing alone, would be sufficient to support a finding of non-receipt; such a testimony is hence sufficient to rebut the presumption of receipt of a letter duly directed and mailed. The court may not even infer that defendant received the letter from proof alone of due mailing.[3] Of course, proof of due mailing taken together with other corroborative evidence may be proof of receipt. But such situation is governed by the general rules of evidence, particularly the rule on circumstantial evidence, and not the rule on presumptions.
Illustration. Suit by beneficiary against insurer to enforce a life insurance policy. The plaintiff invokes the presumption under Section 3(w) of Rule 131 by introducing evidence that the insured has been absent for seven years without any information on whether he is still alive. The insurer presents a witness who testifies that he just saw and talked with the insured a few days ago. Such evidence, even if not believed by the judge, contradicts the presumption that the insured is dead. The presumption vanishes and can no longer be used by the plaintiff. He must prove the insured’s death under the general rules of evidence.
Under the Morgan theory,[4] a presumption shifts the burden of proof so that the opponent must rebut the presumption by the required quantum of evidence, failing which the presumption holds and the judge must thus find for the existence of the presumed fact. The rationale for the theory is that presumptions are based on policy considerations, and hence such considerations are best served by according to presumptions the strength they deserve.
Illustration. Under the previous illustration involving the mailing of the letter but applying the Morgan theory, proof of due mailing would now shift the burden of proof to the defendant. The defendant must present preponderant evidence that he did not receive the letter; otherwise, the court shall find that he did receive the letter.[5]
Likewise, under the previous illustration on the insured who disappeared but applying the Morgan theory, if the judge finds that the insurer’s evidence that the insured is still alive is not preponderant, the judge should make a finding that the insured is dead.
Combined California approach
The California Code of Evidence adopts the Thayer theory insofar as presumptions which are not grounded on public policy are concerned (“Thayer presumptions”) and the Morgan theory for presumptions which are intended to implement a public policy, such as the presumption on validity of marriage (“Morgan presumptions”).[6]
Pre-2019 rule
Prior to the effectivity of the 2019 Rules of Evidence, something similar to the California approach was followed in our jurisdiction. The Thayer rule applied to most presumptions in line with the rule that the burden of proof never shifts. However, jurisprudence in effect applied the Morgan theory to certain presumptions with weighty policy considerations, like the presumption of regularity of official functions, the presumption of genuineness and due execution of public documents, and the presumption of the validity of marriage. In these presumptions, jurisprudence in fact followed a strong form of the Morgan theory by holding that the contradictory or rebutting evidence must be “clear and convincing.” This effectively shifted the burden of proof to the party against whom the presumption was invoked.
2019 Rules of Evidence adopts the Thayer theory
The Morgan theory was rejected in Federal Rules of Evidence (FRE) 301 which states that a presumption does not shift the burden of proof.[7] FRE 301 reads thus:
“In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.”
FRE 301 was substantially adopted in the first paragraph of Section 5, Rule 131 of the 2019 Rules of Evidence. Said paragraph provides that “[i]n all civil actions and proceedings not otherwise provided for by the law[8] or these Rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption.” This provision clarifies that a presumption shifts to the opponent only the burden of evidence, not the burden of proof.[9] Section 5 of Rule 131 thus adopts the Thayer theory while rejecting the Morgan theory.
The significance of the adoption of the Thayer theory by the 2019 Rules of Evidence should not be overlooked. It means that prior jurisprudence which held that a presumption must be overcome by clear and convincing evidence is deemed abandoned.
Counterproof on the basic fact
The situation where the opponent offers counterproof against the basic fact rather than the presumed fact is not expressly covered by Rule 131. In such a case, the judge must find for the existence of the presumed fact if he finds for the existence of the basic fact despite the counterproof.[10]
Illustration. Suit by beneficiary against insurer to enforce a life insurance policy. The plaintiff invokes the presumption under Section 3(w) of Rule 131 by introducing evidence that the insured has been absent for seven years without any information on whether he is still alive. The insurer presents a witness who testifies that he saw and talked with the insured four years before the trial. This evidence disputes the basic fact that the accused was absent for seven years but does not dispute the presumed fact that the accused was already dead at the time of the trial. The judge must still find that the insured is dead if he finds that the insured has been so absent for seven years. In other words, contradictory evidence against the basic fact does not make the presumption vanish if the judge still finds for the existence of the basic fact.
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[1] Named after Professor James Bradley Thayer, a renowned scholar of evidence law.
[2] In re Yoder Co., 758 F.2d 1114 (6th Cir. 1985).
[3] Id.
[4] Named after Professor Edmund Morgan, another renowned authority on evidence law.
[5] ARTHUR BEST, EVIDENCE 323 (12th ed., 2020). See Allied Banking Corporation v. De Guzman, 9 July 2018, Peralta, J.
[6] California Code of Evidence §§603-606. Interestingly, the presumption of receipt of a letter duly mailed is classified as a Thayer presumption (§641).
[7] The FRE Advisory Committee favored the Morgan theory, but its view was rejected by the House and Senate Committees. Eventually, the Conference Committee adopted the Thayer theory.
[8] An example of a law providing that a presumption shifts the burden of proof is Article 527 of the Civil Code which provides that good-faith possession “is always presumed and upon him who alleges bad faith on the part of the possessor rests the burden of proof.”
[9] SC Committee Explanatory Notes 41, footnote no. 70.
[10] Mueller, Kirkpatrick, & Richter, Black Letter Outline on Evidence 470-471; Arthur Best, Evidence 236-237 (12th ed.).
