Oath décisoire

The oath décisoire is an oath submitted by a litigant with his adversary, on personal facts with this last, in order to make some depend the solution on the litigation (articles, Civil code French). Equipped with such effects, the oath décisoire constitutes a legal Preuve. The part which it is asked to lend oath has three possibilities:

either it lends oath and gains its lawsuit,
or it refuses and loses its lawsuit,
or it refers the oath with the opposing party and thus puts its fate between the hands of the other part.

religious and moral connotation of the oath

It is not doubtful that the institution of the oath as regulates proof in French right translates a confidence surprising in the moral direction or the faith of that which is subjected solemnly to the oath.

Indeed, if one can include/understand that the Aveu can be retained against its author, it is because the latter betrays a truth which he denies in front of the Judge. On the contrary, the oath décisoire consists for that which lends oath to reiterate its preceding declarations solemnly. It is what is called being believed " under oath " and it is sufficiently rare that the law makes it possible part of constitute with itself a proof so that is raised.

However, the oath décisoire can be submitted with a litigant only by his adversary, so that this means of proof will be used only if one part supposes with its contradictor a probity moral or religious or a direction of the honor sufficient for not parjurer.

In parallel, when the religion prohibits the oath (anabaptists, Quakers), the jurisprudence of the XIXe century authorized to substitute a simple assertion to him (Court of appeal, room of the requests, March 28th, 1810).

Today, the oath is, by principle, formed in a form " laïque" (Court of appeal, civil court, March 3rd, 1846; court of criminal appeal, October 30th, 1940, which decides that the Court cannot force to lend oath to the mosque).

A religious ceremonial is thus not necessary (Court of appeal, room of the requests, May 4th, 1936) but a part has the right to lend oath according to the forms of its religion (for example, for a Moslem which lends oath with a hand on Coran, to see stop of the above mentioned May 4th, 1936).

The decline of the religious feeling in the current populations explains certainly a sensitive reduction in the recourse to the oath like mode of proof. The scarcity of the legal decisions which appear on this subject is notable.

References

Random links: