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Antonio S. SANCHEZ-GIL, La presunzione di validità dell'atto giuridico nel diritto canonico, Pontificia Università della Santa Croce Monografie Giuridiche 30, Milan, Giuffrè, 2006, 275 p.-ISBN 88-14-13148-1- euro29,00.
This is a thorough, though sometimes didactic, study on the presumption of the validity of juridic acts as stated in CiC c. 124, §2: "a juridic act placed correctly as to its external elements is presumed to be valid" (cf. CCEO c. 931, §2). The presumption is iuris tantum and so is capable of being overturned by proof of invalidity. The juridic act and the presumption of its validity are fundamental in the canonical system, including tribunal practice, so canonists in general could profit from a serious study of this work.
The first of the three chapters offers some general considerations on the juridic notion of the presumption. After investigating its antecedents in Roman and Germanic law, the A. explains the nature of the juridic presumption. The Code defines a presumption as "a probable conjecture about an uncertain matter" (c. 1584). The A. explains that a presumption establishes a degree of probability that allows one to proceed prudently with moral certitude but without absolute certainty. He discusses both the praesumptio hominis and iuris, but it is the latter that is really germane to his study. A presumption of law is explicitly stated in the law. Anything presumed by the law requires no proof (c. 1526, §2, 1°). The burden of proof falls on the one who seeks to overturn the presumption.
The second chapter treats the background to and development of c. 124. Unlike the...