Evidence to the contrary against a deed on appeal: hear first, weigh afterwards

Evidence to the contrary against a deed on appeal

The loan agreement the parents and their daughter signed provided conclusive evidence between them in this case, and evidence to the contrary was open against it. On 11 July 2025 the Supreme Court quashed a judgment that shut that evidence out after weighing the written statements produced. This analysis covers what rebutting a deed takes, when a deed that is not notarial loses that force, what an offer must say, and when a court may still refuse it.

The heir argues that the loan was a gift

The heir was entitled, in principle, to call the witnesses he had named.

On 11 October 2009 two parents and their daughter signed an agreement recording a loan of €40,000 from the parents to enable her to buy a house. Interest ran at 4% a year, due each 1 December, and the whole sum fell due for repayment if she sold the house. The daughter entered into a registered partnership in June 2019 and died in September 2021. Her will made her partner sole heir, and he accepted the estate. The parents then terminated the agreement and claimed the principal with the contractual interest that had accrued.

The heir's answer was that the parents had made a gift and dressed it up as a loan to save tax. The district court largely agreed with the parents. It ordered him to pay €48,000 in principal plus statutory interest, against the €50,463.33 claimed as primary relief, and the court of appeal upheld that judgment.

The court of appeal made three findings on the evidence. The parents had to state the facts on which their claim rested and had to prove the loan (para. 5.5). The signed agreement was a deed that is not notarial, so it provided conclusive evidence as between the parties, and evidence to the contrary was admissible against it. To succeed with that evidence, the heir generally needed to do no more than rebut what the deed established. All three findings track the statute. The court then turned to the documents the heir had produced: an exchange of emails from August 2009, letters from the mortgage lender of October 2019, and written statements by the daughter's former husband and by her mortgage adviser. Taken together, the court held, they still fell short of rebutting the conclusive evidence.

What went wrong shows up in the reasons the court gave for discounting two of those statements. The former husband said he had done the daughter's tax returns for years and that she had entered €1,600 of deductible interest every year, exactly 4% of €40,000. The court read that as the conduct of a debtor. As for the mortgage adviser, the court found nothing to suggest that he had been involved in making the agreement. Both are assessments of the weight of statements by people who had not yet been heard as witnesses.

Supreme Court: hear first, weigh afterwards

Those grounds of cassation succeeded. The heir should in principle have been allowed to lead evidence to the contrary by calling the people he had named, none of whom had yet been heard as witnesses in the proceedings. He had not explained what they would add to their written statements, and that made no difference. Nobody offering evidence to the contrary can be asked for such an explanation, because the offer needs no specification at all (para. 3.2).

One sentence carries the holding. In so far as the court of appeal passed over the offer because of how it read the written statements, it wrongly pre-judged the outcome of evidence that had yet to be taken. That sentence is not new. It appears in the leading judgment of 9 July 2004 (para. 3.6) and comes back word for word in 2015 (para. 3.5), where Advocate General Keus gave it the settled tag: hear first, weigh afterwards (no. 2.8). The paragraph that follows is where 2025 adds something.

There the Supreme Court clarified the rule on one point. None of the witnesses named had been involved in making the arrangements, and that is not a sufficient ground for passing over the offer either, because evidence of what a witness was told by someone else can contribute to the evidence, and so can a witness's account of the impression the events he speaks of made on him. Where a statement rests on something other than the witness's own observation of the fact to be proved, that counts towards the weight the court gives it, and weight comes after the examination (para. 3.2). The rule therefore reaches the witness who has the story only from someone else.

Rebutting the deed is enough, and that cuts both ways

Conclusive evidence, under Section 151(1) of the Dutch Code of Civil Procedure (DCCP), obliges the court to take the content of the evidence as true. That obligation is what rebuttal attacks. Section 157(2) DCCP grants that force on narrow terms. What counts is a party's statement about the matter the deed is intended to prove for the benefit of the opposing party, and of that the deed provides conclusive evidence between the parties. A party, for this purpose, includes anyone who later acquires the right, whether he takes the whole estate or that right alone. That is why the deed bound the heir in the opening case, who had never signed it. Section 151(2) DCCP admits evidence to the contrary against it, and Section 152(1) DCCP lets a party lead that evidence by any means. The Supreme Court set those three provisions out together, in almost identical words, in 2007 (para. 3.4) and again in 2016 (para. 3.4.1).

Section 168 DCCP belongs with them. It leaves a party free, as of right, to call witnesses in rebuttal. That is why no court may demand specification of such an offer: the right is already there.

It is enough to rebut. Evidence to the contrary may be treated as having succeeded once it has rebutted what the deed established, and a court that insists on full refutation asks too much. Rebutting is not a mechanical test. The court assesses for itself whether the material adduced has sufficiently weakened the evidence the deed supplies, and full refutation is not required for that (Supreme Court 16 March 2007, para. 3.5). In making that assessment it may give any established fact whatever evidential weight it thinks right. Two brothers fighting over a right of first refusal in a deed of transfer show where the upper limit sits. The court of appeal had already found clear indications that the deed recorded the agreement wrongly. It then asked the brother challenging the deed to prove on top of that that no further agreement had been made in a later period. That was asking too much.

The same judgment runs the other way as well, and that half tends to be skipped. Once a court has found that the circumstances before it point towards the signatory's case, it has to say what the opposing party did about those pointers: contradict them adequately, or knock them down with concrete facts pointing the other way. A court that skips that step and still holds the evidence to the contrary unproved gives reasoning that cannot be followed (para. 3.6). Every circumstance counts on that question, including those falling outside the period the court has marked off for the fact to be proved.

Evidence to the contrary may challenge what the deed records

Evidence to the contrary reaches further than the party relying on the deed usually admits. It is not confined to the claim that something else was said before the notary; it extends to the claim that what the deed records is untrue (Supreme Court 13 May 2016, para. 3.4.1). A party may accept that it said what the deed reports and dispute in the same breath that what it said was true. So a buyer of shares in a pharmacy holding company had to be allowed to prove that the purchase price the notarial deed acknowledged as received had never been owed. His ground of cassation succeeded (para. 3.4.3); his cassation appeal was dismissed anyway, because a successful plea of limitation supported the judgment on its own (para. 3.5). There is a lesson in that: a good ground on the evidence buys nothing where an untouched ground carries the decision.

What a successful rebuttal buys is misjudged from both sides. Advocate General Valk put it plainly in the loan case. The parents were the ones invoking the legal consequences of the loan they alleged, and the existence of a deed matching their account did not move the burden of proof, or the risk of failing to prove it, onto the heir. Section 157(2) DCCP therefore does not reverse the burden of proof (no. 4.5). Rebut the deed successfully and the claimant lands back on the general rule of Section 150 DCCP, with the loan still to be proved by other means. In these proceedings the heir therefore did not also have to prove a gift; rebutting the evidence of the loan that the deed supplies is enough.

Without a handwritten approval the deed has free evidential force

One side road is worth taking, because it can remove the question of evidence to the contrary altogether. Where a deed that is not notarial records only one party's obligations to pay money, Section 158(1) DCCP disapplies Section 157(2) DCCP to it, unless the debtor wrote it out entirely by hand or added a handwritten approval stating the sum in words. The protection can apply in a commercially flavoured relationship too, where natural persons bind themselves personally. It does not apply where the debtor assumes the obligation in the course of a profession or business. Absent the handwritten approval the deed has free evidential force, which is to say the court weighs it as it thinks fit, and only so far as the obligations are ones to pay money: in the bitcoin judgment of 25 November 2022 the Supreme Court held that in such a case the exception reaches only the part of the statement by which the money debt was assumed, so the rest of the deed keeps its conclusive force (para. 3.1.3).

None of this puts the defendant in the clear, and a party who wants witnesses heard on the strength of it still has to offer them. A court may find the claim provisionally established on such a document, and in the case on the acknowledgement of debt Advocate General Wesseling-van Gent added, for completeness, that rebutting a provisional finding of that kind takes exactly the evidence that rebutting conclusive evidence takes (no. 2.20). The Supreme Court held first that the deed had never carried conclusive force (para. 3.3), and then that the court of appeal should have let the debtors call witnesses (paras. 3.4 and 3.5). How far the evidential force of a deed reaches, against whom it works, and when an acknowledgement of debt lacks it, is set out in the analysis of conclusive evidential force of a deed; the wider framework of the burden of proof and the taking of evidence in inspection of documents.

A specific offer names the assertion and the persons

The standard has stood since 9 July 2004. A party who offers sufficiently specific evidence of facts capable of deciding the case must be allowed to call witnesses on appeal, under Section 166(1) DCCP read with Section 353(1) DCCP. Whether an offer is specific enough turns on the circumstances, and the court looks at how the argument between the parties has developed and at the stage the proceedings have reached (Supreme Court 9 July 2004, para. 3.6). Section 166 DCCP was rewritten with effect from 1 January 2025, and the standard survives in its first subsection: witnesses are heard where witness evidence has been permitted and a party has offered evidence of disputed facts capable of deciding the case.

In principle a party offering to call witnesses can be expected to say which of its assertions the offer goes to and, so far as possible, who is able to speak to them. What those witnesses will say it generally need not say. Where witnesses have already been heard, or statements already produced, the requirement can go one step further and ask the party to say what those witnesses can add, or where they will depart from what they have said before.

That last requirement has been rolled back in two steps, and the examples show how far it has gone. A man who denied taking out a loan or giving a guarantee named four people who could confirm as much. The court of appeal wanted to know in what respect their evidence could undermine what other witnesses had already said. No court may ask that where the witnesses named have not been heard before and the facts to be proved bear on the decision (Supreme Court 9 October 2015, para. 3.6). The same judgment of 2015 disposed of a second argument, that the four had not been directly involved in the negotiations. Advocate General Keus gave a plain reason for that. They had heard the conversation for themselves, so they would be speaking of facts within their own knowledge for the purposes of Section 163 DCCP (no. 2.7).

Two questions stayed open after that, and the heir in the loan case ran into both. Written statements from his witnesses were already on the file, and none of them had been present when the loan was agreed. The 2025 judgment goes further on each. Where the evidence offered is in rebuttal there is nothing to explain, because the offer needs no specification whatever, and that holds even where statements from the same people have already been produced. First-hand observation, meanwhile, is no condition of entry to the witness box.

Where an offer of evidence may still founder

The case law discussed here yields at least three situations in which an offer may still founder. None of the three says anything about how the offer must be worded.

The first is relevance. A court may pass over an offer that has no bearing on the decision, that is, where the facts offered would not affect the outcome even if established. That calls for a finding on what those facts would mean for the outcome, not on how convincing the evidence for them looks. The line is thin. Advocate General Verkade wrote in 2004 that it is not always easy to draw (no. 4.2), and Advocate General Keus quoted the passage in 2015 in an opinion the Supreme Court followed in full (no. 2.8). The loan case shows just how thin it is. The court of appeal held there that the offer had no bearing on the decision. To Advocate General Valk the real reason looked to be that the court did not yet find the written statements convincing and assumed the oral evidence would not convince either (no. 3.16). A finding on relevance that in truth rests on how convincing the evidence is amounts to the pre-judgment the rule forbids.

The second ground asks whether the fact was properly disputed in the first place, and that question sits outside the offer, so the absence of any specification requirement does nothing for a party here. Whether a party has stated the facts on which its claim rests is, as Keus put it, an altogether different question from whether it has offered specific and relevant evidence (no. 2.9). Section 149(1) DCCP obliges the court to treat as established any fact that has not been disputed, or not disputed sufficiently, and since the rewriting of Section 166 DCCP a dispute over the facts appears expressly among the statutory conditions for hearing witnesses. Once a fact is established there is nothing left to rebut, and no offer, however carefully drafted, can help. A party need not specify its offer; it does have to have disputed the fact.

Advocate General Valk names, as a possible borderline case, the only situation that looks at the witnesses named themselves. In his view the position might be different if the statements produced showed that the witnesses cannot know anything about facts relevant to the decision (no. 3.14). That is a different question from whether their statements convince: it asks whether they can say anything at all about the fact to be proved. The situation did not arise in the loan case, and what the court of appeal itself wrote about those statements is what showed it.

What should a party offering evidence on appeal do?

With an ordinary offer, name at least the disputed facts the offer goes to and, so far as possible, the witnesses who can speak to them. An exact forecast of what they will say is generally not required. An offer of evidence to the contrary needs no specification, and even there a clear link to the dispute is the practical course.

With a written statement, point at the person behind the paper. A statement produced in the proceedings is material the court may weigh, and evidence given on oath may carry different weight. Until its author has been heard, the offer to call him stands on its own feet, and that combination is exactly where the loan case came apart: the court of appeal weighed the statements and left their authors unheard.

Do not unequivocally give up an offer made at first instance. In the case on the acknowledgement of debt the offer sat in paragraph 84 of a statement of defence, and the party that had made it came to the appeal as respondent. Once the grounds of appeal gave cause to do so, the court of appeal had to deal with arguments raised at first instance, and that duty covered the offer (no. 2.26). A clause maintaining every assertion and defence advanced below underlined that the offer had never been unequivocally given up. Repeating the offer is still the better course, and the clause is cheap insurance.

Attack the first court's premise on the evidence as well. In the pharmacy holding case the notarial deed carried, next to the statement about the purchase price, the usual closing passage that the persons appearing before the notary had read the contents and agreed to them. The district court gave that passage evidential force of its own. No ground of appeal was aimed at that finding, so the court of appeal had to take it as given. His ground of cassation on the point succeeded, so that is not what defeated him; limitation defeated him, as set out above. It did make the road to evidence to the contrary needlessly long. Leave the premise standing and it carries over into the appeal.

Aim the ground of appeal at the refusal and at the finding beneath it. Where the evidence offered makes sense only as support for a fact the party has disputed and never abandoned, a ground of appeal against the refusal attacks the finding on that dispute as well. The Supreme Court so held in 2019, in the case of a tenant who had offered to call the estate agent to prove that the landlord wanted to sell (para. 3.4.2), an ordinary offer of evidence. Even so, one express reference back to what was disputed below is cheaper than the cassation proceedings it took to settle the point.

The sequence the Supreme Court insists on costs the court nothing and is worth everything to the party making the offer. A party who offers sufficiently specific witness evidence of relevant, disputed facts in good time must in principle be admitted to the examination. An offer of evidence to the contrary carries no specification requirement. The weighing comes only after the examination.

Cited case law

Supreme Court: ECLI:NL:HR:2025:1141 (11 July 2025, an offer of evidence to the contrary needs no specification, not even where written statements from the same people have been produced, and passing over it on the strength of an assessment of those statements pre-judges evidence still to be taken; evidence at second hand, and a witness's account of his impressions, can contribute); ECLI:NL:HR:2004:AO7817 (9 July 2004, the standard for an offer of evidence on appeal: sufficiently specific evidence of facts capable of deciding the case, and no need to say what the witnesses will say); ECLI:NL:HR:2015:3009 (9 October 2015, where the witnesses named have not yet been heard no court may ask in what respect their evidence undermines what earlier witnesses said, and their not having been directly involved in the negotiations cannot on its own justify passing over the offer); ECLI:NL:HR:2007:AZ0613 (16 March 2007, evidence to the contrary against a deed may be treated as having succeeded once it has rebutted what the deed established, insisting on full refutation asks too much, and the court must find that the opposing party contradicted or knocked down the indications); ECLI:NL:HR:2016:848 (13 May 2016, evidence to the contrary may also go to the assertion that the statement recorded in the deed is untrue; the appeal was dismissed on a plea of limitation that supported the judgment on its own); ECLI:NL:HR:2017:566 (31 March 2017, without a handwritten approval within the meaning of Section 158(1) DCCP, Section 157(2) DCCP does not apply and the deed has free evidential force, and an offer of evidence made at first instance that has not been unequivocally given up may not be ignored); ECLI:NL:HR:2022:1725 (25 November 2022, the exception in Section 158(1) DCCP reaches only the part of the statement by which the money debt was assumed); ECLI:NL:HR:2019:505 (5 April 2019, on an ordinary offer of evidence: a ground of appeal against the refusal of the offer also attacks the rejection of the assertion the evidence was offered to support; grounds of appeal need not be labelled as such but must be recognisable).

Opinions of the Advocate General: ECLI:NL:PHR:2015:942 (Advocate General Keus, followed: the rule that a court may not pre-judge the outcome of evidence still to be taken, hear first and weigh afterwards, is settled case law, and a witness need not have been involved in the negotiations to speak of facts within his own knowledge); ECLI:NL:PHR:2025:206 (Advocate General Valk, 14 February 2025, a finding that an offer has no bearing on the decision may in truth be an impermissible pre-judgment of the evidence where it rests on how convincing the statements produced are); ECLI:NL:PHR:2017:48 (Advocate General Wesseling-van Gent, 3 February 2017, followed: the requirement of a handwritten approval protects against signing acknowledgements of debt and blank documents without thinking; once the grounds of appeal give cause to do so, the appeal court must deal with arguments raised at first instance, and so with an offer of evidence the respondent made below; for completeness: rebutting a provisional finding takes the same evidence as rebutting conclusive evidence); ECLI:NL:PHR:2019:63 (Advocate General Langemeijer, 18 January 2019, followed: the evidence offered would have been pointless without a connection to a fact the party had disputed and never abandoned, and the construction of the grounds of appeal is reserved to the court of fact and reviewable in cassation only for intelligibility, para. 3.3.2).

Juriaan de Vries is a lawyer at Prime Law and litigates on contracts and evidence. See the disclaimer.

See also

• Conclusive evidential force of a deed: who can rely on it?
• He who asserts must prove: how the burden of proof is allocated
• Family privilege: may a relative refuse to give evidence?