The Binding Force of an Admission on the Parties Concerning It, Depending on the Nature of the Civil Right to be Established

(An Applied and Fundamental Study in Tunisian Legislation)

Abstract

This study seeks to examine the impact of the distinction between pecuniary and non-pecuniary rights on the binding effect of admission as a means of proof in civil matters with respect to the parties, in light of the established relationship between the rules governing admissions and the nature of the right sought to be established, and the consequent variation in the evidentiary force of such admissions according to the nature of that right. Although admission possesses an inherent evidentiary value, it is not readily possible to presume that it invariably reflects the truth in a manner sufficient to establish rights that do not bear the characteristics of financial transactions. This necessitates due regard for the distinction imposed by the differing nature of pecuniary and non-pecuniary rights when determining the binding effect of admissions upon parties. The hypothesis underlying this study is supported by preliminary indicators demonstrating its seriousness. Firstly, the Tunisian legislator has established a legal framework governing the evidentiary effect of admissions within the provisions of the Tunisian Code of Obligations and Contracts. Secondly, separate rules concerning the binding effect of admissions have been enacted in other legislative instruments, such as the Tunisian Personal Status Code and the Tunisian Family Name Attribution Act. Conversely, the jurisprudence of the Judiciary has shown that, whenever due consideration has been given to the distinction between pecuniary and non-pecuniary rights the resulting conclusions regarding the binding effect of admissions upon their parties have been both rational and coherent. For the purpose of ensuring sound reasoning, this study adopts a Fundamental methodology based upon of  (a functional approach). Such an approach leads to the conclusion that the binding effect of an admission relating to a pecuniary right is confined to the patrimony of the declarant and to his universal successors, to the extent of the assets devolving upon them through succession. By contrast, the non-pecuniary nature of a right delineates a different scope for the binding effect of admissions upon their parties.