This article explains the concept of customary documents, their basic conditions, and how their evidentiary value may be assessed when relied upon in disputes.
Definition of customary documents
Customary documents are documents issued by individuals without being prepared by a public officer in an official capacity. They are written documents signed by the person to whom they are attributed and intended to evidence a contract, obligation, or legal act.
They differ from official documents because they do not carry the same official formalities, even if they may still have evidentiary value once their attribution is established.
Main conditions
A customary document generally requires two essential elements: writing and signature. Writing may be in any language and by any means, including handwriting or electronic typing, provided that it conveys the intended meaning.
The signature is the key element because it indicates that the signer acknowledges what is written in the document. It may take the form of a handwritten signature, fingerprint, seal, or another identifying mark depending on the circumstances.
Evidentiary effect
If a party relies on a customary document bearing the other party’s signature, its effect depends on the response of the person against whom it is used. If the signature is admitted, the document becomes evidence of its issuance. If it is denied, the party relying on it must prove its attribution.
The proof of attribution may be through procedures related to handwriting, signatures, fingerprints, or seals, unless the court finds sufficient evidence from the circumstances and documents of the case.
Admission, silence, and denial
Admission of the signature generally prevents the person from later denying the issuance of the document. Silence may also be considered in light of the circumstances if the person had the opportunity to deny and did not.
Denial must be clear and specific. Merely stating doubt or lack of memory may not be treated as a valid denial. Denial should generally occur before discussing the substance of the document.
Written letters
Written letters may sometimes include acknowledgments, undertakings, or facts relevant to proof. If a letter is signed, it may in many cases take the evidentiary position of a customary document, depending on its wording and circumstances.
If a letter is not signed, it may still be considered by the judge as a beginning of written proof or as a circumstantial indication, depending on the facts of the case.
Practical conclusion
Customary documents and written letters remain important in evidence because many transactions occur outside formal documentation. Their value depends on writing, signature, clarity, attribution, and the court’s assessment of the surrounding circumstances.