FACTUM PROBANDUM vs. FACTUM PROBANS
(Under Philippine Rules on Evidence, specifically Rule 128 of the Rules of Court, and relevant jurisprudence and principles in Remedial Law)

I. INTRODUCTION

In the Philippine legal system, particularly under the Rules of Court, evidence is the means of ascertaining the truth regarding matters of fact in a judicial proceeding. A precise understanding of “factum probandum” and “factum probans” is crucial to effectively present, analyze, and rule on evidence. These two terms form the conceptual basis of what lawyers and judges refer to when distinguishing between the ultimate fact or proposition to be proven and the evidentiary facts used to prove that ultimate fact.

II. DEFINITIONS AND DISTINCTIONS

Factum Probandum (Ultimate Fact or Proposition To Be Proved)
- Definition: The factum probandum is the principal fact in issue, the ultimate fact, or the proposition that a party seeks to establish in the litigation. This is the core matter that the party must prove to prevail, such as the fact of liability, the fact of negligence, or the fact of ownership.
- Example: In a civil suit for collection of sum of money, the factum probandum is that the defendant owes the plaintiff a certain amount and has not paid the obligation.
Factum Probans (Evidentiary Fact)
- Definition: The factum probans consists of the supporting facts or pieces of evidence—documentary, testimonial, or object—employed to prove the factum probandum. These are the subordinate facts from which, directly or indirectly, the factum probandum may be inferred.
- Example: In the same civil suit for collection of sum of money, the factum probans could be a duly executed promissory note, receipts, or testimonial evidence from a witness who saw the defendant borrow money from the plaintiff.

III. LEGAL SIGNIFICANCE OF THE DISTINCTION

Pleading of Ultimate Facts (Factum Probandum) vs. Evidentiary Facts (Factum Probans)
- Under Philippine procedural rules, specifically the 2019 Amendments to the Rules of Civil Procedure, a party is required in the complaint (or answer) to state ultimate facts, not evidentiary matters. Ultimate facts are those that directly constitute the party’s cause of action or defense.
- Evidentiary facts (factum probans) generally need not be stated in the pleadings; they are presented during the trial to prove or disprove the ultimate facts alleged. Alleging evidentiary facts in the pleadings is considered surplusage and may even be disfavored.
Relevance and Materiality
- Under Rule 128, Section 3 of the Rules of Court (on “Admissibility of Evidence”), evidence is admissible only if it is “relevant to the fact in issue” and not excluded by law or the Rules.
- The fact in issue refers essentially to the factum probandum (the ultimate fact to be proven). A piece of evidence (factum probans) must have a direct relation to the factum probandum to be deemed relevant.
Method and Order of Proof
- During trial, counsel will systematically present the factum probans—such as witness testimonies, documents, and exhibits—aimed at establishing the factum probandum.
- The court, in evaluating admissibility, asks: “Does this piece of evidence have any tendency to make the factum probandum more or less probable?” If yes, it is relevant and typically admitted, subject to other rules (e.g., hearsay, best evidence rule, etc.).
Avoiding Confusion
- Mixing up the two can lead to confusion in both drafting pleadings and presenting evidence. An overly detailed complaint or answer weighed down with evidentiary facts can be subjected to a motion to strike out superfluous matters. Conversely, omitting key ultimate facts in a pleading can lead to dismissal of the complaint or the weakening of the defense.

IV. EXAMPLES AND APPLICATION

Civil Litigation
- Factum Probandum: The defendant was negligent in operating his motor vehicle and caused damage to the plaintiff.
- Factum Probans: The eyewitness account, traffic CCTV footage, police accident report, medical records of the plaintiff, and expert testimony on the cause of the accident—these are all the evidentiary facts used to prove the defendant’s negligence.
Criminal Prosecution
- Factum Probandum: The accused committed the crime of theft by taking personal property belonging to another, with intent to gain, without the owner’s consent.
- Factum Probans: Testimonies of witnesses who saw the accused take the item, the recovered stolen item, and any relevant documentary evidence (e.g., a receipt proving ownership)—all these are used to establish each element of theft.
Family Law Cases (e.g., Nullity of Marriage)
- Factum Probandum: Psychological incapacity (under Article 36 of the Family Code), or a ground like repeated physical violence.
- Factum Probans: Psychiatrist/psychologist’s evaluation, the testimonies of family members, documentary proof of repeated injuries or violent incidents, diaries, electronic messages, etc.

V. RELEVANCE TO REMEDIAL LAW AND LEGAL ETHICS

Remedial Law Focus
- In Remedial Law, the manner and sequence of presenting a party’s case revolve around establishing ultimate facts through evidentiary support. Lawyers must be adept at connecting each factum probans to the ultimate proposition in issue, ensuring that every piece of evidence is material and relevant under the Rules.
Ethical Considerations in Evidence Presentation
- Candor to the Court: Lawyers are ethically obligated (under the Code of Professional Responsibility and the newly introduced Code of Professional Responsibility and Accountability) to present evidence that is truthful and relevant. Presenting spurious or fabricated evidence to support the factum probandum is sanctionable.
- Fairness to Opposing Party: Attorneys must avoid harassing tactics or introducing immaterial evidence purely for delay or confusion. The distinction between factum probandum and factum probans ensures that only relevant evidentiary facts are presented in court.
Drafting of Legal Forms
- Skilled lawyers ensure that pleadings focus on ultimate facts—the factum probandum—while the supporting documents or testimonies (factum probans) are organized in the annexes or presented during trial. This streamlines litigation and avoids unnecessary complexity in the initial stages.

VI. JURISPRUDENTIAL GUIDANCE

Although Philippine jurisprudence may not always use the Latin terms “factum probandum” and “factum probans” explicitly, Supreme Court decisions consistently apply the principles behind them. Key rulings emphasize that:

Ultimate Facts Must Be Alleged:
- Courts have ruled that a complaint or information must set forth the ultimate facts constituting the plaintiff’s cause of action or the accused’s alleged offense. Failure to do so may result in dismissal or quashal.
Evidence Must Be Relevant to the Facts in Issue:
- Numerous cases stress that evidence should be excluded if it does not serve to prove or disprove a fact in issue. The repeated principle is that the rules of relevancy serve to filter out factum probans that does not relate to or cannot prove the factum probandum.
Proper Presentation of Evidence:
- Courts have also underscored that while allegations in pleadings must stick to ultimate facts, the parties must bring out evidentiary facts (factum probans) during trial to avoid surprise and to comply with due process.

VII. PRACTICAL TIPS FOR LAWYERS

Drafting Pleadings
- State only the ultimate facts. Reserve the evidentiary details for trial or for the attached affidavits and documentary annexes in the required judicial affidavits or pre-trial briefs.
- Ensure each ultimate fact is concise but complete enough to inform the court and the opposing party of the precise issues.
Preparing Evidence for Trial
- Identify each ultimate fact (factum probandum) you need to prove, then systematically map out the testimonial, documentary, or object evidence (factum probans) that will establish it.
- Cross-reference each piece of evidence to a specific element of the cause of action or defense. This method guarantees clarity and coherence during presentation.
Objections
- File timely objections to evidence that is immaterial or irrelevant (i.e., evidence not tied to any factum probandum).
- Emphasize that introducing extraneous factum probans wastes judicial resources and confuses the trier of fact.
During Trial
- When examining witnesses, link the witness’s testimony clearly to the proposition you are trying to prove.
- Summaries, charts, and demonstrative evidence may help the court see the logical chain connecting the factum probans to the factum probandum.

VIII. CONCLUSION

Understanding factum probandum and factum probans is indispensable for any litigator or judge in the Philippine legal system. The distinction serves as a guiding principle from the commencement of a case (pleading stage) through trial and final judgment. By ensuring that pleadings concentrate on ultimate facts (factum probandum) and that evidentiary facts (factum probans) are introduced only to prove those ultimate facts, the legal process becomes more focused, efficient, and just.

In sum:

Factum probandum = The ultimate fact or principal proposition that needs to be established (e.g., negligence, breach of contract, guilt of the accused).
Factum probans = The pieces of evidence that prove or disprove the factum probandum (e.g., witness testimonies, documents, objects, expert opinions).

Mastering this distinction aligns with the fundamental objectives of Remedial Law: to make the rules work toward the speedy and efficient administration of justice. It also aligns with the ethical responsibility of lawyers to present only relevant, truthful evidence in the pursuit of their client’s cause.