ORS 40.135
Rule 311. Presumptions


(1)

The following are presumptions:

(a)

A person intends the ordinary consequences of a voluntary act.

(b)

A person takes ordinary care of the person’s own concerns.

(c)

Evidence willfully suppressed would be adverse to the party suppressing it.

(d)

Money paid by one to another was due to the latter.

(e)

A thing delivered by one to another belonged to the latter.

(f)

An obligation delivered to the debtor has been paid.

(g)

A person is the owner of property from exercising acts of ownership over it or from common reputation of the ownership of the person.

(h)

A person in possession of an order on that person, for the payment of money or the delivery of a thing, has paid the money or delivered the thing accordingly.

(i)

A person acting in a public office was regularly appointed to it.

(j)

Official duty has been regularly performed.

(k)

A court, or judge acting as such, whether in this state or any other state or country, was acting in the lawful exercise of the jurisdiction of the court.

(L)

Private transactions have been fair and regular.

(m)

The ordinary course of business has been followed.

(n)

A promissory note or bill of exchange was given or indorsed for a sufficient consideration.

(o)

An indorsement of a negotiable promissory note, or bill of exchange, was made at the time and place of making the note or bill.

(p)

A writing is truly dated.

(q)

A letter duly directed and mailed was received in the regular course of the mail.

(r)

A person is the same person if the name is identical.

(s)

A person not heard from in seven years is dead.

(t)

Persons acting as copartners have entered into a contract of copartnership.

(u)

Two individuals deporting themselves as legally married to each other have entered into a lawful contract of marriage.
(v)
A child born in lawful wedlock is legitimate.

(w)

A thing once proved to exist continues as long as is usual with things of that nature.
(x)
The law has been obeyed.

(y)

An uninterrupted adverse possession of real property for 20 years or more has been held pursuant to a written conveyance.

(z)

A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to the person, when such presumption is necessary to perfect the title of the person or the person’s successor in interest.

(2)

A statute providing that a fact or a group of facts is prima facie evidence of another fact establishes a presumption within the meaning of this section. [1981 c.892 §20; 2016 c.46 §2]

Source: Section 40.135 — Rule 311. Presumptions, https://www.­oregonlegislature.­gov/bills_laws/ors/ors040.­html.

See also annotations under ORS 41.360 in permanent edition.

Notes of Decisions

Under former similar statute (ORS 41.360)

In general

In civil case when basic facts giving rise to disputable presumption are established, presumption binds trier of fact if there is no opposing evidence, but if there is, trier must weigh evidence, giving presumption value of evidence, and determine upon which side evidence preponderates. Wright v. SAIF, 289 Or 323, 613 P2d 755 (1980)

Consequences intended

Presumption that consequences of act were intended is inappropriate where intent is element of criminal act. State v. Bartolon, 8 Or App 538, 495 P2d 772 (1972)

When criminal prosecution is initiated, state is entitled to rely on presumptions that defendant is sane and intended ordinary consequences of acts. State v. Keys, 25 Or App 15, 548 P2d 205 (1976)

Ownership of property

Criminal defendant may rely on ownership presumption to establish expectation of privacy necessary to challenge search. State v. Statham, 55 Or App 646, 639 P2d 684 (1982)

Performance of official duty

Statutory presumption that tax assessor has faithfully performed assessor’s procedural duty does not extend to valuation assessor places on property. J.R. Widmer, Inc. v. Dept. of Rev., 261 Or 371, 494 P2d 854 (1972)

Condition precedent to presumption that official duty has been regularly performed is that circumstances of particular case add some element of probability. Nyman v. City of Eugene, 286 Or 47, 593 P2d 515 (1979)

Identity of name

Court may declare nonidentity as matter of law only if proof of nonidentity is so conclusive that reasonable minds could not dispute matter. Lynd v. Rockwell Mfg., 276 Or 341, 554 P2d 1000 (1976)

Literal identity of names is necessary to trigger presumption of identity of persons so as to present prima facie case, and mere similarity of names, without additional corroborating evidence, will not support finding of identity of persons. State v. Garrett, 281 Or 281, 574 P2d 639 (1978)

Contract of marriage

Burden is on party challenging the marriage to disprove, by most cogent and satisfactory evidence, validity of marriage. Franklin v. Biggs, 14 Or App 450, 513 P2d 1216 (1973), Sup Ct review denied

Presumption will not be overcome by failure to produce valid marriage certificate. Franklin v. Biggs, 14 Or App 450, 513 P2d 1216 (1973), Sup Ct review denied

Continuing existence

Presumption that “thing once proved to exist continues as long as is usual with things of that nature” applies only to factual condition established in prior adjudication, and defendant, who had been previously committed as “mentally ill,” was not entitled to instruction on presumption phrased in terms of insanity. State v. Weller, 285 Or 457, 591 P2d 732 (1979)

Where event is of easily terminable nature, presumption cannot support finding beyond reasonable doubt that event has continued. State v. Harris, 288 Or 703, 609 P2d 798 (1980)

Under Evidence Code

Presumption that person not heard from in seven years is dead does not prohibit presuming death of person missing for shorter period of time. State v. Lerch, 63 Or App 707, 666 P2d 840 (1983), aff’d 296 Or 377, 677 P2d 678 (1984)

Where mother and husband were not married at time child was born, born-in-wedlock presumptions cannot apply. Dept. of Human Resources v. Mock, 83 Or App 1, 730 P2d 553 (1986), Sup Ct review denied

Presumption that writing is truly dated does not raise presumption that writing was mailed on same day as written. SAIF v. Tull, 113 Or App 449, 832 P2d 1271 (1992)

COMPLETED CITATIONS (for ORS 41.360 in permanent edition): Williamson v. State Acc. Ins. Fund, 6 Or App 95, 487 P2d 110 (1971)

Attorney General Opinions

Under former similar statute (ORS 41.360)

Statutory presumption that permit is issued in accordance with prescribed standards as rebuttable, (1971) Vol 35, p 844

Law Review Citations

Under Evidence Code

19 WLR 374 (1983); 62 OLR 493 (1983)

40.010
Rule 100. Short title
40.015
Rule 101. Applicability of Oregon Evidence Code
40.020
Rule 102. Purpose and construction
40.025
Rule 103. Rulings on evidence
40.030
Rule 104. Preliminary questions
40.035
Rule 105. Limited admissibility
40.040
Rule 106. When part of transaction proved, whole admissible
40.060
Rule 201(a). Scope
40.065
Rule 201(b). Kinds of facts
40.070
Rules 201(c) and 201(d). When mandatory or discretionary
40.075
Rule 201(e). Opportunity to be heard
40.080
Rule 201(f). Time of taking notice
40.085
Rule 201(g). Instructing the jury
40.090
Rule 202. Law that is judicially noticed
40.105
Rule 305. Allocation of the burden of persuasion
40.110
Rule 306. Instructions on the burden of persuasion
40.115
Rule 307. Allocation of the burden of producing evidence
40.120
Rule 308. Presumptions in civil proceedings
40.125
Rule 309. Presumptions in criminal proceedings
40.130
Rule 310. Conflicting presumptions
40.135
Rule 311. Presumptions
40.150
Rule 401. Definition of “relevant evidence.”
40.155
Rule 402. Relevant evidence generally admissible
40.160
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion or undue delay
40.170
Rule 404. Character evidence
40.172
Rule 404-1. Pattern, practice or history of abuse
40.175
Rule 405. Methods of proving character
40.180
Rule 406. Habit
40.185
Rule 407. Subsequent remedial measures
40.190
Rule 408. Compromise and offers to compromise
40.195
Rule 409. Payment of medical and similar expenses
40.200
Rule 410. Withdrawn plea or statement not admissible
40.205
Rule 411. Liability insurance
40.210
Rule 412. Sex offense cases
40.211
Rule 412-1. Evidence not admissible in civil proceeding involving sexual misconduct
40.215
Rule 413. Measures and assessments intended to minimize impact of or plan for natural disaster
40.225
Rule 503. Lawyer-client privilege
40.227
Rule 503-1. Right of client to communicate with lawyer
40.230
Rule 504. Psychotherapist-patient privilege
40.235
Rule 504-1. Physician-patient privilege
40.240
Rule 504-2. Nurse-patient privilege
40.245
Rule 504-3. School employee-student privilege
40.250
Rule 504-4. Regulated social worker-client privilege
40.252
Rule 504-5. Communications revealing intent to commit certain crimes
40.255
Rule 505. Spousal privilege
40.260
Rule 506. Member of clergy-penitent privilege
40.262
Rule 507. Counselor-client privilege
40.264
Rule 507-1. Certified advocate-victim privilege
40.265
Rule 508a. Stenographer-employer privilege
40.270
Rule 509. Public officer privilege
40.272
Rule 509-1. Sign language interpreter privilege
40.273
Rule 509-2. Non-English-speaking person-interpreter privilege
40.274
Rule 509-3. Legislative branch offsite process counselor privilege
40.275
Rule 510. Identity of informer
40.280
Rule 511. Waiver of privilege by voluntary disclosure
40.285
Rule 512. Privileged matter disclosed under compulsion or without opportunity to claim privilege
40.290
Rule 513. Comment upon or inference from claim of privilege
40.295
Rule 514. Effect on existing privileges
40.310
Rule 601. General rule of competency
40.315
Rule 602. Lack of personal knowledge
40.320
Rule 603. Oath or affirmation
40.325
Rule 604. Interpreters
40.330
Rule 605. Competency of judge as witness
40.335
Rule 606. Competency of juror as witness
40.345
Rule 607. Who may impeach
40.350
Rule 608. Evidence of character and conduct of witness
40.355
Rule 609. Impeachment by evidence of conviction of crime
40.360
Rule 609-1. Impeachment for bias or interest
40.365
Rule 610. Religious beliefs or opinions
40.370
Rule 611. Mode and order of interrogation and presentation
40.375
Rule 612. Writing used to refresh memory
40.380
Rule 613. Prior statements of witnesses
40.385
Rule 615. Exclusion of witnesses
40.405
Rule 701. Opinion testimony by lay witnesses
40.410
Rule 702. Testimony by experts
40.415
Rule 703. Bases of opinion testimony by experts
40.420
Rule 704. Opinion on ultimate issue
40.425
Rule 705. Disclosure of fact or data underlying expert opinion
40.430
Rule 706. Impeachment of expert witness by learned treatise
40.450
Rule 801. Definitions for ORS 40.450 to 40.475
40.455
Rule 802. Hearsay rule
40.460
Rule 803. Hearsay exceptions
40.465
Rule 804. Hearsay exceptions when the declarant is unavailable
40.470
Rule 805. Hearsay within hearsay
40.475
Rule 806. Attacking and supporting credibility of declarant
40.505
Rule 901. Requirement of authentication or identification
40.510
Rule 902. Self-authentication
40.515
Rule 903. Subscribing witness’ testimony unnecessary
40.550
Rule 1001. Definitions for ORS 40.550 to 40.585
40.555
Rule 1002. Requirement of original
40.560
Rule 1003. Admissibility of duplicates
40.562
Rule 1003-1. Admissibility of reproduction
40.565
Rule 1004. Admissibility of other evidence of contents
40.570
Rule 1005. Public records
40.575
Rule 1006. Summaries
40.580
Rule 1007. Testimony or written admission of party
40.585
Rule 1008. Functions of court and jury
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