2015 ORS § 40.135¹

Rule 311. Presumptions

Caution-flag-2-25x25
This section is amended
Effective March 14, 2016
Relating to gender neutrality in laws; creating new provisions; amending ORS 40.135 and 40.255; and declaring an emergency.

(1) The following are presumptions:

(a) A person intends the ordinary consequences of a voluntary act.

(b) A person takes ordinary care of the persons 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) A man and woman deporting themselves as husband and wife 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 persons 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]

(Rule 311)

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 assessors 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), affd 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)

Atty. Gen. 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)

Chapter 40

(Generally)

Notes of Decisions

General rule is that polygraph evidence is inadmissible in pro­ceed­ing governed by Oregon Evidence Code. State v. Brown, 297 Or 404, 687 P2d 751 (1984)

Party could introduce results of polygraph test taken by spouse for purpose of showing that response of party upon learning polygraph results was reasonable. Fromdahl and Fromdahl, 314 Or 496, 840 P2d 683 (1992)

Where state law completely precludes reliable, ma­te­ri­ally exculpatory evidence, exclusion of that evidence violates Due Process Clauses of United States Constitu­tion. State v. Cazares-Mendez, 233 Or App 310, 227 P3d 172 (2010), affd State v. Cazares-Mendez/Reyes-Sanchez, 350 Or 491, 256 P3d 104 (2011)

Oregon Evidence Code articulates min­i­mum standards of reliability that apply to many types of evidence for admissibility, including eyewitness identifica­tion evidence, and parties must employ code to address admissibility of eyewitness testimony. State v. Lawson/James, 352 Or 724, 291 P3d 673 (2012)

Law Review Cita­tions

59 OLR 43 (1980); 19 WLR 343 (1983)

Chapter 40

Evidence Code

Annota­tions are listed under the heading Under former similar statute if they predate the adop­tion of the Evidence Code, which went into effect January 1, 1982.


1 Legislative Counsel Committee, CHAPTER 40—Evidence Code, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 40, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano040.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.