The Saudi Law of Evidence: Means of Proof, Digital Evidence and How to Preserve Your Evidence

The Law of Evidence: issuance and entry into force

The Law of Evidence was issued by Royal Decree No. (M/43) dated 26/5/1443H and published in the Official Gazette on 4/6/1443H (January 7, 2022). Article 129 provides that it takes effect 180 days after its publication. The law repealed Part Nine of the Law of Sharia Procedure and Part Seven of the Commercial Courts Law, making it the unified reference for the rules of evidence, with the Law of Sharia Procedure or the Commercial Courts Law applying, as the case may be, where it is silent.

Implementing instruments issued under it include the Controls of Electronic Evidentiary Procedures, the Rules Regulating Expert Affairs before the Courts, and the law's procedural manuals.

General rules worth knowing

• The claimant must prove the right claimed, and the respondent may disprove it (Article 2).
• The facts to be proven must be related to the case, material to it and admissible, and a judge may not rule based on personal knowledge.
• The burden of proof is on the claimant, and the oath is on the one who denies (Article 3).
• No particular form is required to prove an obligation unless a specific provision or an agreement between the parties requires one (Article 5).
• The parties may agree on specific rules of evidence unless they conflict with public order, and such an agreement is only valid if it is in writing (Article 6).

Means of proof under the law

The law regulates the means of proof in separate parts, most notably:

• Admission, and questioning of the parties.
• Writing, including official and ordinary documents, compelling a party to produce documents in its possession, proving their authenticity, and claims of forgery.
• Digital evidence.
• Witness testimony.
• Presumptions and the force of res judicata.
• Custom.
• The oath, including the decisive oath and the supplementary oath.
• Inspection.
• Expert evidence.

If items of evidence conflict and cannot be reconciled, the court adopts what prevails in light of the circumstances of the case; if that is not possible, it adopts none of them, and in all cases it must state its reasons in the judgment (Article 4).

When is writing required?

Article 66 requires that any transaction worth more than one hundred thousand riyals or its equivalent, or of unspecified value, be proven in writing, and that witness testimony not be accepted to prove the existence or extinction of such transactions unless an agreement or provision states otherwise. Article 67 adds cases in which testimony is not accepted even if the value does not exceed that threshold, including where the law requires writing for validity or proof, and where the testimony contradicts or goes beyond what a written document contains.

The practical takeaway is clear: important agreements should be documented in writing or digitally, and their proof should not rest on witnesses alone.

Digital evidence and its weight

Article 53 defines digital evidence as any evidence derived from data that is created, issued, delivered, stored or communicated by digital means and that can be retrieved or obtained in an understandable form. It includes digital records, digital documents, digital signatures, digital correspondence including digital mail, means of communication, and digital media (Article 54). Proof by digital evidence has the same status as proof in writing (Article 55).

Non-official digital evidence is binding on the parties to the dealing, unless proven otherwise, where it was issued under the Electronic Transactions Law or the E-Commerce Law, derived from a digital means specified in the contract in dispute, or derived from a documented or publicly available digital means (Article 57). A party claiming that such evidence is not authentic bears the burden of proving it (Article 58). Digital evidence is submitted in its original form or by any other digital means, and the court may request its content in writing where its nature allows (Article 60).

Official digital evidence has the probative force of an official document if it meets the relevant conditions, including output generated automatically by the digital systems of public entities (Article 56). If a party refuses without an acceptable excuse to provide what the court requested to verify digital evidence, that party loses the right to rely on it or it is treated as evidence against them, as the case may be (Article 61).

Practical tips for preserving evidence in commercial and labor disputes

• Specify in the contract the approved communication channels between the parties, such as email or a particular platform, since this strengthens the weight of correspondence sent through them.
• Put agreements and amendments in writing, especially where their value exceeds one hundred thousand riyals.
• Keep messages and files in their original form, and avoid relying on screenshots alone where possible.
• In commercial dealings: keep purchase orders, delivery records, invoices and signed balance confirmations.
• In employment relationships: keep the employment contract and its annexes, pay slips and transfers, attendance records, warnings and official correspondence.
• Do not edit files after a dispute arises, and record the source of each document and the date you obtained it.

The weight of each piece of evidence depends on the facts and documents of the case. In commercial disputes and labor disputes, organizing and reviewing the evidence before filing or responding to a claim is time well spent.