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In the Civil Code of the Netherlands analogy and related legal techniques are appealed to in order to fill gaps in the Code. The Civil Code instructs courts to apply contrary-to-fact reasoning, in rewriting the facts of a case into an analogous scenario, in which, in the case of liability for animals, the ‘possessor’ is imagined to be in control of the behaviour of an animal that causes damage. This discussion is extended to other issues, showing that analogical reasoning is not, as so often assumed, a stopgap measure to repair deficiencies in legal rules, but is in fact an essential part of a paradigmatic civil code.
|Title of host publication||Analogy and exemplary reasoning in legal discourse|
|Editors||Hendrik Kapitein, Bastiaan van der Velden|
|Place of Publication||Amsterdam|
|Publisher||Amsterdam University Press|
|Publication status||Published - 1 Apr 2018|
- private law