Presumptions in Dutch Private Law (19th and 20th Centuries) Within a European Context

Abstract

The central theme of this paper is the law of presumptions. It takes the Netherlands as the starting point. The paper concentrates on two questions: (1) What is a presumption in Dutch private law? and (2) What types of presumptions can be distinguished? Since current Dutch legislation does not contain general provisions on presumptions even though such presumptions still play a role in modern Dutch private law, various Articles of the Dutch Civil Code of 1838 (abrogated in 1992) will be discussed, for example Article 1903 which lists the various means of proof that are recognized by this Code, including presumptions. Also Article 1952 which contains a definition of presumptions will be analysed. This Article makes a distinction between presumptions that are specifically regulated by statute and presumptions where this is not the case. These and related articles are analysed in the context of the European civil law tradition. One of the conclusions will be that various types of 'presumptions' should not be qualified as such since this leads to confusion and superfluous complexity.

Keywords: Presumptions, Private Law, Law of Proof, Evidence, Civil Procedure

JEL Classification: K41