The reader who has followed me up to this point will very likely take for self-evident the conclusion I shall draw regarding a certain rule of interpretation which is about the only one so far established that has any life in it.
The maxim that a particular rule is not to be extended beyond its original meaning, or is not to be used, as Jhering says, as a productive principle (or to use a brief technical expression, is not to be applied by analogy), cannot be justified if taken by itself. At least, it is not a necessary form of thinking, as is so commonly asserted. Where a rule of law is inconsistent with a number of others and it is shown by its logical nature that it is a particular rule, it may be highly probable that what we may call its sphere of attraction, or its field of projection, is correspondingly narrower; but of itself it does not follow that it may not be applied beyond the field covered by its original logical content. In accordance with our positivistic point of view, we may find the most important reason why we believe that even particular rules may be extended by analogy, in the fact that this is actually being done.
Let us look at some instances of this. Sections 367 and 456, Austrian Civil Code, provide that the purchaser of a chattel, acting in good faith, acquires the ownership or right of possession even where his vendor had no title but was a mere bailee of the real owner. This is an exception from the general principle that rights in material things are absolute, and from the maxim "nemo plus juris transferre potest quam ipse habet" (see section 442, Austrian Civil Code). These provisions do not cover a case where a pledgee bails the chattel pledged to his debtor or to a third party, and the latter sells it without giving notice of the lien. Will the bona fide purchaser be compelled to submit to the rights of the pledgor, when these afterwards come to the light? We believe that the correct answer would be in the negative, and if so we should extend the above particular provisions by analogy.152
The law relating to the jurisdiction of courts enumerates, in section 87, among special cases of local jurisdiction, "jurisdiction by residence," and provides, in cases where the owners of mines, factories, and the like have special establishments or branches away from the places where the main establishment is located, that actions referring to such branch establishments may be brought in the places where the branches are located. This provision contradicts the general rule that actions are to be brought in the place where the defendant is domiciled. It is therefore a particular rule, as is shown also by the statute itself calling such jurisdictions special. An opinion of the Supreme Court and a decree of the Ministry of Justice extend the effect of this section 87 to a case where there is but one establishment, but that located away from the domicile of the owner. In doing so, the Ministry expressly bases its view on an analogy with said section 87.
Similarly, it is an analogy with some particular rule when Unger153 and Pfaff-Hoffmann154 extend the provisions of section 726, Austrian Civil Code,155 to cases where the inheritance cannot go to the heirs because they are incapable of inheriting, or because there are no heirs.
152 This is also the view of Stubenrauch, "Kommentar," section 466, line 9. He speaks of an unavoidable analogy (or, as he also calls it, "conclusio a majori ad minus"). There are some Supreme Court decisions to the same effect (e. g. GU new series, 835), and some to the contrary.
153 "Erbrecht," Sec. 25, note 3.
154 "Kommentar," ii, p. 671.
In the case of contracts for the payment of money for goods sold, the general principle is that the vendor warrants against defects (sections 922 seq. Austrian Civil Code). There is a particular exception to this provided by the act relating to executions (section 278), in the case of sales under execution. The Supreme Court extends this exception to private sales by the direction of the court.156
With all that, we must admit, on the whole, that analogy with particular rules is employed but rarely, so that a reference to the rule of interpretation in question here usually carries conviction. The reason therefor is not, however, that this rule constitutes a necessary form of logic as is commonly claimed, but because in most cases the subjects of projection, the social forces influencing the application of the rule, such as value judgment and the like, are preponderatingly on the side of the general principle. To take an example from economic life: freedom of contract, the fundamental principle of the law of property, is adapted to the system of private initiative actually prevailing. Therefore, the dominant groups of interests insist upon and promote the regulation of all unprovided cases in accordance with this principle. Just imagine what tremendous revolution would be produced in the social fabric if the concept of usury, which forms an exception to the general rule, were to be extended from credit transactions to other business dealings, such as sales, contracts of wages, etc.157 In other words, if the courts would take it upon themselves to correct "excessive" demands in connection with contracts of this kind also. The principles of interpretation will not tolerate the bringing about of such extraordinary changes. For that reason lawyers will have to continue to make but very cautious use of analogy in connection with particular rules, and yet the prohibition of such analogies is not a logical necessity nor a law of nature tolerating no exception.158
155 The provision is to the effect that where residuary devisees or legatees decline to accept and the legal heirs or distributees renounce, the legatees are to receive the estate pro rata. This is a single specific exception to the general rule (section 760, Civil Code) regulating the escheat of the estate, and to the strict distinction to be made between legatees and residuary beneficiaries.
156 Opinion relating to Sec. 278 of the Act relating to Executions.