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Wolff, Lutz-Christian --- "Structured Problem Solving: German Methodology from a Comparative Perspective" [2003] LegEdRev 3; (2003) 14(1) Legal Education Review 19

[*] This paper was finalised in March 2003. I would like to thank Marlene Le Brun, Professor Dr Ulrich Manthe and Professor Dr Peter Gröschler for very helpful discussions and valuable comments on the draft.

[**] Dr habil, Privatdozent, Rechtsanwalt (Frankfurt a M), Associate Professor at the School of Law of City University of Hong Kong.

[1] The term “private law” means the law governing the (civil) relationships among individuals, associations and corporations excluding criminal law, administrative law and constitutional law.

[2] B Groβfeld, “Examensvorbereitung und Jurisprudenz” (“Preparations for Examinations and Jurisprudence”) (1992) JZ 22 at 25. “Substantive law” is used to describe the law that lays down people’s rights, duties, liberties and powers, excluding adjectival law which relates to the enforcement of rights and duties, in particular the law of procedure and evidence: G Williams, Learning the Law (12th ed, London: Sweet & Maxwell, 2002), pp 28-31.

[3] “Civil Law” should be understood as the Roman law-influenced continental-European legal systems: C Graf von Bernstorff, Einführung in das englische Recht (Introduction to English Law) (2nd ed, München: Verlag C H Beck, 2000), p 6; W Tetley, “Mixed Jurisdictions: Common Law v Civil Law (Codified and Uncodified)” (1999) 60 La L Rev 677 at 683.

[4] “Common Law” means the English law applied in the Commonwealth-countries and the USA: Graf von Bernstorff, note 3, pp 1, 6; Tetley, note 3, at 3. The phrase “Common Law”, however, has many meanings. It is, eg, also used for all the laws made by judges relating to the whole of the United Kingdom: R Pound, The History and System of the Common Law (New York: P F Collier, 1939) (referred to as Pound History), pp 22-23. See also S Hanson, Legal Method (London/Sydney: Cavendish, 1999) p 34; or law applicable to the whole of England as opposed to local law: Williams, note 2, pp 23-24.

[5] M Costanzo, Problem Solving (London: Cavendish, 1995); R Krever, Mastering Law Studies and Law Exam Techniques (Sydney: Butterworths, 1989), pp 78-85; H McVea, P Cumper, Learning Exam Skills (London: Blackstone Press, 1996), p 4; R Clark, Legal Skills and System Textbook (London: HLT Publications, 1996), p 21; P H Kenny, Studying Law (London: Butterworths 1985), p 89; A Bradney et al, How to Study Law (London: Sweet & Maxwell, 1995), p 101; B Brody, Write the “A” Law Exam Answer (Calif: Barpassers, 1988), p 9.

[6] B Wörlein, Anleitung zur Lösung von Zivilrechtsfällen (Guideline for the Solving of Civil Law Cases) (5th ed, Köln et al: Carl Heymanns Verlag KG, 1998), pp 6-7.

[7] As opposed to public law/criminal law-methodology.

[8] For the term “substantive law”, see note 2.

[9] A definition of “legal system” is provided by Tetley, note 3, at 3: “… the term ‘legal system’ refers to the nature and content of the law generally, and the structures and methods whereby it is legislated upon, adjudicated upon and administered, within a given jurisdiction.”

[10] IRAC stands for Issue, Rule, Analysis, Conclusion. The IRAC approach is discussed below in the section on “Structured Problem Solving in Common Law jurisdictions – General”.

[11] Pound History, note 4, p 24; R Pound, “What is the Common Law?” in The Future of Common Law (1937, reprint Gloucester, Mass: P Smith, 1965) (referred to as Pound Future), p 18; K Zweigert, H Kötz, Introduction to Comparative Law (3rd ed, Oxford: Clarendon Press, 1998), p 258; U Mattei, Comparative Law and Economics (Ann Arbor: University of Michigan Press, 1997), p 71.

[12] Pound Future, note 11, pp 18-19. D Sugarman, “Legal Theory, the Common Law Mind and the Making of the Textbook Tradition”, in W Twining (ed), Legal Theory and Common Law (Oxford: Bast Blackwell, 1984), p 26. For the differences between Civil Law and Common Law, see Tetley, note 3, at 12-15; B Markesinis, “Reading Through a Foreign Judgement”, in P Cane and J Stapleton (eds), The Law of Obligations (Oxford: Clarendon Press; New York: Oxford University Press, 1998), pp 266-68; B Markesinis, “Judicial Style and Judicial Reasoning in England and Germany” (2000) Cambridge Law Journal 59(2) 294; Post, “Stare Decisis: The Use of Precedence” in J Arthur/WH Shaw, Readings in the Philosophy of Law (2nd ed, Englewood Cliffs, NJ: Prentice Hall, 1993), p 19; Pound History, note 4, pp 57-62; R Pound, The Spirit of the Common Law (Francetown, NH: Marshall Jones, 1921) (referred to as Pound Spirit), pp 181-82; Pound Future, note 11, p 14; Stone, “The Common Law in the United States” in The Future of the Common Law, note 11, p 120; R Zimmermann, N Jansen, “Quieta Movere: Interpretative Change in a Codified System” in Cane and Stapleton (above), p 286; Zweigert, Kötz, note 11, pp 258-59, 261-71; Mattei, note 11, p 78.

[13] Germany’s most basic private law authority is the German Civil Code, which has been in force since 1 January 1900. Tetley, note 3, at 6, describes the German Civil Code from the point of view of the French Civil Code of 1804 as “more academic and technical and its rules more precise than those of the French Code”.

[14] Groβfeld, note 2, at 23.

[15] D Medicus, Bürgerliches Recht (Civil Law), (17th ed, Köln et al: Carl Heymanns Verlag KG, 1996) (referred to as Medicus 1996); also see D Medicus’ article, “Anspruch und Einrede als Rückgrat einer zivilistischen Lehrmethode” (Claim and Defense as Backbone of a Civilistic Teaching Method) (1974) AcP (174) 313 (referred to as Medicus AcP).

[16] N G Foster, German Legal System & Law (2nd ed, London: Blackstone Press, 1996), p 87; J Schapp, “Das Zivilrecht als Anspruchssystem?” (The Civil Law as a Claim System?) (1992) JuS 537 at 538.

[17] J Braun, Der Zivilrechtsfall (The Civil Law Case) (München: C H Beck, 2000), p 17; Medicus AcP, note 15, pp 316-17, calls this method the “logical method” as opposed to the “historical method” used in former times.

[18] Groβfeld, note 2, at 23; A Früh, “Die Anspruchsprüfung im Zivilrecht” (The Claim Analysis in the Civil Law) (1991) JuS 656 at 657 and 742.

[19] In case of non-forensic work the question would be: Who may Want What from Whom?

[20] Medicus 1996, note 15, p 4; Medicus AcP, note 15, at 324-25.

[21] Medicus 1996, note 15, p 4.

[22] For example: (1) A against B; and (2) A against C.

[23] Medicus 1996, note 15, p 4.

[24] Medicus 1996, note 15, p 3.

[25] Medicus 1996, note 15, p 2; Wörlein, note 6, p 7.

[26] The identification of a potential basis for a claim seems to be the most difficult part of the process of solving a dispute: Medicus 1996, note 15, p 2.

[27] Braun, note 17, p 23.

[28] For example, it would be wrong to analyse if A has validly represented B without having identified the claim relationship and the potential basis of a claim for which A’s representation of B would be a precondition. Only if there is a (actual or potential) claim relationship will the question of agency be of relevance and only if a legal rule can be identified which supports such claim will it make sense to analyse agency-related questions.

[29] Braun, note 17, p 33.

[30] See, eg, Art 189 of the German Civil Code: “Half a year means a limitation of six months, a quarter of a year a limitation of three months, half a month a limitation of fifteen days.”

[31] See, eg, Art 194 para 1 of the German Civil Code: “The right to demand from another an act or an omission (claim) is subject to limitation.”

[32] Früh, note 18, at 658. Some provisions of statutory German civil law, which can be considered as the basis of a claim, are the following:

Art 433 of the German Civil Code: “By a sale contract, the seller of a thing is obliged to deliver and transfer title in the thing to the buyer ... The buyer is obliged to pay to the seller the agreed purchase price and to accept the bought thing.”

Art 823 para 1 of the German Civil Code: “One, who designedly or negligently injures life, body, health, freedom, the property or any right of another is bound to indemnify the other for the injury arising therefrom.”

Art 985 of the German Civil Code: “The owner may demand from the possessor the delivery of the thing.”

[33] For a comparison from the US-perspective, see R K Neumann, Legal Reasoning and Legal Writing (4th ed, Gaithersburg: Aspen Law & Business 2001), p 16.

[34] Medicus 1996, note 15, p 2; Früh, note 18, at 742. For example, if an owner (as claimant) wants the thief to return stolen goods on the basis of ownership, then the legal basis of his claim could be Art 985 of the German Civil Code, which reads as follows: “The owner may demand from the possessor the delivery of the thing.”

[35] Medicus 1996, note 15, p 8; Braun, note 17, p 26.

[36] Braun, note 17, p 28; Medicus 1996, note 15, p 5; critical Groβfeld, note 2, at 26; Schapp, note 16, at 538.

[37] Medicus, note 15, p 5; Groβfeld, note 2, at 26 with reference to Art 1134 of the French Civil Code, which reads as follows: “Les Conventions légalement formée tiennent lieu de loi à ceux qui les ont faites.”

[38] Braun, note 17, p 24; Früh, note 18, at 742.

[39] For example, Art 985 of the German Civil Code (note 36) requires the fulfilment of the following preconditions: (1) ownership of the claimant; and (2) possession of the defendant. In addition, it would have to be checked if the defendant/possessor has “a right to possess”: Art 986 of the German Civil Code; from the viewpoint of legal reasoning under American Law, compare Neumann, note 33, p 18.

[40] Anything that does not constitute a precondition of the claim is not to be mentioned: Braun, note 17, p 24.

[41] Früh, note 18, at 745; N L Schultz and L J Sirico, Legal Writing and Other Lawyering Skills (3rd ed, New York: M Bender, 1998), p 41: “A legal argument is meaningless unless you apply the relevant authority directly to the facts of your case.”

[42] After having discussed the establishment of the claim in Steps 2 and 3, the remaining sections deal with possible defences in favor of the defendant. German legal theory distinguishes between two types of defences (replications): “Einreden” and “Einwendungen”. Some confusion exists as to what the difference between these two categories is. As P Gröschler, in “Zur Wirkungsweise und zur Frage der Geltendmachung von Einrede und Einwendung im materiellen Zivilrecht” (On the Effects and the Question of the Raising of “Einrede” and “Einwendung” in substantive Civil Law) (2001) AcP 48, has recently pointed out, a sensible distinction can be made as follows: “Einwendung” means a replication which hinders the establishment of a claim or its continuing existence; “Einrede(n)” means those replications which do not affect the existence of a claim, but hinder its enforcement ipso iure or upon being raised by the defendant as determined by the law.

[43] Compare Früh, note 18, at 743.

[44] Compare Früh, note 18, at 743.

[45] The step-by-step method only deals with the application of substantive law. Therefore, issues from the point of view of procedural law are not to be discussed in this context.

[46] Otherwise it would have to be examined in Step 2 or Step 3.

[47] For example, the seller claims payment of the purchase price, but has not delivered the sold commodity yet as stipulated in the purchase agreement.

[48] See, eg, Art 320 of the German Civil Code: “A party which is bound under a reciprocal contract may refuse performance due from him until the counter-performance is effected. If the performance is to be rendered to several parties, the part coming to any one may be withheld, until the entire counter-performance is rendered. The provision of Art 273 para 3 has no application. If one party has partially performed, the counter-performance cannot be refused if under the circumstances, particularly in view of the proportionate insignificance of the part in arrear, the refusal would be in violation of good faith.”

[49] Braun, note 17, p 14: “Questions of style, however, are normally questions of substance.”

[50] Wörlein, note 6, p 8; for the Common Law, see Kenny, note 5, p 90.

[51] Language that would correspond with the above sequence of examination could, eg, read as follows: “A could have a claim against B for the payment of a purchase price of US$300 based on a contract concluded between both parties. Precondition would be that A and B have as a matter of fact concluded a contract according to which B is obliged to pay the purchase price of US$300. A has offered to enter into such a contract. B has accepted this offer. Therefore A and B have concluded a contract. A’s claim against B has therefore been validly established. B has not yet paid the purchase price, for which reason the claim has not been extinguished. Since the contract was concluded only four months ago A’s claim is not time-barred. To conclude, A has a claim against B for the payment of US$300 as purchase price.” On the other hand, the following wording would not appropriately reflect the work-order suggested by the step-by-step method: “A has a claim against B because A and B have concluded a contract according to which B has to pay the purchase price of US$300, which was not paid yet, and the claim is not time-barred.”

[52] Früh, note 18, at 747. Braun, note 17, p 17, explains the mainly historical reasons in the following terms. Until 1918 judgments in Germany were rendered in the name of the monarch. It would not have been in line with the sovereign authority of the monarch if a judgment had left the impression that there were any doubts regarding the outcome. This “authoritarian style” has been maintained for judgments until today. For French-inspired legal systems, see Tetley, note 3, at 13; cf, from the perspective of US-American legal writing, Schultz and Sirico, note 41, p 40: “When writing your argument with deductive analysis, always state your conclusion first, because readers of legal writing do not want to be left waiting in suspense for the conclusion.”

[53] This identification of the claim relationships is only meant to help to understand the facts and the questions to be answered and would normally not show up in any written analysis of the dispute.

[54] This dispute does not require the discussion of any procedural question.

[55] Article 433, para 2 of the German Civil Code: “The purchaser is obliged to pay to the seller the agreed purchase price and to take the purchased thing.” German private law theory acknowledges the right of the parties to a contract to claim specific performance on the basis of such a contract.

[56] Article 398 of the German Civil Code: “A claim may be assigned by the creditor by agreement with another person to the latter (cession). From the conclusion of the agreement the new creditor (assignee) takes the places of the former creditor.”

[57] Step 5 was to be left out because the analysis in Step 4 had revealed that A had no claim against B.

[58] See above, Step 1(b) of the Model Solution.

[59] See above, Step 1(c) of the Model Solution.

[60] Article 320 sentence 1 of the German Civil Code: “A party which is bound under a reciprocal contract may refuse performance due from him until the counter-performance is effected. If the performance is to be rendered to several parties, the part coming to any one may be withheld, until the entire counter-performance is rendered. The provision of Art 273 para 3 has no application. If one party has partially performed, the counter-performance cannot be refused if under the circumstances, particularly in view of the proportionate insignificance of the part in arrear, the refusal would be in violation of good faith.”

[61] Article 433 para 1 of the German Civil Code. For the transfer of ownership of a movable thing, in general it is necessary that the owner delivers it to the purchaser and that both agree that the ownership be transferred: Article 929 sentence 1 of the German Civil Code. Possession of a thing is generally acquired by obtaining actual control of the thing: Art 854 para 1 of the German Civil Code.

[62] Schapp, note16, at 538, suggests that the fact that German legal scholars have widely ignored dispute solving methods as a topic of research may be caused by the fact that dispute solving methods (techniques) are regarded as belonging to legal practice rather than to legal science.

[63] Braun, note 17, p 38 (“plea and counter-plea”); Medicus AcP, note 15, pp 326, 331.

[64] It is for this reason that aspects of fairness and justice do not need to be discussed in this context.

[65] In this context efficiency is to be understood as the characterisation of a particular work procedure (in this case the method of solving private law problems), which keeps the input of resources (time, labour, money) as low as possible.

[66] Medicus 1996, note 15, p 4; Früh, note 18, at 742; L Bolman, in C L Cooper and C D Alderfer (eds), Advances in Experimental Social Processes (Chichester: Wiley 1978) Vol 1, pp 114-15. This optimisation of a specific work (ie dispute solving) process is not directly connected to the transfer of property rights, for which reason questions that are discussed in connection with the so-called “Economic Analysis of Law” in Zweigert and Kötz, note 11, p 249, are of no relevance in the context of this article.

[67] Medicus AcP, note 15, p 326.

[68] See above, 2.2(1)[AQ please confirm this reference].

[69] Großfeld, note 2, at 25; for a critique of similar arguments raised during the time of Nazi Germany, see Medicus AcP, note 15, p 322.

[70] U Manthe, “Bürgerliches Recht und Bürgerliches Gesetzbuch in der Volksrepublik China” (Civil Law and Civil Code in the People’s Republic of China) (1987) 28 Jahrbuch für Ostrecht 11 at 21; I Markovits, “Socialism and the Rule of Law: Some Speculations and Predictions” in D S Clark (ed), Comparative and Private International Law: Essays in Honor of John Henry Merryman on his Seventieth Birthday (Berlin: Duncker & Humblodt, 1990), p 205.

[71] See Pound History, note 4, p 163; S Riesenfeld, “The Impact of German Legal Ideas and Institutions on Legal Thought and Institutions in the United States” in M Reimann (ed), The Reception of Continental Ideas in the Common Law World 1820-1920 (Berlin: Duncker & Humblodt, 1993), p 94.

[72] This viewpoint is based on the so-called “jurisprudence of interests” (“Interessenjurisprudenz”), which has mainly been developed in Germany in the second decade of the 20th century, in particular by Philip Heck. For similar developments in the United States, see, eg, Pound History, note 4, pp 162-76; Pound Spirit, note 12, pp 91-93, 204; see also Riesenfeld, note 71, pp 94-96; A Altman, Arguing About Law (2nd ed, Belmont, CA: Wadsworth/Thomson Learning, 2001), pp 111-13; S P Sinha, Jurisprudence (St Paul, Minn: West Pub, 1993), pp 232-34. In Germany the jurisprudence of interests has later been further developed into the so-called jurisprudence of evaluation (“Wertungsjurisprudenz”) by pointing out that the identification of contradicting interests alone does not suffice (see Sinha, above, p 244), but that also those criteria need to be identified which are determining why one interest is given priority over the other: W Fikentscher, Methoden des Rechts in vergleichender Darstellung III (Methods of the Law Explained Comparatively) (Tübingen: Mohr Siebeck, 1975-77), pp 383-89; F Bydlinski, Juristische Methodenlehre und Rechtsbegriff (Legal Methods and Legal Metaphores) (Wien, New York: Verlag Springer, 1982), pp 123-25.

[73] Schapp, note 16, at 538.

[74] Schapp, note 16, at 538; Medicus 1996, note 15, p 1.

[75] Medicus AcP, note 15, p 317.

[76] Groβfeld, note 2, at 25; Medicus AcP, note 15, p 322.

[77] Schapp, note 16, at 538.

[78] Groβfeld, note 2, at 25; G E Frug, “A Critical Theory of Law” (1989) Legal Education Review (No 1) 43.

[79] For the area of legal education from the Chinese perspective, Wang Liming, Hetongfa yinan anli yanjiu (Research on tricky contract law cases) (Beijing: Zhongguo renmin daxue chubanshe, 1997) (referred to as Wang Liming 1997), p 4.

[80] Groβfeld, note 2, at 25.

[81] Braun, note 17, p 17: “There is no better way to challenge one’s own prejudices …”

[82] Medicus AcP, note 15, pp 321, 331.

[83] Compare the section on “Methodological Benchmarking” above.

[84] Braun, note 17, p 38.

[85] For the significance of the selection of legal systems in comparative legal research, see M Oderkerk, “The Importance of Context: Selecting Legal Systems in Comparative Legal Research” (2001) NILR XLVIII 293.

[86] Mainland China stands for the People’s Republic of China excluding the Hong Kong SAR, the Macau SAR and Taiwan. The legal systems of the latter are different from the legal system of mainland China.

[87] For comparative purposes for the election of legal systems on the basis of factors related to the researcher personally, see Oderkerk, note 85, at 305.

[88] See above, “Introduction – General” (text accompanying note 3).

[89] The mainland Chinese legal system is not a case law-based system, Wang Liming, 1997, note 79, p 2; Wang Zhaoneng (ed), Shiyong falu anli pingdian – minshiquan (Commentary on practical law cases – civil law) (Nanning: Guangxi renmin chubanshe, 2001), p 1; Qiao Xianzhi (ed), 2000 Shanghai fayuan anli jingxuan (2000 – Selected cases of Shanghainese courts) (Shanghai: Renmin chubanshe, 2000), p 2 (“cases are used to supplement the legislation and the accumulation of the experience provides material for future legislative work”). One might therefore argue that the Chinese legal system belongs to the Civil Law legal family: see L C Wolff and B Ling, “The Risk of Mixed Laws: The Example of Indirect Agency under Chinese Contract Law” (2002) 15(2) Columbia Journal of Asian Law 173 at 176. For comparative law purposes, however, the question of the sources of law is of minor importance: Zweigert and Kötz, note 11, p 71.

[90] Costanzo, note 5, p 51.

[91] Compare, however, Neumann, note 33, p 16, whose explanation of the “inner structure of a rule” comes close to the concept of the step-by-step method: “Every rule has three separate components: (1) a set of elements, collectively called a test; (2) a result that occurs when all the elements are present …; and (3) what … could be called a causal term that determines whether the result is mandatory, prohibitory, or discretionary … Additionally, many rules have (4) one or more exceptions that, if present would defeat the result, even if all the elements are present.”

[92] Constanzo, note 5; Krever, note 5; McVea and Cumper, note 5; Clark, note 5, pp 21-22; Bradney et al, note 5, pp 99-105; Kenny, note 5, pp 88-99.

[93] A more systematic approach is taken by P A Jones, Lawyers’ Skills (7th ed, London: Blackstone 2000), pp 5-26, with focus, however, on practical aspects of problem solving such as identifying and classifying information and the use of solutions to gather evidence.

[94] M M Asprey, Plain Language for Lawyers (2nd ed, Leichhardt: Federation Press, 1996); M Chartrand, C Millar and E Wiltshire, English for Contract and Company Law (London: Sweet & Maxwell, 1997); M Fox and C Bell, Learning Legal Skills (3rd ed, London: Blackstone, 1999); M Hyam, Advocacy Skills (4th ed, London: Blackstone Press 1999); R H Mookin, S R Peppert and A S Tulumello, Beyond Winning (Cambridge, Mass: Belknap Press of Harvard University Press, 2000); A Sherr, Client Care for Lawyers (2nd ed, London: Sweet & Maxwell, 1999); C Maughan and J Webb, Lawyering Skills and Legal Process (London: Butterworths, 1995).

[95] A Aarnio, D N MacCormick (eds), Legal Reasoning (Aldershot: Dartmouth, 1992), Vols I and II; E H Levi, An Introduction to Legal Reasoning (Chicago: Chicago University Press, 1961); A Peczenik, On Law and Reason (Dordrecht: Kluwer Academic, 1989); Neumann, note 33, pp 15-26.

[96] http://law.slu.edu/academic_support/irac.html (last visited 30 March 2004); Rohr, “How to Take a Law School Exam”, http://nsulaw.nova.edu/stuprograms/arp/documents/examtake.pdf (last visited 30 March 2004) (referred to as nsulaw), IVA; http://lexopolis.com/library/handouts/irac_lexis.pdf (last visited 30 March 2004) (referred to as lexopolis), p 1; Neumann, note 33, p 265.

[97] “What is the governing law for the issue?”: see Neumann, note 33, p 265; nsulaw, note 96, at IVB; lexopolis, note 96, p 1.

[98] “Does the rule apply to these unique facts?”: see Neumann, note 33, p 265; nsulaw, note 96, at IVC; lexopolis, note 96, p 2.

[99] Neumann, note 33, p 265; nsulaw, note 96, at IVF; lexopolis, note 96, p 2. For a similar approach from the perspective of legal writing, see Schultz and Sirico, note 41, pp 43-65.

[100] A B Yelin, The Legal Research and Writing Handbook: A Basic Approach for Paralegals (Boston: Little Brown, 1996), p 381. Models similar to IRAC are used by other law schools. For example, Bond Law School uses “MIRAT” which stands for: (M)aterials/missing facts; (I)ssue(s); (R)ule (principle of law/research); (A)pplication/argument; (T)entative solution. Queensland University of Technology uses “ISAACS”, which stands for: (I)dentify a legal issue arising from the facts; (S)tate the relevant law and the (A)uthority for it; (A)pply the law to the facts; (C)ome to a conclusion on that issue, then repeat the above steps for another issue; (S)ynthesise the practical conclusion into an overall conclusion: H Ward, “The Adequacy of their Attention” (2000) LER 1 at 26.

[101] In addition, many legal writers seem to regard IRAC only as a device to structure answers to exam questions; cf Neumann, note 33, p 265; http://law.slu.edu/academic_support/irac.html (last visited 30 March 2004); lexopolis, note 96, p 3; different Brown, “Problem Solving and Advocacy: Two Separate Skills”, http://law.gonzaga.edu/ilst/Newsletters/Fall00/brown.htm (last visited 30 March 2004), para 6. This limitation does not apply with regard to the step-by-step method, as explained above in “Introduction – General” (text following note 1) and “The Claim Approach” (text following note 68).

[102] Compare Neumann, note 33, p 265 (“several IRAC-structured discussions”); Brown, note 101, para 5: “By proceeding methodically through IRAC, a student can solve even the most difficult legal problem.”

[103] IRAC is meant to be used for the application of legal rules in any area of law, such as the law of contracts, law of civil procedure, criminal law and torts law.

[104] Compare Hanson, note 4, p 21. For the rather minimal significance of the sources of law for comparative purposes, see note 87.

[105] United Nations Convention on the International Sales of Goods: accessed online, eg, at www.cisg.law.pace.edu (last visited 30 March 2004).

[106] Zweigert and Kötz, note 11, pp 258-59; Pound Future, note 11, pp 18-19.

[107] Foster, note 16, p 85; Markesinis, in Cane and Stapleton, note 12, pp 271-74.

[108] Zweigert and Kötz, note 11, p 269.

[109] Levi, note 95.

[110] Markensinis, in Cane and Stapleton, note 12, p 271.

[111] Zweigert and Kötz, note 11, p 271.

[112] J Martin, Hanburg and Martin – Modern Equity (16th ed, London: Sweet & Maxwell, 2001), pp 3-46; L B Solum, “Equity and the Rule of Law” in I Shapiro (ed), The Rule of Law (New York: New York University Press, 1994), p 123.

[113] Kötz, in Cane and Stapleton, note 12, p 243; Zimmermann, note 12, pp 169-77; R Zimmermann and S Whittaker, Good Faith in European Contract Law (Cambridge, UK; New York: Cambridge University Press, 2000).

[114] J P Thorens, “The Common Law Trust and the Civil Law Lawyer” in Clark, note 70, p 309; Zimmermann, note 12, pp 163-66; D J Heyton, S Kortmann and H Verhagen (eds), Principles of European Trust Law (The Hague: Kluver Law International; Deventer: The Netherlands: W.E.J. Tjeenk Willink, 1999), pp 3-8.

[115] For the relationship between the form of presentation and the step-by-step method, cf above the section on “Language” (text following note 49); from a practical point of view, see Zimmermann, note 12, pp 177-82.

[116] Solum, note 112, passim and p 139: “Moral and legal vision is required in order to reveal that a case is governed by a rule. For this reason, both the application of legal rules and the practice of equity require the virtue of judicial wisdom … This insight allows us to see how the practice of equity may actually reinforce, rather than undermine, the values of predictability and regularity that support the ideal of the rule of law.” Compare also D Higham, “Does Justice Play Dice? Can Lawyers Predict the Chances of Success in Litigation?” (2003) 12(1) Nottingham Law Journal at 20-26. See also B Thompson, Constitutional and Administrative Law (3rd ed, London: Blackstone Press, 1993), p 67: “the basic idea of the rule of law is that not only should law be obeyed, but that the law should be such that people will be able to be guided by it.” See further, D W Kahn, The Cultural Study of Law (Chicago: Chicago University Press, 1999), p 117: “law’s rule is never at stake in the outcome of a particular case … The rule of law establishes the domain of possible outcomes.” And see M A Eisenberg, The Nature of the Common Law (Cambridge, Mass: Harvard University Press, 1988), pp 10-12.

[117] Based on related law enacted by the different German states: Foster, note 16, pp 81, 84.

[118] Foster, note 16, pp 84-85; more generally, see J H Merryman, The Loneliness of the Comparative Lawyer (The Hague; Boston: Kluwer International Law, 1999), pp 61-63; Leith, “Legal Education in Germany: Becoming a Lawyer, Judge, and Professor”, www.ncl.ac.uk/~nlawwww/articles4/leith4.html (last visited 30 March 2004) text following footnote reference 43: “the differences in the general flavour in German law schools is striking”. See also Crossley, “Legal Education in England”, www.jura.uni-sb.de/english/London/crossle.html (last visited 30 March 2004).

[119] Neumann, note 33, p 263: “a teacher reads your exam answers to decide … how much you have learned in the course”.

[120] Neumann, note 33, pp 265-66; D H Barber, Answering Law Exams (2nd ed, Silverthorne, Colo: Winning in Law School Inc, 1992).

[121] See above, “The Claim Approach” (text following footnote reference 68).

[122] See above, text following footnote reference 3, particularly “Methodological Benchmarking” (text following footnote reference 62) and “The Claim Approach” (text following footnote reference 70).

[123] In order to illustrate this conclusion, the Model Solution above (see 2(d) shall in the following be solved as far as the claim relationship of C against B is concerned on the basis of English law by way of application of the step-by-step method:

Claim of C against B (Step 1)

1. For the payment of US$3,000 (Step 1)

1.1 Basis of C’s claim (Step 2)

C’s claim could be based on breach of the contract concluded between A and B on 2 October, Sale of Goods Act 1979 (UK), s 49 (referred to as SGA).

1.2 Preconditions (Step 3)

Precondition for C’s claim would be that: (1) a valid contract of sale has been concluded according to which B is obliged to pay the purchase price of US$3,000; (2) the property in the goods has passed to B (SGA Act, s 49(1)), or the price is payable on a certain day irrespective of delivery (SGA, s 49(2)); (3) B wrongfully neglects or refuses to pay such a price (SGA, s 49(1)); (4) C holds the right to claim against B for the payment under the contract. All these preconditions have been fulfilled.

1.3 Is the claim still with C? (Step 4)

C has not lost the claim against B by way of transfer or extinction nor has the claim been amended.

4.4 Enforceability (Step 5)

There is no reason why the claim should not be enforceable.

1.5 Conclusion

C can claim against B for the payment of US$3,000. (The exercise of this claim is, however, subject to non-exercise of the claim under SGA, s 50(1).)

2. For damages for failure to pay and accept the Green Frog (Step 1)

2.1 Basis of the C’s claim (Step 2)

C’s claim could alternatively be based on SGA, s 50(1): see P S Atiyah, J N Adams and H MacQueen, The Sale of Goods (10th ed, Harlow: Longman, 2001), pp 481-82.

2.2 Preconditions (Step 3)

Precondition for C’s claim would be that: (1) a valid contract of sale has been concluded according to which B is obliged to pay the purchase price of US$3,000 and accept the Green Frog; (2) B wrongfully neglects or refuses to accept the Green Frog and to pay the price (SGA, s 49(1) and (2)); (3) C holds the right to claim against B for the payment under such contract.

Precondition (1) and (3) have been fulfilled as explained above (Model Solution 1(b) and (c)). Further, B has wrongfully refused to pay the purchase price: see above Model Solution 1(b). B has not explicitly refused to accept the Green Frog. However, he has requested A to deliver the Green Frog while A had already done everything that was required from his side in order to effect such delivery. Consequently, C has wrongfully neglected his obligation to accept A’s delivery.

The claim against B on the basis of SGA, s 50(1) for damages for non-acceptance has therefore been validly established and transferred from A to C.

2.3 Is the claim still with C? (Step 4)

C has not lost the claim against B by way of transfer or extinction nor has the claim been amended.

2.4 Enforceability (Step 5)

There is no reason why the claim should not be enforceable.

2.5 Conclusion

C can claim against B for damages for non-acceptance. The realisation of this claim is, however, subject to non-exercise of the claim under SGA, s 49(1).

[124] Compare Jones, note 93, p 13, with regard to the construction of arguments for one or more potential legal actions: “First, it assumes that you have identified a legal right from the facts. To give a very simple example, you will have established that there is a contract, a term of which has been broken. You should also seek to identify the legal source of that right – in specific common law or statutory rules … Second, it assumes that you can identify the cause of action accruing from that right …”

[125] Jones, note 93, p 138: “Draw into your net all possible defendants, and then turn round and consider all the possible defences open to them on the facts given.”

[126] Wang Liming, “Specific Performance in Chinese Contract Law: An East-West Comparison” [1992/2] Asia Pacific Law Review 18 at 20.

[127] Compare above, text accompanying note 9.

[128] Manthe, note 70, at 17.

[129] In the private law sector, there are two more significant laws. These are: (1) General Principles of Civil Law of the PRC (effective since 1 January 1997 (referred to as GPCL)), Chinese/English, eg, in China Laws for Foreign Business (4) (Australia: CCH Australia Limited), pp 19-150; and (2) the PRC Contract Law (effective since 1 October 1999), English/Chinese, eg, in CLP 5/1999, p 19; W Shenming, R Cai and M Lee, An Insider’s Guide to the PRC, Contract Law (Hong Kong: Asia Law & Practice, 1999), p 111.

[130] For general aspects of legal education in mainland China, see R O’Brien, “Legal Training in the People’s Republic of China at the Turn of the Century” (2000) 34(2) The Law Teacher 204. In 1997 Wang Liming, note 79, one of the most prominent Chinese law professors, published his book “Research on Tricky Contract Law Cases”. In the foreword, p 1, he complained that the current law teaching methods have many disadvantages and claimed that, although China is a statutory law country, law should (also) be taught on the basis of disputes.

[131] Legal journals and newspapers, however, had always reported on court decisions.

[132] Wang Liming, note 79; Li Yanfang (ed), Yian shuofa – hetongfa pian (explaining law through cases – contract law) (Beijing: Zhongguo renmin daxue chubanshe, 2001); Lin Jia (ed), Yian shuofa – qinquan minshi zeren pian (Explaining law through cases – tortuous liability) (Beijing: Zhongguo renmin daxue chubanshe, 2001); Xie Liangquan (ed), Hetongfa xinshi yu lijie – shang/xia (New explanation of the contract law and case solutions, 1and 2) (Beijing: Tonxin chubanshe, 2000); Zhang Dongmei, Minfa tongze xinshi yu lijie – shang/xia (New explanation of the contract law and case solutions, 1 and 2) (Beijing: Tongxin chubanshe, 2000).

[133] Qiao Xianzhi, note 89.

[134] Wang Liming, note 79, pp 5-6, who suggests that the disputes should be analysed by “applying all sorts of research methods (for example the comparative law method, the method of economic analysis etc)” and that the conclusion must be drawn on the basis of careful reasoning and with focus on the distinction of factual and legal questions. The solutions presented by Wang Liming throughout his book, however, are mostly problem-focused and not standardised as far as methodology is concerned.

[135] Qiao Xianzhi, note 89, p 2: “Although our country has entered into a new historic era of rule of law, the legislative work is still lagging behind and some laws and regulations are not well drafted.”

[136] Compare the previous section, “Structured Problem Solving in Mainland China – General”.

[137] Compare the previous section, “Structured Problem Solving in Mainland China – General”; see also text following footnote reference 138.

[138] In the years 2000-03, I have taught several courses on Chinese Civil Law and Economic Law of China at the School of Law of the City University of Hong Kong on the basis of the step-by-step method. The students were 2nd and 3rd year Hong Kong LLB students or Hong Kong legal professionals with Common Law background taking part in different LLM programs.

[139] For example, under German law the claim of the owner against the (unjustified) possessor for restitution of the owned subject matter is based on Art 985 of the German Civil Code: see note 32. An equally clear provision cannot be found in current PRC property law.

[140] In order to underline this statement the example discussed above (see “Example – Facts”) shall in the following be solved on the basis of PRC law by applying the step-by-step method to the claim relationship C against B. It can be seen that as far as the structuring is concerned basically no difference exists as compared with the model solution based on German law:

Claim of C against B for the payment of US$3,000 (Step 1)

1. Basis of C’s claim (Step 2)

C’s claim could be based on the contract concluded between A and B on 2 October, Art 135 in connection with Art 79 PRC Contract Law.

2. Preconditions (Step 3)

Precondition for C’s claim would be that: (1) a valid contract has been concluded according to which B is obliged to pay of US$3,000; (2) C holds the right to claim against B for the payment arising out of such contract:

(i) On 2 October A and B have concluded a contract. Pursuant to such contract B has the obligation to pay the purchase price of US$3,000.

(ii) According to the contract of 2 October between A and B, originally A was the holder of the right to request B to pay US$3,000. However, A assigned this claim to C on 15 December.

3. Is the claim still with C? (Step 4)

C has not lost his claim against B by way of assignment, extinction, nor has the claim been amended.

4. Enforceability (Step 5)

It is questionable if C’s claim against B is enforceable. B has raised the defence that he will only pay upon delivery of the Green Frog. According to Art 66 sentence 2 of the PRC Contract Law, one party may refuse the other party’s demand for performance if the other party has not yet performed its obligation.

A has not yet fulfilled his contractual obligation to deliver the Green Frog and to transfer title thereto to B according to Art 72 of the GPCL and Art 133 of the PRC Contract Law. Consequently, B had the right to refuse performance. After the assignment of A’s contractual rights to C and notification of B, B now has the right to raise this defence also against C (Art 82 PRC Contract Law). Consequently, A’s claim is currently not enforceable.

5. Conclusion

C has a claim against B for the payment of US$3,000. However, this claim is currently not enforceable.

[141] M Polanyi in M Grene (ed), Knowing and Being (Chicago: University of Chicago Press, 1969), pp 123-37, 138-158, 211-24; M Polanyi, The Tacit Dimension (Gloucester, Mass: Peter Smith, 1983), pp 3-54; M Polanyi, Personal Knowledge (Chicago: University of Chicago Press, 1962), pp 69-131; Bolman, note 66, p 113.

[142] Compare Polanyi, The Tacit Dimension, note 141, p 4: “we know more than we can tell”; see also Bolman, note 66, p 111; Solum, note 114, p 143.

[143] In discussions with the author.

[144] Compare Schultz and Sirico, note 41, p 43: “The single most important thing to remember about legal analysis is that completeness is everything.”

[145] Costanzo, note 5; Jones, note 93, p 5; Krever, note 5, p 134.

[146] Compare “Methodological Benchmarking” above (text following footnote reference 62).

[147] Bolman, note 66, p 113 (“tacit knowledge”).

[148] Compare “Methodological Benchmarking” above (text following footnote reference 62).

[149] Compare “Methodological Benchmarking” above (text following footnote reference 62).

[150] Pound History, note 4, p viii.

[151] Compare “Methodological Benchmarking” above (text following footnote reference 62) and “The Claim Approach” (text following footnote 68).

[152] In a broader context, Sugarman, note 12, p 26; Frug, note 78, at 56.

[153] For Karl N Llenwellyn, see Zweigert and Kötz, note 11, pp 247-48.

[154] Riesenfeld, note 71, p 91; Mattei, note 11, p 219; for the skepticism of Chinese scholars to adopt foreign legal doctrines, see Wang Liming 1997, note 79, p 4.

[155] See above, “Should the Step-by-Step Method be Applied in Non-German Jurisdictions?” (text accompanying note 140).