Eplj 2013 0003

DOI 10.
1515/eplj-2013-0003 EPLJ 2013; 2(1): 22–53
Article
Wolfgang Faber
Functional method of comparative law
and argumentation analysis in the field
of transfers of movables: Can they
contribute to each other?*
Wolfgang Faber: Dr. iur., Assistant Professor at the Department of Private Law,
University of Salzburg, Email: wolfgang.faber@sbg.ac.at
I. Introduction
Considering the “practical” importance of comparative legal research today, it is
probably obvious that unification and law reform projects play a considerable
role. Such projects aim at identifying “best” or “most adequate” rules for the
relevant area of law, may that area be a national or international one, and may
the lex ferenda to which the individual project relates be an actual or hypothe-
tical one. Examples range from Ernst Rabel’s ground-breaking treatise on the
sale of goods,1 ultimately resulting in the adoption of the CISG, to more recent
European academic large-scale projects like the preparation of the PECL2 or the
* This contribution results from a research project on “Argumentation Analysis in the Field of
Transfer of Movables”, financed by the Austrian Funds for Scientific Research (Fonds zur Förder-
ung der wissenschaftlichen Forschung, FWF), project no. P21075. The paper builds on an interven-
tion at a conference entitled ‘The Use of the Functional Method in European and Comparative
Property Law’, held at the University of Maastricht in June 2011. Thanks go to project assistant
Martine Costa, University of Salzburg, who provided material from Dutch, French, and Belgian
law for the example discussed in Chapter II.B.3, and submitted helpful comments on draft
versions.
1 Ernst Rabel, Das Recht des Warenkaufs – Eine rechtsvergleichende Darstellung, Vol. 1 (Berlin
et al.: De Gruyter, 1936), Vol. 2 (Berlin et al.: De Gruyter, 1958).
2 Ole Lando and Hugh Beale (eds.), Principles of European Contract Law, Parts I and II Combined
and Revised (The Hague et al.: Kluwer Law International, 2000); Ole Lando, Eric Clive, André
Prüm and Reinhard Zimmermann (eds.), Principles of European Contract Law, Part III (The Hague
et al.: Kluwer Law International, 2003).
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Functional method and argumentation analysis 23
DCFR,3 and to particular national reform agendas.4 In such projects, compara-

tive law usually serves as a basis. More specifically, comparative legal research
is expected (a) to provide a pool of possible solutions to the relevant problems;
but also (b) to provide a pool of arguments for assessing and evaluating these
different possible solutions.
This kind of research agenda, although undoubtedly not the only one where
undertaking comparative legal research can be regarded as a reasonable endea-
vour, will form the background of the discussion carried out in this article. As its
final result is the formulation of rules, this kind of comparative research is
traditionally rules-focused (which invites certain criticism5), and the expectations
towards comparative law as a discipline will be, to a great extent, to provide a
workable technical framework for actual comparative research-practice. In the
following, I will make an attempt to relate the functional method of comparative
law,6 which continues to appear the mainstream7 methodological approach in
comparative legal research, especially when the objects of research are rules and
institutions like in the context described above, to a newly-developed approach
3 Christian von Bar and Eric Clive (eds.), Principles, Definitions and Model Rules of European
Private Law: Draft Common Frame of Reference (DCFR) Full Edition (Munich: Sellier, 2009).
4 For a recent example from the realm of personal property law, see the Scottish Law Commis-
sion’s Report on Prescription and Title to Moveable Property, SCOT LAW COM No. 228 (May 2012),
which takes account of the discussion in the DCFR, certain foreign legal systems such as French
and German law, and of comparative legal literature.
5 Advanced, in particular, by Pierre Legrand. See Chapter IV.B below, where this issue will be
discussed more intensively.
6 See Konrad Zweigert and Hein Kötz, Introduction to Comparative Law, 3rd ed. translated
by Tony Weir (Oxford: Clarendon Press, 1998) 32 ff for a description of the “traditional”

functional method of comparative law. For a “moderate” version of the functional method,
see Jaakko Husa, ‘Farewell to Functionalism or Methodological Tolerance?’, (2003) 67 RabelsZ
419; cf. also Ralf Michaels, ‘The Functional Method of Comparative Law’, in: Mathias Reimann
and Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law (Oxford
et al.: Oxford University Press, 2006) 339. Further recent accounts of problems as well as
actual and potential developments of the method are provided by Julie De Coninck,
‘The Functional Method of Comparative Law: Quo Vadis?’, (2010) 74 RabelsZ 318; Michele
Graziadei, ‘The functionalist heritage’, in: Pierre Legrand and Roderick J. C. Munday (eds.),
Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press,
2003) 100.
7 Whether it can be considered the “prevailing” approach may be another issue, however not to
be discussed here. The focus on the functional method in this article does not imply, as such, any
methodological preference of the author with regard to the various methods developed and
applied in comparative legal research. It is simply explained by the topic of the conference for
which this paper was prepared (see fn. * above).

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24 Wolfgang Faber
of argumentation analysis. The latter approach,8 developed by a working group

headed by myself, starts from precisely the same background of an emerging
(European) discourse on evolving optimal rules on the basis of comparative
research, and seeks to explore potential benefits to be gained from another
academic discipline, argumentation analysis, for enhancing that current dis-
course in terms of structure, transparency and completeness.9 The particular
focus of this research project is on matters related to the transfer of “ownership”
of corporeal movable assets, and I will stick to this focus for the purposes of the
present article, although the method, as such, is in no way limited to this field
of application.
Relating these two methods to one another will include, in particular, the
questions of whether – and how – the one method can contribute to the better
application or development of the other, or how these methods can at least
complement each other in a fruitful manner (Chapters III and IV below). By taking
into account criticism advanced against functionalist comparative law, the dis-
cussion also aims at drawing a realistic picture of the capacities and limits of the
argumentation analysis approach. Before entering into this discussion, it will,
however, be necessary to present brief outlines of the two methodological ap-
proaches (Chapter II). These outlines will focus on the technical level of how these
approaches operate as working methods, i.e. on the steps to be carried out when
practically applying them, and they will be kept as short as necessary for the
subsequent discussion.
8 A comprehensive outline of the methodological approach, including an analysis of the present

European discourse forming the background of developing this method, is presented by Wolfgang
Faber and Martin Lilja (with contributions from Günther Kreuzbauer), ‘Employing Argumentation
Analysis in the Discussion of Optimal Rules for the Transfer of Movables – Part 1: Description of
the Problem and General Outline’, (2012) 1 EPLJ 10. Concrete examples of applying methodologi-
cal tools adopted by this approach are discussed by Wolfgang Faber (with contributions from
Martin Lilja), ‘Employing Argumentation Analysis in the Discussion of Optimal Rules for the
Transfer of Movables – Part 2: Examples and Conclusions’, (2012) 1 EPLJ 232.
9 The approach, and the goals pursued by it, largely coincide with claims advanced in recent
literature to make legal scholarship a more normative, argument-oriented discipline; cf. Jan
Smits, ‘Redefining Normative Legal Science: Towards an Argumentative Discipline’, in: Fons
Coomans, Fred Grünfeld, and Menno T. Kamminga (eds.), Methods of Human Rights Research
(Antwerp and Oxford: Intersentia, 2009) 45.

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II. Outlines of the two approaches

A. The functional method of comparative law
The traditional functionalist method of comparative law, as promoted by Zweigert

and Kötz, does not require much of a presentation here.10 Leaving a number of
underlying assumptions and details aside, its process can roughly be described in
the following five steps:11
1. posing the functional research question, i.e. formulating the problem without
any reference to the concepts of a particular legal system;
2. presenting the systems under investigation and their way of solving the
defined problem;
3. listing similarities and differences in the ways of solving the defined pro-
blem;
4. explanation of similarities and differences in the ways of solving the defined
problem (which involves building a system in order to be able to compare the
various solutions);
5. critical evaluation of discoveries (sometimes – depending on the research
agenda – judging which of the solutions is “best”).
We will get back to some of these steps in the subsequent discussion.
B. The argumentation analysis approach
Since the argumentation analysis approach referred to in this article can in no

way claim to be equally known as the functional method of comparative law, it
will be necessary to present this approach in somewhat more detail. Still, the
subsequent outline will remain fairly rough and fragmentary. For a fuller descrip-
tion, reference must be made to earlier publications.12
As has been noted above, this method has been developed to enhance a
discourse aiming at the determination of which rule is relatively best for solving a
10 Instead, see the literature quoted in fn. 6.

11 See Zweigert and Kötz (fn. 6) in particular at 10 ff, 33 ff, 43 ff. The numbering follows Husa,

(2003) 67 RabelsZ 419 (at 425); cf. also Jaakko Husa, ‘About the Methodology of Comparative Law
– Some Comments Concerning Wonderland…’, Maastricht Working Papers, Faculty of Law 2007–
5 (2007, accessible at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1085970) at 9 f.
12 See the two-part article by Faber and Lilja, (2012) 1 EPLJ 10, and Faber, (2012) 1 EPLJ 232,
quoted in fn. 8.

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26 Wolfgang Faber
specific (property law) problem. This implies that the central objects of this
approach are (a) the various possible solutions to the given problem, phrased in
the form of (hypothetical) rules; and (b) arguments supporting or attacking these
possible solutions, i.e., pro- and contra-arguments relative to these rules. More
specifically, the focus is on policy arguments (in a relatively wide sense), by
which we understand arguments from consequences, i.e. arguments building
upon effects the adoption of a rule of law may achieve or contribute, and which
are intended either to be achieved or avoided by the arguer for specific reasons.13
These reasons, or “interests”, may be of various types, e.g., political, social,
ethical, and/or economic preferences. The focus on this kind of arguments was,
originally, chosen with the perspective of applying this approach to arguments
which are, potentially, universally applicable (in the sense that the argument
does not, e.g., depend on a particular provision of national law, or invoke
consistency within a given legal system). In this sense, it was suggested to liberate
oneself from barriers imposed by a specific legal system when discussing which
rule is relatively best on the basis of policy arguments.14
Having made these preliminary remarks as to the object of research (policy
arguments), we can now turn to the question of how an analysis of such argu-
ments is conducted under the proposed method of argumentation analysis. It is
suggested to carry out the analysis on five levels (or “steps” made from general to
specific, which, however, does not mean that these steps have to be undertaken
chronologically when applying this approach):15
1. Segmentation of the discourse into typical “conflict situations” (comparable
to the Scandinavian “functional approach”)
2. Identification of “main categories” (clusters) of argumentation
3. Reconstruction of argumentation in argument surveys as suggested by Arne
Næss
13 See Faber and Lilja, (2012) 1 EPLJ 10 (Chapter I.B); cf. also John Bell, Policy arguments in
judicial decisions (Oxford: Oxford University Press, 1983) 22 f.
14 See Faber and Lilja, loc. cit., This should, however, not lead to completely liberating the
discussion from national law implications, as the overall context to which a rule or argument
relates in a given legal system may be fundamental for their proper understanding; cf. below,
Chapter IV.B.
15 These steps are described in more detail in Faber and Lilja, (2012) 1 EPLJ 10 (Chapter IV.B). The
five-step-approach results from modifying a general analytical framework suggested by one
representative of argumentation theory, namely by Josef Kopperschmidt, Methodik der Argumen-
tationsanalyse (Stuttgart: Frommann-Holzboog, 1989). However, on the level of the individual
“steps” of analysis, we suggest implementing tools offered by various authors and “schools”
operating in the field of argumentation analysis; see Faber and Lilja, (2012) 1 EPLJ 10 (Chap-
ters IV.A and IV.B).

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4. Micro analysis of single arguments

5. Final evaluation
The role assumed by the analyst when applying the methods proposed for each of
these “steps” is a neutral one. She does not act as a participant in the discussion,
advancing arguments herself in order to achieve a specific result, but reduces her
position to a critical spectator who aims at identifying weak (or strong) points in
the argumentation. In the approach proposed here, this does not prevent the
analyst from introducing new arguments on her own if this is done for the
purpose of making them subject to further analysis. In the evaluation, however, a
position may be taken preferring one solution over others. The subsequent
sections will explain the single “steps” in more detail.
1. Segmentation of the discourse into typical “conflict situations”
The first step suggested in our approach is to split the existing argumentative
discourse – e.g., writings pertaining to the transfer of ownership of goods to be
found in national or international treatises, judgements, preparatory works is-
sued in a national legislative process, in the Comments to the DCFR, or in
literature related thereto – into segments. By this, we mean that the problems
related to a “transfer of ownership” shall, for the purposes of analysis, be dealt
with separately, divided into typical conflict situations.16 Starting the analysis
with a segmentation of the contributions to a discussion is, on the one hand,
suggested by argumentation analysis literature.17 On the other hand, this is some-
thing already to be found in certain European legal systems, namely the Nordic
legal systems which apply a so-called “functional approach” (not only, but in
16 See Faber and Lilja, (2012) 1 EPLJ 10 (Chapter IV.B.1).

17 Cf. Kopperschmidt, Argumentationsanalyse (fn. 15) 228 (summarising the steps of his analyti-
cal framework), 210 and 221. However, in the examples Kopperschmidt has in mind (pp. 220 f), all
utterances already relate to the very same specific problem, so that using the segmentation stage
for dividing up a discourse centred around a complex concept – e.g., “ownership”, potentially
comprising solutions to many specific conflicts (see the text below) – into these specific single
conflicts does not become an issue. Instead, Kopperschmidt’s segmentation, in his example, only
consists of differentiating between the participants of the discussion (p. 221). Where, on the other
hand, the existing discourse as such requires segmentation into different specific problems in
order to make the single contributions comparable and to relate them to each other and to the
specific problem, it appears reasonable to use the segmentation stage for dissecting the material
according to the specific problems (conflict situations) as suggested here.

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28 Wolfgang Faber
particular, with regard to issues elsewhere in Europe classified as a “transfer of

ownership”).18
The easiest way of characterising this functional approach is by contrasting it
with what applies elsewhere on the continent. Continental European legal sys-
tems as well as the Sales of Goods Acts in England, Ireland, and Scotland, provide
for rules defining one specific moment in time for the “transfer of ownership”.
Upon this moment in time, “ownership” (equivalent to “property” or “title”)
passes from the transferor to the transferee with a large number of consequences,
including, for instance, the transferee’s protection against the transferor’s general
creditors (especially in case of the transferor’s insolvency), the right to use or
dispose of the property, and rights to protect the property against third parties.
This can be characterised as a “unitary approach” to the transfer of ownership.19
In contrast, the Scandinavian functional approach does not even pose the
question of “when does ownership pass”. Instead, legally relevant facts and their
legal consequences are linked directly, without placing a concept like “owner-
ship” in the middle. Problems are structured by distinguishing different typical
conflict situations, depending on which parties are involved and which interests
collide. For example, each of the following issues would be considered as a
conflict-type of its own:
– the question of when a buyer can separate the goods and is thereby protected
against the seller’s general creditors in the latter’s insolvency;
– vice versa, an unpaid seller’s protection against the buyer’s creditors;
– the conflict between two buyers to whom the seller sold one and the same
thing (double sale);
– the conflict between an “original owner” of goods and a person who bought
these goods from another person who was not entitled to dispose of the goods
(“good faith acquisition”).
Each such conflict situation is perceived as a separate issue, to be solved indepen-

dently and based on its own merits. Accordingly, different criteria, and therefore
different moments in time, may be relevant for deciding these various conflicts.
18 There, by the way, does not seem to exist much reflection on why the Nordic approach is
called “functional”. As explained by Jaakko Husa, the Finnish equivalent to the Swedish term
funktionell synsätt (= “functional approach”) is “analytical approach”.
19 The description is somewhat simplified, as systems following a unitary approach also provide
a number of “functional effects” in additional rules of law; cf. Wolfgang Faber, ‘Scepticism about
the Functional Approach from a Unitary Perspective’, in: Wolfgang Faber and Brigitta Lurger
(eds.), Rules for the Transfer of Movables – A Candidate for European Harmonisation or National
Reforms? (Munich: Sellier, 2008) 97 (at 104 ff).


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The advantage Scandinavian lawyers see in this kind of structuring problems is

that solutions can be developed by weighing solely the interests involved in the
specific type of conflict.20
For comparable reasons, this way of structuring problems also makes sense
for the purpose of analysing policy arguments. Structuring argumentation by
means of conflict situations helps to take into account only those arguments that
are actually relevant for the given type of conflict, and – since some arguments
may be relevant for a greater number of types, but with different force – to
determine an argument’s specific weight within each individual type of conflict.
Accordingly, Step 1 of the proposed approach of argumentation analysis adopts
the segmentation of the argumentative discourse according to typical conflict
situations as mentioned above.
2. Identifying “main categories” (clusters) of argumentation
A second level of analysis suggested by the argumentation analysis approach is

identifying “main categories” (or “clusters”) of arguments. By this, we under-
stand arguments which are interconnected with each other in a way that they
either support or attack each other directly. Often, these arguments are grouped
around and related to a basic idea, such as “protection of commerce” or “econom-
ic welfare/efficiency”, “consumer protection”, “party autonomy”, “equal treat-
ment of creditors”, etc. Among the purposes of undertaking such categorisation is
the observation that some main categories may be linked to certain general
interests or theories, as in the case of “economic welfare arguments” which may
be associated with Law & Economics theories. On the one hand, this may provide
a fuller understanding of single arguments (belonging to the relevant category)
by revealing underlying interests. On the other hand, linking categories to general
theories should also allow taking into account criticism to which such theories
are exposed on a general level. Furthermore, such categorisation may facilitate
20 The explanation given in the text roughly follows Faber and Lilja, (2012) 1 EPLJ 10 (Chapter II).
For a more detailed account of the Scandinavian functional approach in English language, see,
e.g., Martin Lilja, ‘National Report on the Transfer of Movables in Sweden’, in: Wolfgang Faber
and Brigitta Lurger (eds.), National Reports on the Transfer of Movables in Europe, Volume 5:
Sweden, Norway and Denmark, Finland, Spain (Munich: Sellier, 2011) 1 (at 13 ff); Claes Martinson,

Transfer of Title Concerning Movables, Part III – National Report: Sweden (Frankfurt et al.: Lang,
2006), in particular at 9 ff, 37 ff; Claes Martinson, ‘How Swedish Lawyers Think about ‘Ownership’

and ‘Transfer of Ownership’ – Are We Just Peculiar or Actually Ahead?’, in: Faber and Lurger
(eds.), Rules (fn. 19) 69.

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30 Wolfgang Faber
carrying out the analysis in Steps 3 and 4 of our proposed approach, by helping to
identify arguments which can support or attack each other directly, so that they
can be analysed and evaluated in relation to each other in a rather objective way.
At the same time, categorisations may facilitate the apprehension of where such
an objective evaluation may not be possible and, therefore, value-based (in the
end, subjective) choices remain to be made.21
It has already been indicated that in practice, the five “steps” (or “levels”) of
analysing argumentation will not necessarily be undertaken in a strict chronolo-
gical order. Step 2 is a good example in this regard. Since sometimes the true
meaning of an argument only becomes apparent after reconstructing unexpressed
parts of it, it may make sense to turn to this step only after having done some
micro analysis (Step 4).22
3. Reconstruction of argumentation in argument surveys as suggested by

Arne Næss
It has been mentioned that one of the goals pursued by the argumentation
analysis approach is to help improving the structure of argumentation (one
problem frequently occurring in debates on “best” rules being that arguments
advanced in order to defeat each other’s standpoints actually do not attack each
other directly).
One means to pursue this goal, and to “prepare” a body of argumentation for
the more detailed analysis to be carried out at the micro level (Step 4) is drawing
up argument surveys as suggested by the Norwegian philosopher Arne Næss.23
Such a survey can comprise arguments put forward by a great many of partici-
pants of discussion, e.g. academic authors from various European legal systems.
In fact, creating comprehensive but still well-structured “pools” of arguments fed
by a great number of sources from different legal systems – which can then serve
as a basis for discussing which solution appears relatively best – was one of the
original motivations for developing this analytical approach. However, compiling

22 Cf. the examples discussed by Faber, (2012) 1 EPLJ 232 (Chapters V.C.5 and VI.B.4).
23 Arne Næss, En del elementære logiske emner (Oslo: Universitetsforlaget, 1st ed. apparently from
1941, 11th ed. 1982), English translation: Communication and Argument – Elements of Applied
Semantics (Totowa, New Jersey: Bedminster Press, 1965). References will go to the English version.
For a more detailed description of Næss’ suggestion and its benefits, see Faber and Lilja, (2012)
1 EPLJ 10 (Chapter IV.B.3).

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a Næss-like argument survey can also be helpful when analysing arguments

discussed by just one person.24
An example is offered below. It reflects arguments put forward in Dutch,
French, and Belgian legal writings and travaux préparatoires dealing with the
question of whether good faith acquisition should be possible with regard to
stolen goods. More specifically, these arguments are grouped around the idea
that allowing good faith acquisition concerning stolen goods could stimulate the
trade of stolen goods and thefts in general. Apparently, this had been a main
point of discussion in the Netherlands before the new Dutch civil code was
enacted.25
In Næss’ argument survey, the ultimate conclusion defended by the arguer is
listed as the “statement”. In our context, the statement will usually express a
hypothetical rule of law deciding a particular conflict situation (or a specific
question regarding such a conflict situation). Then, pro- and contra-arguments
directly relating to this statement (supporting or attacking this statement directly)
are listed as P- or C-arguments of the “first order” (e.g., P1, P2, C1, etc.). The
24 For examples, see Faber, (2012) 1 EPLJ 232 (Chapters V.C.2 and VI.B.2).
25 See the references in fn. 26–35 below. Ultimately, a compromise solution was adopted in
Article 3:86 (3) NBW: Stolen goods can, in general, be recovered by their original owner within
three years from the day of theft, but an exception is made for consumer-buyers purchasing stolen
goods from a professional seller of “similar goods” acting in its ordinary course of business,
provided that (among other details) the sale took place at the seller’s business premises. In this
way, the Dutch legislator tried to balance the need to fight crime (to discourage theft by hampering
the trade in stolen goods) against the need to protect those who are dependent on the acquisition
of used goods; see Arthur Salomons, ‘National Report on the Transfer of Movables in The Nether-
lands’, in: Wolfgang Faber and Brigitta Lurger (eds.), National Reports on the Transfer of Movables
in Europe, Volume 6: The Netherlands, Switzerland, Czech Republic, Slovakia, Malta, Latvia (Mu-
nich: Sellier, 2011) 1 (at 111 f, with a translation of Article 3:86 NBW at 107). In the French
discussion, the argument of obstructing theft and trade in stolen goods by means of good faith
acquisition rules occurs in the context of Articles 2276 (2) and 2277 (1) Cc (formerly Articles 2279
and 2280 Cc), under which the owner of stolen goods can claim the goods back from the good faith
possessor within a period of three years as from the date of theft, but the rightful owner must
reimburse the possessor for the price paid, if the sale took place at a fair, in an auction, in a market
or from a seller selling “similar things”. Especially with regard to the latter prerequisite, which
excludes sellers of various types of used goods (brocanteurs), it has been pointed out that the
owner’s possibility of recovering the stolen goods without being obliged to reimburse the
purchase price may hinder the activities of such brocanteurs who (are assumend to) frequently
deal in stolen goods; cf. Jean Carbonnier, Droit civil, Tome 3: Les biens, 19th ed. (Paris: Presses
Universitaires de France, 2000) no. 234; François Terré and Philippe Simler, Droit civil: Les biens,
8th ed. (Paris: Dalloz, 2010) no. 441; for Belgium: Henri De Page and René Dekkers, Traité
élémentaire des droit civil Belge – Tome V: Les principaux contrats usuels (Deuxième partie), Les
biens (Premiere partie), 2nd ed. (Bruxelles: Bruylant, 1952) no. 1081.

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32 Wolfgang Faber
example provided below, which is only a segment of arguments are that actually
or can potentially be advanced in relation to the particular statement, reflects
only one such argument of the first order (P1). Arguments supporting or attacking
these arguments of the first order are listed as arguments of the second order
(e.g., P1P1, P2P1, C1P1, etc.), and so on:
Statement (F0): With regard to stolen goods, a person (C) who bought the goods in good faith
from a person lacking the right or authority to dispose of them (B) should not be safe against
claims (for recovery of possession, or other claims) from the owner (A) who had been
dispossessed involuntarily (no good faith acquisition of stolen goods).
P1: The opposite rule (allowing good faith acquisition of stolen goods) would stimulate
the trade in stolen goods and thefts in general,26 which must be avoided.
P1P1: Such stimulation would occur because the trader in stolen goods and the
thief himself would practically be safe against claims for the recovery of the goods
by the involuntarily dispossessed owner (A).27
C1P1P1: Argument P1P1 has no relevance for the statement F0 because neither the
thief himself nor the trader in stolen goods would ever be protected by a good
faith acquisition rule; only a good faith purchaser (C) would be protected.28
C1C1P1P1: Argument P1P1 may well have indirect relevance for the state-
ment F0 if the thief or trader in stolen goods succeeds in claiming that
he himself has acquired in good faith and, consequently, the true own-
er’s (A’s) claim for recovery is dismissed.29
26 From the Dutch discussion: P.A. Stein, ‘Het lustrum van het dispuutgezelschap Joannes van
der Linden’, (1984) 33 AA 14 (at 16). Another Dutch author, Brunner, builds on Stein’s argument
and asserts that maintaining the (former) Dutch rule that the owner (A) is entitled to recover stolen
goods against reimbursement of the price from the good faith buyer (C) would promote the trade
in stolen goods and thefts in general; see C.J.H. Brunner, ‘Artikel 2014 BW oud en nieuw’, 1984
NJB 176. A position comparable to P1 was adopted by the Dutch Minister of Justice during the
preparation of the new Dutch civil code, where he argued that protecting the good faith acquirer
(C) also with regard to stolen goods would obstruct the fight against the trade in stolen goods, and
theft as such; see W.H.M. Reehuis and E.E. Slob (eds.), Parlementaire geschiedenis van het nieuwe
Burgerlijk Wetboek – Invoering Boeken 3, 5 en 6: Boek 3, Vermogensrecht in het algemeen (Deventer:
Kluwer, 1990) 1217 (henceforth referred to as ‘Parl. Gesch. Inv. Boek 3, 5, en 6’).
27 See Parl. Gesch. Inv. Boek 3, 5, en 6 (fn. 26) 1212, referring to Stein (fn. 26). Stein, however, does
not mention the thief himself here (as the quotation of his view in the preparatory works would
imply), and he only says that it would be difficult for the dispossessed owner (A) to recover the
stolen goods from a person trading in stolen goods because he (A) would have to prove the latter’s
bad faith, for which evidence is often lacking. Similarly, Brunner (fn. 26) argues that the trader in
stolen goods would be safe if his bad faith cannot be proven.
28 Argument added by the author.
29 Argument added by the author. A similar, but more narrowly confined argument (addressing
only the requirement of good faith, but not other requirements of good faith acquisition) is put
forward in several sources, and will be listed separately as P1C1C1P1P1 (with references in fn. 30).

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P1C1C1P1P1: The acquirer’s (C’s) bad faith is difficult to prove.30

P2P1: On the other hand, hampering the thief in getting rid of the stolen goods
would obstruct the circulation of such goods.31
P1P2P1: If the acquirer (C) knows that the goods may be recovered by the
original owner (A) when they have been stolen, he will probably be more
attentive when acquiring the goods and make appropriate investigations to
assure that the goods have not been stolen.32
C1P1: One cannot assume that a good faith acquisition rule which also protects
buyers of stolen goods will stimulate the trade in stolen goods, since being faced
with a claim for recovery of the goods by the dispossessed owner is not risky due
to other reasons.33
P1C1P1: One of these reasons is that stolen goods are usually very difficult to
discover and to identify.34
P2C1P1: (Even) if the police find stolen goods in the possession of thieves or
accomplices, they often cannot find out to whom these goods belong.35
P2: (…)
A survey like this, first of all, helps providing a structured overview when dealing
with a great number of arguments, and a useful starting point for the further
analysis of arguments at the micro-level (Step 4). Among other benefits, it also
helps visualising how arguments relate to each other.36 It shows which (and how)
30 Cf. Stein, cit. (see fn. 26), and another comment of Stein submitted to the competent legislative
commission, as referred to in Parl. Gesch. Inv. Boek 3, 5, and 6 (fn. 26) 1212; Brunner (fn. 26) 176;
H.C.F. Schoordijk, ‘Enige vragen naar aanleiding van een viertal bepalingen van derden-
bescherming’, (1984) WPNR no. 5698, 297 (at 302); see also the opinion of the Dutch Minister of
Justice during the preparatory works, Parl. Gesch. Inv. Boek 3, 5, en 6 (fn. 26) 1217.
31 From the French discussion: Raymond Saleilles, De la possession des meubles – études de droit
allemand et de droit français (Paris: Pichon, 1907) no. 44.
32 Saleilles, De la possession des meubles (fn. 31) no. 44. He puts forward the same argument also
with regard to lost goods.
33 A Dutch Minister in the debate on good faith acquisition rules before enactment of the new
Dutch civil code, Parl. Gesch. Inv. Boek 3, 5, en 6 (fn. 26) 1215.
34 See the Minister quoted in fn. 33, at p. 1214.
35 From the discussion in the Netherlands: Roëll, Inbraken: wat weten ervan, Justitiële verkennin-
gen (1984) no. 8, 14 as referred to in Parl. Gesch. Inv. Boek 3, 5, en 6 (fn. 26) 1214.
36 These advantages of the Næss-structure are also highlighted by Kopperschmidt, Argumenta-
tionsanalyse (fn. 15) 214 f who, however, also points at a possible problem: Given the variety of
possible roles of utterances in an argumentative discourse, the differentiation into “P” and “C” is
somewhat reductionist, as there may be difficulties to appropriately cover utterances of an
opponent which are reduced to a problematisation or critical review of the proponent’s contribu-
tion. For the purposes of our analysis, this problem will probably have limited relevance, as the
focus will be on utterances which make a substantial contribution to the discussion (by either
introducing additional support or substantive critique). In the case of doubt, one may flag
arguments of the kind addressed by Kopperschmidt as C-arguments (assuming the role of

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34 Wolfgang Faber
arguments support or attack each other, how one argument can qualify another,
e.g. by demonstrating that the legitimate sphere of application of a broadly-formu-
lated argument is smaller than in the version originally advanced.37 On the other
hand, where the survey shows that certain arguments are not related to each other,
this may indicate that none of them can defeat the other on a mere logical level (in
the sense that one is “right” and the other is “wrong”). When, in such a case, it
comes to decide which argument(s) – and, therefore, which solution – are to be
regarded the most plausible one(s), one will more easily be aware that it will above
all be subjective preferences that decide the weighing of interests.
Finally, a structured overview like this often stimulates developing further
arguments, which can be added to those extracted from an existing discourse.
This may contribute to making the overall discourse more complete, and creates a
better basis for deciding which solution to a given problem is considered rela-
tively best.
4. Micro analysis of single arguments
The usually most intensive “step” or “level” of analysis is Step 4, which deals
with the analysis of single arguments (such as identified by the Næss survey).
Argumentation theory offers a rich toolbox for these purposes.38 In our experience
gathered so far, the most important devices for doing such micro analysis have
been:
– the argument scheme developed by Stephen Toulmin,39 providing a means
for detailed reconstruction of an argument, thus making it possible to identify
unexpressed elements of an argument, and forming a basis for detailed
criticism of any single part of an argument; and
questioning the proponent’s position by calling for additional support, which implies that the
argumentation produced by the proponent so far is not considered convincing). In many cases, an
appropriate way to deal with such critical interventions will be to implement them at the stage of
micro-analysis (Step 4) by calling for an additional “Backing” in the Toulmin model (see Chapter
II.B.4 below for an explanation of this model).
37 Cf. C1C1P1P1 in relation to P1P1.
38 For an introduction, see Faber and Lilja, (2012) 1 EPLJ 10 (Chapter IV.B.4). For examples and
the explanation of further tools, see Faber, (2012) 1 EPLJ 232 (in the Chapters referred to in fn. 40
and 41 below).
39 Stephen Toulmin, The Uses of Argument (Cambridge: Cambridge University Press, 1st ed. 1958,
most recent updated ed. 2003) 87 ff (reference goes to the updated edition 2003); see also, with

some minor terminological changes, Stephen Toulmin, Richard Rieke, and Allan Janik, An
introduction to reasoning (New York: Macmillan, 1979) 23 ff.


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– “rules of critical discussion”, as formulated by many argumentation theor-

ists, and related research on “fallacies” that may be committed by partici-
pants in the discussion by violating one of these rules.40
This article is not the place to discuss extensive examples,41 but having at least a
brief look at an application of the Toulmin model will be advisable, as we shall
come back to this example later. Before we sketch the argument – resembling the
argument referred to as C1C1P1P1 in the previous Chapter – in a Toulmin scheme, I
should provide a short introduction to the different constituents of an argument
in Toulmin’s model.42 In this layout, any argument consists of six components
(which are, however, not always made explicit by the arguer in practice). The
“starting point” of the argument is called “Data”; it consists of the facts or other
information on which the argument is based. The “Claim”, on the other hand, is
the conclusion of the argument, which the arguer seeks to justify by employing
the other elements of the argument. In our context, the “Claim” will often be a
hypothetical rule of law deciding a particular conflict (or a specific issue thereof).
In order to justify the step from Data to Claim, a general rule-like statement is
required. This “bridge” is called the “Warrant” in the Toulmin model. Usually,
however, the Warrant alone does not make the argument fully convincing. There-
fore, additional support should be provided as “Backing”. The function of this
element is to show that the Warrant can be relied upon as sound (reliable,
trustworthy), relevant (to the point), and weighty. Still, the convincing force of
the argument will in most cases be less than hundred percent. Accordingly,
Toulmin introduces the element of a “Qualifier” to reflect the different degrees of
force characterising the impact of the premises named so far (Data, Warrant,
Backing) on the conclusion (Claim). That may be a term like “maybe”, “presum-
ably” (which is used as the standard qualifier in case no higher or lower degree of
force is in place), “probably”, “almost certainly”, or even “necessarily”. Finally,
specific exceptional circumstances under which the arguer considers the Warrant
not to justify the Claim can (should, if possible) be formulated as “Rebuttals”.
40 See, for instance, Frans van Eemeren, Rob Grootendorst, and Francisca Snoeck Henkemans,
Argumentation – Analysis, Evaluation, Presentation (Mahwah, NJ: Erlbaum, 2002) 109–154, 182–
186; Frans van Eemeren and Rob Grootendorst, Argumentation, Communication, and Fallacies –
A Pragma-Dialectical Perspective (Hillsdale, NJ: Erlbaum, 1992) 93 ff. Examples from the realm of

property law are discussed by Faber, (2012) 1 EPLJ 232 (Chapters VI.B.3.b) and d)).
41 For more detailed examples employing the Toulmin model, see Faber, (2012) 1 EPLJ 232
(Chapters V.C.4.a) and b), VI.B.3.a) and c) sub (i)).
42 For a somewhat more elaborate introduction, see Faber and Lilja, (2012) 1 EPLJ 10 (Chap-
ter IV.B.4 sub a)).

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36 Wolfgang Faber
Argument C1C1P1P1 can thus be reconstructed and diagrammed as follows:
Diagram 1: Toulmin model of argument C1C1P1P1.
Dissecting a particular argument into its different elements proves to be a useful

tool for identifying its possible weaknesses; each component can be called into
question and criticised on its own merits. For example, the information contained
in the Data and, above all, in the Backing is presented as facts. That means it
should be possible to back this information by some kind of empirical evidence.
Often in legal argumentation, such evidence is not provided. Then it should be
clarified that what is presented as facts is but an assumption; and the assumption
may be more or less plausible. Evidently, this will have an impact on the Qualifier
(which has not been specified by the arguer in the example shown in Diagram 1,
for which reason it is provisionally flagged with a question mark). Another useful
feature of the Toulmin model is that it helps reconstructing elements of an
argument that have been left unexpressed by the arguer. Research carried out so
far shows that not only Backings, but also Warrants – which certainly are a
central element of an argument – remain unexpressed surprisingly often. A usual
effect is that this makes it more difficult to criticise the argument substantively,
among other reasons because it may remain unclear which of several possible

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different interpretations of an argument the arguer really wants to advance.43 In

the present example, one will notice that no Rebuttals are indicated (since the
arguer did not mention any). When analysing the argument under the Toulmin
scheme, possible Rebuttals can be formulated.44 In the context of discussing legal
rules, such Rebuttals could lead to the adoption of exceptions to the general rule.
Where it turns out, however, that strong Rebuttals apply to a broad scope of the
original argument, this may reduce the force of the argument, reflected in the
Qualifier, to a very low degree.
A full analysis of the argument pictured in Diagram 1 will not be carried out
here. However, I will come back on some aspects of this example further below.45
5. Final evaluation
The fifth and last step in the proposed argumentation analysis approach consists
of a final evaluation of the arguments discussed in the four previous steps in
relation to the different possible solutions within each conflict situation.46 Ulti-
mately, one may extend the evaluation also to the question of whether, in
particular if the results for a greater group of conflict situations converge, it
appears preferable to formulate legal rules in the tradition of a unitary transfer of
ownership, or in the form of a unitary basic rule with certain exceptions for
particular conflicts, or in the tradition of a functional approach.
Although this final evaluation builds upon the analysis undertaken in the
four previous steps, it may ultimately go further than what can be achieved by the
tools and means offered by argumentation theory. In fact, the academic discipline
of argumentation analysis provides no elaborate doctrine for undertaking such
final evaluation. One can certainly say that some methods offered by argumenta-
tion theory are normative, but the normative character of the approach presented
here is limited to the rules established by argumentation theory.47
43 Cf. the examples discussed by Faber, (2012) 1 EPLJ 232 (Chapters V.C.4.a) and b)).
44 For example, in the case of the argument reflected in Diagram 1: “unless people can be
effectively deterred from committing thefts and from trading in stolen goods (by concrete means
…).” Another possible Rebuttal – the strength of which is of course up to discussion – could be
formulated along the lines of contributions actually made in the Dutch discussion: “Unless the
acquirer (C), as a prerequisite for invoking protection under good faith acquisition rules, first has
to clarify the circumstances under which she acquired the goods.” Cf. Parl. Gesch. Inv. Boek 3, 5, en
6 (fn. 26) 1214; Salomons in Faber and Lurger (eds.), National Reports, Vol. 6 (fn. 25) 112.
45 See Chapter IV.B.
47 This aspect will be discussed further in Chapter III.C.

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38 Wolfgang Faber
III. Instances where functional comparative

research may benefit from the argumentation
analysis approach
On this basis, we can now turn towards the question of whether, and by which
means, the proposed method of argumentation analysis may make contributions
to the functional method of comparative law. The focus remains to be on property
law, and more specifically, on the transfer of “ownership” (and related matters)
of corporeal movable assets. Yet, some of the aspects discussed below will be able
to claim more general relevance.
To begin with, we may recall what has been said about the functional method
of comparative law in recent writings on that matter by authors who, albeit open
to accept criticism advanced against the method, uphold its core methodological
concept of equivalence functionalism. It has been stated that the possibilities of
functional comparative law are limited48 and, regarding its technical guidance
offered for carrying out comparative research, that:49
“[a]t best it is a rough methodological point of departure which actually says little about the
technical side of comparison and actual comparative research strategies. It is more an
analytical principle or even a rule of thumb than an exact and operational method.”
Also, it has been noted that “equivalence functionalism provides surprisingly

limited tools for evaluation”,50 and that “functionalist comparative law is a
particularly bad tool for the unification of law”.51
I suggest that specifically with regard to these aspects mentioned, the argu-
mentation analysis method can at least make some contributions.
48 Husa, (2003) 67 RabelsZ 419 (at 422 and passim).

49 Husa, cit., at 433.
50 Michaels in Reimann and Zimmermann (eds.), Handbook (fn. 6) 374. He observes that the
yardsticks for evaluation must lie outside the specific function under scrutiny, and suggests that it
can be found either in the costs of an institution, or in its functionality or dysfunctionality
regarding other problems (at 375). Cf. also Husa, (2003) 67 RabelsZ 419 (at 438), stating that
functionalism is not capable of normative criticism of foreign rules and institutions, which it
studies.
51 Michaels, cit., at 376. His point, among others, is that if different legal systems are already
similar regarding individual functions (as the orthodox functional method claims to show), then
the benefits from unification lie only in formal improvements and may well be outweighed by the
costs.

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Attention should also be drawn to another aspect before entering into the
detailed discussion of mutual enrichment, a parallel regarding main objects of
research. Both methods are, in a way, rules-focussed. The functional comparative
method focuses on the comparison of rules and institutions, argumentation
analysis (as applied by the approach presented above) on analysing arguments
relative to (supporting or attacking) hypothetical rules of law.52 Apart from expos-
ing both methods to potential parallel criticism, observing this parallel may invite
to accept help offered by the sister discipline.
A. Shaping the tertium comparationis
In order to make solutions adopted in different legal systems comparable, “[t]he

functional method does not directly address rules and institutions as they appear
in different legal systems, but approaches them as a response to certain pro-
blems”.53 “Comparability is attained through the construction of universal pro-
blems as tertia comparationis”.54 In the words of Zweigert and Kötz,55
“[t]he question to which any comparative study is devoted must be posed in purely func-
tional terms; the problem must be stated without any reference to the concepts of one’s own
legal system. (…) [A]lways in comparative law one must focus on the concrete problem.”
These are quite clear words. However, in comparative research carried out in the
area particularly focused on in this contribution, i.e., the passing of “ownership”
of movable assets, the demand for liberating the research-question from concepts
of national law has been surprisingly non-influential, at least in comparative
legal studies undertaken by continental European lawyers. The concept of “own-
ership” apparently operates as a linchpin, placed in the centre of further concepts
and dichotomies predominating as structuring elements, such as the delivery
versus consensus principle, the existence or non-existence of a special agreement
as to the transfer of property (real agreement), and the causal or abstract transfer
– of ownership.56 Stating this finding does not necessarily imply blaming the
52 As expressed as the “Statement” in a Næss-survey (cf. Chapter II.B.3) or as the “Claim” within
the Toulmin model (cf. Chapter II.B.4).
53 Quoted from De Coninck, (2010) 74 RabelsZ 318 (at 323).
54 Michaels in Reimann and Zimmermann (eds.), Handbook (fn. 6) 368 f.
55 Zweigert and Kötz, Introduction to Comparative Law (fn. 6) 34 f (p. 33 in the German original).
56 Focusing on recent publications, reference may be given to Ulrich Drobnig, ‘Transfer of
Property’, in: Arthur Hartkamp, Martijn Hesselink, Ewoud Hondius, Chantal Mak, and Edgar du

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40 Wolfgang Faber
authors of these studies for any shortcoming, as it cannot be taken for granted
that they all regard themselves committed to the functional method of compara-
tive law. However, if one wants to take the functional method seriously, much
speaks for structuring the problems (the tertium comparationis) related to the
transfer of movables in a “fragmented” way, by formulating typical conflict
situations depending on which parties are involved and which interests collide,
as applied by the proposed argumentation analysis approach (Step 1).57
Of course, this contribution cannot be claimed to originate solely from our
argumentation analysis methodology. In principle, this way of structuring has
been applied by the Nordic legal systems and their lawyers since long; and it
could have been revealed by functional-method comparative research on its own.
However, the fact that general argumentation analysis theories58 propose similar
ways of dissection and structuring for analytical purposes appears to provide
additional support. Also, the proposal made here for shaping the tertium compar-
ationis does not mean that one should blindly copy the functional-approach-way
of structuring as applied in Scandinavia, which arguably also has its deficits.59
Perron (eds.), Towards a European Civil Code, 4th ed. (Alphen aan de Rijn et al.: Wolters Kluwer,
2011) 1003; Christian von Bar and Ulrich Drobnig, The Interaction of Contract Law and Tort and
Property Law in Europe – A Comparative Study (Munich: Sellier, 2004) 325 ff; Lars van Vliet,

Transfer of movables in German, French, English and Dutch law (Nijmegen: Ars Aequi Libri, 2000).
The Comments to Book VIII DCFR (specifically on the basic rule VIII.–2:101) may be said to be a
mix of both traditional (continental) structuring of problems and a discussion structured by
“functional” conflict situations; the Notes (providing information in the European legal systems)
mainly follow the “traditional” approach. For VIII.–2:101, see DCFR Full Edition (fn. 3) 4378 ff and

4437 ff. See also the updated publication, containing considerably extended Notes, by Brigitta

Lurger and Wolfgang Faber, in co-operation with Anastasios Moraitis, Martine Costa, Alessio
Greco, Martin Lilja, Ernest Weiker, and Rui Cascao, Principles of European Law – Acquisition and
Loss of Ownership of Goods (PEL Acq. Own.) (Munich: Sellier, 2011), henceforth referred to as the
‘PEL Acq. Own.’, at 405 ff and 466 ff. Also the structure underlying the series Wolfgang Faber and

Brigitta Lurger (eds.), National Reports on the Transfer of Movables in Europe, six volumes (Munich:
Sellier, 2008–2011) must be said to be predominantly traditional in a continental sense (although
mentioning them here is not fully to the point as these reports are, as such, not comparative).
57 Cf. Chapter II.B.1 above.
58 See Kopperschmidt, Argumentationsanalyse (fn. 15) as referred to in fn. 17 and the accompany-
ing text.
59 For some aspects in this regard, see Faber and Lilja, (2012) 1 EPLJ 10 (towards the end of
Chapter II). Moreover, some issues traditionally present in the unitary thinking seem to be broadly
neglected in functional legal systems; e.g., the “passing” of the “right to use” and the “right to
dispose”, the question of who (transferor or transferee) shall be entitled to protection against third
parties, to claim damages, etc.; cf. the list of aspects discussed in Comments C(c) to VIII.–2:101
DCFR in the DCFR Full Edition (fn. 3) 4388–4414 and in PEL Acq. Own. (fn. 56) 415–442. In order to
formulate the possible social problems appropriately as tertia comparationis for functional com-

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However, starting closer reflections on how to formulate the functional questions

really functionally in property law is, in my view, certainly a route worth taking.
Needless to say that this would also have an impact on the subsequent stages of
carrying out functional comparative law research,60 including description, sys-
tem-building, and evaluation.
B. Choice of legal systems, acceptance of dogmatic

challenges, etc.
The second point almost inevitably follows from the first. However, it does not
concern the method, but rather the research program to which the method of
(functional) comparative legal research may be applied: the legal systems under
scrutiny. The argument is, not surprisingly, to assign the Scandinavian legal
systems a more prominent role in comparative property law in Europe,61 specifi-
cally when the study relates to transfer issues or other aspects where the func-
tional way of thinking can be fruitfully applied.
Based on such extension of interest, and taking into account that often one of
the major benefits of comparative legal research is developing a better critical
understanding of one’s own system, lawyers promoting a unitary approach would
be called upon to face the criticism Scandinavian functionalism advances against
the unitary concept,62 and to accept the challenge of re-identifying possible
parative research, one should arguably borrow both from the functional as well as – in terms of
completeness – from the unitary approach tradition.
60 Cf. the steps listed in Chapter II.A.
61 When extending the research beyond Europe, special attention may be given to U.S.-American
personal property law where, as far as transfers under a sale of goods are concerned, the drafters
of Article 2 Uniform Commercial Code (UCC) explicitly sought to eliminate (almost) any relevance
of “title”-thinking. See, for instance, the Official Comments to Section 2–101 (3rd paragraph) and
the introductory sentence before paragraph 1 of Section 2–401 UCC (the latter provision explicitly
stating the limited importance of “title”). However, strangely and unnecessarily in my view,
Article 2 UCC adopts new technical concepts like the one of a “special property” (Section 2–501
UCC, meaning no more than that the goods are identified to the contract) which makes it doubtful
how “functional” in the sense employed here Article 2 UCC really is. For some introductory views
and references, see Faber and Lilja, (2012) 1 ERPL 10 (Chapter II).
62 To mention one of the most prominent examples in English language, see Alf Ross, ‘Tû-Tû’,
(1957) 70 Harv. L. Rev. 812, who asserts that “ownership” is an empty word which could be
replaced by any other, such as “old cheese”. For substantially comparable criticism, advanced
with similar rhetorical strength by the main draftsman of Article 2 UCC, see Carl N. Llewellyn,
‘Through title to contract and a bit beyond’, (1938) 15 N.Y.U. L.Q. Rev. 159. A certain problem with
this kind of critique is that some of its proponents tend to present (and sometimes the word

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42 Wolfgang Faber
advantages of their traditional approach. To a certain extent, argumentation

analysis may well contribute to such a research endeavour. Once one has investi-
gated which policy arguments speak for the one or other solution for different
conflict situations, and once one has made a decision on what should be regarded
the “relatively best” solution for each of them, one can take a second step and see
to what extent these single solutions to the various problems differ. This, then,
can be taken into account for deciding the question of whether (or, perhaps, to
what extent), it may ultimately appear preferable to phrase legal rules in a
functional or (more) unitary way. The latter may find strong(er) support should
the result of the analysis of the single conflict situations be that the optimal
solutions to many of them converge,63 but certainly a decision on how to finally
shape optimal transfer rules will involve other aspects as well, such as legal
certainty and preferences pertaining to legal “culture”, etc.64
At this stage (at the latest), I should perhaps clarify that the whole advocating
of a “functional” way of thinking in the sense of the promoted argumentation
analysis approach concerns solely the purpose of analysis. It does not imply –
and this should not be misunderstood! – a preference as to the question of how
legal rules should be structured and designed (unitary or functional). The exercise
requires open thinking, but – taking the position of a unitary lawyer – does
neither presuppose nor necessarily lead to yielding to an alien legal tradition. A
final side-note may be added: Apart from the level of analysis (and the purpose of
this article), indeed much speaks in favour of entering into a new dialogue
between unitary (continental European and, regarding transfers of movables,
common law) and Nordic functional way of thinking.65 There is even reason to
assume that both can mutually enhance each other.66 Turning a blind eye to the
“tendency”, in this context, is a clear understatement) the unitary approach in a ridiculed fashion.
This has been noticed and criticised also by Scandinavian lawyers in the recent years; cf. an
extensive footnote comment, worthwhile reading, by Lilja in Faber and Lurger (eds.), National
Reports, Vol. 5 (fn. 20) 17 ff (fn. 41). Anyway, a negative undertone should not cause lawyers

promoting a unitary approach to ignore the substance of the criticism.

63 This aspect is stressed in the reasoning for why the DCFR, in its basic rule, adopts a unitary
approach (which is, however, open to a number of exceptions); see Comment G to VIII.–2:101,
DCFR Full Edition (fn. 3) 4427 ff, and PEL Acq. Own. (fn. 56) 456 f.

64 Cf. Faber in Faber and Lurger (eds.), Rules (fn. 19) 117 ff.

65 For the Scandinavian audience, this will be the principal aim of the forthcoming PhD thesis of
Johan Sandstedt, Sakrätten, Norden och europeiseringen – Nordisk funktionalism möter kontinental
substantialism (Stockholm: Jure, 2013), of which I have received a summary in advance from the
author.
66 See Claes Martinson, ‘Ejendomsrettens overgang – Norden kontra verden’, in: Kavita Bäck
Mirchandani and Kristina Ståhl (red.), Förhandlingarna vid det 39:e nordiska juristmötet i Stock-

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Scandinavian approach, on the other hand, could hardly claim to be a scientific

method.
C. The evaluation stage
We have already been reminded that the functional method of comparative law
provides only limited tools for evaluation (if such evaluation is even regarded a
research goal67). It has also been stated that the discipline of argumentation
analysis, too, provides no elaborate doctrine for undertaking a final evaluation.
However, it does provide some normative methods on which evaluation can
build, although the normative character of the analytical approach presented
here is limited.
For example, argumentation analysts provide rules for critical discussion to
which arguers are required to comply.68 Where arguers violate these rules, they
commit fallacies and this can be revealed by argumentation analysis, and finally
flow into the ultimate evaluation of arguments. The consequence will be that such
arguments will be agreed to have limited force. Or, it may be possible to improve
the argument on the basis of the analysis carried out, and it may then be counted
as more weighty in the final evaluation. The Toulmin model, to mention another
example, provides elements to visualise the limited force of an argument and the
extent to which it calls for exceptions (Qualifier, Rebuttal).69 These, too, may fulfil
a normative function. The results of applying these techniques can be taken into
account for the purposes of evaluation in a functional comparative research
study, where – not very much different to pure argumentation analysis – much
will concern the evaluation of arguments put forward in relation to the solutions
adopted by the different legal systems.
However, the methods offered by argumentation analysis do not provide
criteria for weighing different arguments that cannot defeat each other as such.
These may be, e.g., arguments from different “clusters” as identified in Step 2 of
holm 18–19 augusti 2011, Del 2 (Stockholm: Den svenska styrelsen, 2012) 20. The paper was
originally presented at the Meeting of Nordic Lawyers in Copenhagen 2008; that meeting’s
proceedings, however, only reproduce the discussion on the paper, see Mads Bryde Andersen and
Jonas Christoffersen (red.), Forhandlingene ved Det 38. nordiske Juristmøde i København,
21.–23. august 2008, Bind 2 (Copenhagen: Den danske Styrelse, 2010) 237.
67 Whether or not an evaluation is required will depend on how the subject of the study is
defined; see, e.g., Zweigert and Kötz, Introduction to Comparative Law (fn. 6) 11.
68 See Chapter II.B.4 and the references and examples provided in fn. 40 above.
69 Again, see Chapter II.B.4.

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44 Wolfgang Faber
the proposed approach,70 and/or arguments that cannot be linked in a Næss-

survey (Step 3).71 There may, for instance, be “economic arguments” making a
strong case for one solution, and “justice/fairness arguments” speaking for
another, and one cannot falsify the other.72 But what an approach promoting the
application of argumentation theories can actually contribute is “preparing” the
arguments available for a final evaluation in as thorough a manner as possible,
thereby providing an adequate framework for carrying out this evaluation system-
atically and transparently, enabling anyone to follow and question each step of
the process.
What can be done is weighing such arguments that cannot defeat each other
in a strict sense, each on itself, and finally making a choice which solution to
prefer, valuing its “benefits” so high that possible other consequences appear
acceptable. Having applied tools of argumentation analysis to these arguments
already may help to accept that it will often not be possible to motivate such a
choice by logic alone. The choice will be based on values in a broad sense, on
political, moral or ethical, perhaps religious or philosophical, maybe economic-
ally striven preferences, perhaps on sympathies. As analysts, we will nevertheless
require to disclose these motives and values one builds such choice on. In this
way, the decision-making and the weighing process can at least be enhanced as
to substance, rationalised, and carried out as transparent as possible.
D. Further aspects
There may be further instances where functional comparative research may

benefit from the argumentation analysis approach. For example, where the aim of
the research is to make recommendations as to which rule to adopt in a given
legal system to face a certain problem, the analytical approach can help to
develop existing solutions (identified by comparative research) further and there-
by improve them by analysing criticism directed against them.
70 Cf. Chapter II.B.2.

71 Chapter II.B.3.
72 For example, an argument submitting that an “abstract transfer system” is preferable because
it provides optimal “protection of commerce” cannot provide a direct attack to the argument that
a third party buyer (C) who actually knows that the contract between his seller (B) and the former
owner (A) is invalid does not deserve protection. One will hardly persuade an audience that such
C is worthy of protection. One can of course try to reformulate such arguments in order to get them
linked; cf. Faber, (2012) 1 EPLJ 232 (in fn. 109). But often, a direct weighing according to a common
normative criterion will still not be possible. What can be done is weighing these arguments each
on itself, and finally making a choice which solution to prefer; see below in the text.

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Similarly, it may help to develop “new” solutions which have no equivalent

in existing legal systems. For example, if the predominant argument for protect-
ing a buyer against the seller’s creditors already from the conclusion of the
contract is to prevent pre-paying buyers from suffering a loss in the seller’s
insolvency, then an alternative solution potentially achieving the same effect
might be protecting the buyer as from the moment of payment.73 Another possible
solution, actually inspired both by comparative observations74 and an evaluation
of various arguments put forward with regard to the named conflict between a
pre-paying buyer and the seller’s creditors, could be the following:75 In addition
to a basically unitary delivery rule, a pre-paying consumer-buyer (who might be
considered typically unable to protect his pre-payment by negotiating for a
constitutum possessorium or other security) might be granted a kind of preferen-
tial right in the seller’s goods: Where the sale concerns specific goods or generic
goods that have already been identified to the contract, this right might consist in
a right to separate these goods from the seller’s estate (against full payment of
any remaining price, if relevant). Where, on the other hand, the contract concerns
goods not yet identified, and there are not sufficient goods on stock in the seller’s
estate to satisfy all pre-paying consumer-customers according to the method
mentioned above, the consumers’ rights could be rights for preferential satisfac-
tion of their claims for recovery of their pre-payments, to be satisfied out of the
existing stock of these goods. This would actually put buyers of generic goods in
a better position than under a traditional consensus-principle (where they remain
unprotected in lieu of identification) and, thus, minimises the difference in the
level of protection granted to buyers of specific goods and buyers of generic
goods, respectively, which is hard to justify in terms of worthiness of protection.
73 This option was discussed in the course of preparing Book VIII of the DCFR. See, in particular,
Comment C(g) to VIII.–2:101, DCFR Full Edition (fn. 3) 4414 ff and PEL Acq. Own. (fn. 56) 442 f,

discussing different sub-options and their problems.

74 In this case, the solution adopted in French and Belgian law to grant the unpaid seller a
“privilege” or right of “quasi-vindication” after delivery of the goods to the buyer. The idea of
granting a right in the other party’s assets is, however, applied in the opposite direction by the
proposal presented below.
75 Presented by Martine Costa and Wolfgang Faber, ‘Die Eigentumsübertragung beim Kauf
beweglicher Sachen im französischen und belgischen Recht’, 2010 ZfRV 260 (at 272 f). It should be
clarified that putting forward this suggestion does not mean a deviation from the position both
authors adopted in the DCFR. Rather, this proposal was made to face the possibility that the idea
of protecting pre-paying buyers in consumer sales should get strong political support. In this case,
the proposal would make it possible to stick to a basically unitary delivery rule while implement-
ing a “functional” exception just for the issue of protecting pre-paying consumers in the seller’s
insolvency.

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46 Wolfgang Faber
IV. How the argumentation analysis approach

may gain from the functional method,
and from critique advanced against it
A. General aspects
Reversely, the argumentation analysis approach may also profit from the func-
tional method of comparative law. An obvious instance is that, where the analysis
addresses a discourse related to a foreign legal system or to several legal systems,
comparative research delivers much of the material the analytical approach needs
to operate. It supplies possible solutions to the given problem, which can be used
as “Statements” (hypothetical rules), and the arguments put forward in relation
to these solutions in the relevant discourse, which are the basic objects of
analysis. Also, functional comparative research, with its quest to take into con-
sideration various legal and extra-legal circumstances and phenomena in the
countries under investigation,76 can provide much context information for gain-
ing a fuller understanding of the rules and arguments under analysis.
Second, just as the “functional” structuring of problems employed by the
proposed argumentation analysis approach should provide a stimulus for func-
tional comparative research,77 the latter may, vice versa, provide support for
structuring the analytical research. In order to accomplish the task imposed by
Step 1 of the argumentation analysis approach (segmenting the discourse into
conflict situations), it will be necessary to identify potentially relevant facts which
can be used for structuring the “conflict situations” (and potential sub-situations)
in a reasonable manner. Functional (or other) comparative research may be very
helpful in this regard. For example, when focusing on the seller’s protection
against the buyer’s general creditors or the buyer’s protection against the seller’s
creditors, different stages of delivery and payment may be relevant facts. Expand-
ing the comparative research to U.S. law will suggest considering further poten-
tially relevant facts, such as the point in time the other party to the contract
becomes insolvent. An instance in this regard is Section 2–502 (1)(b) UCC,78 which
provides that the buyer has a right to recover identified goods in the seller’s
insolvency provided the buyer has paid (at least parts of) the price, and the first
instalment of payment has been made within 10 days before the seller became
76 See, e.g., Zweigert and Kötz, Introduction to Comparative Law (fn. 6) 38 f.

77 Chapter III.A above.
78 Subparagraphs numbered as amended in 1999. Previously, the rule now numbered subpara-
graph (1)(b) was contained in the (undivided) paragraph (1).

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insolvent. This invites contemplating which arguments might speak for imposing
such a tight connection as to time79 (and, why 10 days, why counted from the first
payment?). Analysing these arguments will, in turn, enrich the debate on optimal
rules.
Third, when being confronted with a particular argument in the process of
carrying out the argumentation analysis, the analyst may feel that a certain kind
of criticism could be advanced against the argument, or specific parts of it, but
she would feel more comfortable if this criticism could be backed by more general
observations or studies in a related field. Comparative legal research (functional
or other), in particular where it interacts with neighbouring scientific disciplines
(like sociology, economy, statistics, etc.), may provide a rich field of insights in
this regard. To mention just a few aspects that may easily become relevant when
carrying out a micro analysis of arguments, in particular of arguments with an
“economic” flavour, which have been mentioned in a recent publication summar-
ising contemporary developments and problems of “statistical comparative
law”:80 The quality of statistical data that might be used for comparative purposes
is (still) problematic. Comparability of such data is a general problem with all
approaches of using them for comparative legal studies. And, the causality-
relation between law and economy is, up to the present day, not solved in a
satisfactory manner. Statistical (or other empirical) data presented as facts in
Backings or in Data (in the sense of the Toulmin layout) may often be exposed to
criticism along these lines.
B. Reflections on the possibilities of argumentation analysis,

stimulated by critique advanced against functionalism
Traditional functional comparative law in the form of the “old canon” presented
by Zweigert and Kötz has received manifold criticism.81 The following discussion
79 The standard explanation given is that within this 10-days-period, “it is probable that fraud or
reckless behavior will be present” on the side of the seller who, knowing full well that delivery will
never be made and that bankruptcy is inevitable, “loads up” (by receiving pre-payments) “at the
expense of innocent parties for the benefit of other creditors.” Quotes are from Linda Rusch in
William D. Hawkland (ed.), Uniform Commercial Code Series, Vol. 2 (Wilmette, Ill.: Callaghan/
West Group, 2002) § 2–502:1 (at pages numbered Art. 2–1012 to Art. 2–1013).
80 Katharina Pistor, ‘Statistische Rechtsvergleichung: Eine kritische Bestandsaufnahme’, (2010)
109 ZVglRWiss 348. The aspects mentioned in the text are addressed, in this order, at pp. 351 (see
also 359 regarding surveys provided by “national experts”), 352 f, and 356.
81 For overviews see, for instance, the contributions by Michaels, Husa and De Coninck quoted
in fn. 6.

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48 Wolfgang Faber
will pick up some selected aspects of this criticism which could, similarly, also be
advanced against the proposed argumentation analysis approach. This shall help
developing a realistic idea of possible problems this approach has to face, its
capacities to cope with these problems, and its internal limits.
As mentioned above, the proposed argumentation analysis approach can be
said to be rules-focused; a property shared, in a certain way, by the functional
method of comparative law.82 Such rules-focus of comparative legal research has
been heavily criticised by Pierre Legrand; in a most concentrated manner perhaps
in his critique of Alan Watson’s ‘Legal Transplants’,83 whose view Legrand char-
acterises as follows:84
“(…) law is rules and only that, and rules are bare propositional statements and only that. It
is these rules which travel across jurisdictions, which are displaced, which are transplanted.
Because rules are not socially connected in any meaningful way, differences in ‘historical
factors and habits of thought’ do not limit or qualify their transplantability. A given rule is
potentially equally at home anywhere (in the western world).”
Legrand claims that such an apprehension of ‘law-as-rules’ and ‘rules-as-bare-

propositional-statements’ is a most impoverished understanding of law, and of
the interactions across legal systems in particular. To the contrary, Legrand
asserts that the meaning of a rule is not entirely supplied by the rule itself, but is
“a function of the interpreter’s epistemological assumptions which are them-
selves historically and culturally conditioned”. Furthermore, he stresses that a
rule is necessarily an incorporative form of culture; “the part is an expression and
a synthesis of the whole: it resonates”.85 Among the features characterising the
interiorised legal culture (or mentalité) of a given legal system, he identifies such
issues as: the nature of reasoning, the significance of systematisation, the char-
acter of rules, the role of facts, the meaning of rights, and the presence of the
past.86
It is not difficult to see that the argumentation analysis approach proposed
by my working group comprises potential targets of similar criticism. Hypotheti-
cal rules play a central role in the applied methods of analysis; they are recon-
82 Cf. the introduction to Chapter III above.

83 Alan Watson, Legal Transplants: An Approach to Comparative Law, 2nd ed. (Athens, Georgia:
University of Georgia Press, 1993).
84 Pierre Legrand, ‘The Impossibility of ‘Legal Transplants”, (1997) 4 MJ 111 (quotation from
p. 113).
85 Legrand, (1997) 4 MJ 111 (113 ff; quotes from pp. 114 and 116).

86 Pierre Legrand, ‘European Legal Systems are not converging’, (1996) 45 ICLQ 52 (at 60 ff); this

article also provides a rejection of the ‘law-as-rules’ idea (e.g., at 56, 58 ff).


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structed as “Statements” in Næss-surveys (Step 3) and as “Claims” in the Toulmin

model (Step 4). When drawing up an argument survey in the Næss-tradition, it is
more or less necessary to state arguments as well as the Statement in short and
plain form87 in order to achieve the benefit of a clear and easily-comprehensible
overview. In such a survey, a Statement-rule will very much resemble a bare
propositional statement of the kind attacked by Legrand; and so may the single
arguments related to it. Keeping things short (if one sticks to this shortness
throughout the study) will certainly create a risk of culture-blindness, or more
generally a risk of neglecting context-elements of all possible kinds. This risk may
be particularly relevant where the analysis deals with arguments put forward in
relation to seemingly convergent rules in different legal systems. Consciously or
unconsciously applying a praesumptio similitudinis in the sense of a presumed
similarity of policy arguments advanced in different legal systems might be even
more problematic than presuming a similarity of solutions (as advocated by the
old canon of functionalist comparative law)88 where the context underpinning the
argument differs and this is difficult to detect. Any idea of focusing on “univer-
sally applicable” arguments89 will raise suspicion. Finally, a method aiming at
the identification of “optimal” or “relatively best” rules will necessarily accept (if
not want) that the rules so established will be adopted, and therefore imply a
potential transplant-orientation, at least in a wide sense of the concept.
I do not intend to take on a closer discussion of whether Legrand’s critique is
fully justified. For the purposes of this article, I think this is not necessary;
although in general, I feel that in some points, a less apodictic understanding
would be preferable.90 For the following discussion, it is primarily important to
note the undeniable possibility of culture-dependent differences in the under-
standing of rules, and regarding the understanding as well as the strength of
related arguments. On the other hand, it apparently makes sense to broaden the
scope of our discussion beyond relatedness to legal culture, and equally take into
87 According to Næss, Statements should ideally be expressed in one sentence. See Næss,
Communication and Argument (fn. 23) 104 f.
88 The latter presumption is advocated by Zweigert and Kötz, Introduction to Comparative Law
(fn. 6) 39 f. For an overview of criticism directed against this presumption, see Michaels in
Reimann and Zimmermann (eds.), Handbook (fn. 6) 369 ff.
89 See above, Chapter II.B at fn. 14, and Faber and Lilja, (2012) 1 EPLJ 10 (Chapters I.A and I.B) for
more detailed deliberations on this issue.
90 For instance, regarding Legrand’s rather extreme conception of transplants as perfect imita-
tions (including the whole cultural background) – for which reason they are regarded impossible
– and the view that law (a rule) necessarily has no determinate content apart from a given legal
culture. Cf. Michele Graziadei, ‘Comparative Law as the Study of Transplants and Receptions’, in:
Reimann and Zimmermann (eds.), Handbook (fn. 6) 441 (at 468 ff).

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50 Wolfgang Faber
account other types of context potentially relevant for the understanding and
strength of arguments, such as economic and social circumstances in the single
jurisdictions.
The question, then, is which conclusions can be drawn from the potential
criticism referred to above. First, one can probably state that in general, such
criticism does not affect the roots of the argumentation analysis approach, but
should perhaps best be taken as a powerful reminder91 not to neglect certain
requirements which are, in principle, already inherent in it. Focusing on potential
rules arguably is not problematic per se, but it could easily become problematic if
the object of the study were exclusively understood to be reduced to a handful of
written words, and period. Context matters, as has been recognised by argumen-
tation theorists ever since.92 The challenge is to implement this conventional
wisdom into every-day analytical work with due care, at a level that keeps the
method still workable, and to proceed with reasonable sensitivity as to the
standard of such due care, given that the implications of cultural (social, econom-
ic, etc.) particularity on a rule or on an argument may vary considerably when
dealing with different legal systems.
This, second, leads to certain conclusions as to the handling of the method.
As we have seen, for instance, propositions included in a Næss-survey more or
less need to be phrased concisely. If, for example, an argument is put forward in
different legal systems and the different legal and cultural context requires what-
ever kind of different understanding of the argument, then one can react to this
finding by either clarifying the different contextual circumstances in accompany-
ing explanatory text (which may be footnotes, where sufficient, or separate
91 Comparable to Husa’s suggestion that new and critical comparative law (the latter being
Legrand’s approach) are likely to be best suited “for being a critical potential within the discipline
[of comparative legal studies], a kind of scholarly conscience”. Cf. Husa, (2003) 67 RabelsZ 419 (at
446).
92 The significance of context in argumentation theory is multifaceted. For example, taking
utterances out of the context violates one of the general rules of critical discussion and amounts to
a special type of fallacy, the so-called fallacy of the straw man; see van Eemeren, Grootendorst,
and Snoeck Henkemans, Argumentation (fn. 40) 118. On the importance of context for reconstruct-
ing unexpressed elements of argumentation, see, for instance, van Eemeren and Grootendorst,
Argumentation, Communication, and Fallacies (fn. 40) 64 ff. Discourse analysts stress that their

method (whose tools can reasonably be applied within the micro analysis of Step 4 of the
proposed approach) is always a move from context to language and from language to context; see
James Paul Gee, An introduction to discourse analysis: theory and method, 3rd ed. (New York:
Routledge, 2011) 20. See also Gee, cit., at 56: “[M]eaning is not merely a matter of decoding
grammar, it is also (and more importantly) a matter of knowing which of the many inferences that
one can draw from an utterance are relevant. And ‘relevance’ is a matter deeply tied to context,
point of view, and culture.”

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paragraphs containing explanations) or by listing the different variants of the

argument separately in the survey (with appropriate explanations). It is also
obvious that the degree of risk that the study becomes subject to culture- or other
context-related distortions can be minimised by defining the scope of the study
more narrowly. Where only arguments uttered by one single person are analysed,
the context can often be taken into account quite easily and, e.g., missing
elements in an argument can be reconstructed from the circumstances with a
relatively high degree of probability.93 Cultural (and other context-related) risks
may also be kept rather small where the study relates to argumentative contribu-
tions made within one single legal system, or originating from relatively similar
systems. To what extent such limitation makes sense will depend on the research
question.
Third and perhaps most importantly, it will also be possible to internalise the
problem of culture-dependence94 into the analytical framework, at least with
regard to certain tools and levels of analysis. The proposal made above to add
explanatory texts to the Næss-survey already constitutes one example of such
integration. Another tool which is potentially open to an integration of culture-
dependence is the Toulmin model. Taking argument C1C1P1P1 as reflected above
in Chapter II.B.4 as an example, one can plausibly assert that all factual informa-
tion put forward in that argument (in the Backing and Data) may be correct to a
higher or lower degree in different legal systems. The “correctness” of the Backing
will, for instance, depend on “legal” aspects such as the standard of good faith
relevant under the national provisions of good faith acquisition, the burden of
proof as to the prerequisites of good faith and as to other preconditions of good
faith acquisition, general rules on the standard of proof (Beweismaß) in the given
legal system, perhaps rules on the probative value of certain types of evidence
(like witnesses or assertions made by the plaintiff), if relevant in the given legal
system, and so on.95 Other factors may be relevant as well, such as the rate of
93 See, e.g., the reconstruction of a missing part of the Statement (Claim) in the analysis of Justice
Torgny Håstad’s argumentation in a particular text, presented by Faber, (2012) 1 EPLJ 232 (Chap-
ter V.C.1).
94 In the remainder of the text, the term “culture-dependence” will be used as a short-cut
formula, comprising not only legal culture but also other types of facts forming the context
potentially bearing on a rule or argument, such as economic and social circumstances.
95 A good example as to how the strength of an argument may depend on its “legal environment”
is argument P1C1C1P1P1 as reflected in Chapter II.B.3 (“The acquirer’s (C’s) bad faith is difficult to
prove.”). Its plausibility certainly depends on many of the aspects mentioned in the text, such as
the standard of good faith as well as the burden and standard of proof. Furthermore, with regard
to Dutch law, from which all sources quoted with regard to argument P1C1C1P1P1 originate (fn. 30),
the strength of that argument (under the new civil code) is qualified by a special rule imposed by

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52 Wolfgang Faber
theft-cases solved by the police, or general standards in everyday-trade-practice

like the question to what extent (or in which segments of economy) it can be
regarded as “usual” in a given society that sales transactions are performed
without clear written documentation (which might be missing in the case of
thieves), or how easy it would be to fake such documentation, etc. Of course, one
can also question whether the information provided in the Data be equally
supported in all legal systems under investigation.
Furthermore, to continue on instances of integrating issues of culture-depen-
dence into a Toulmin-scheme analysis, it might be possible to formulate different
Rebuttals against the background of different legal systems and societies. Per-
haps thefts and trade in stolen goods can be effectively obstructed otherwise,
which may reduce the “necessity” of excluding good faith acquisition of stolen
goods considerably (at least in the light of argument C1C1P1P1). Or, there may exist
differences as to the extent the behaviour of members of a given society – in
particular, regarding our example, thieves, traders in stolen goods, and their
(potential) customers – would actually be influenced by varying property law
rules.96 All such findings will have an impact on the Qualifier expressing a final
assessment as to the strength of the argument (which, as emerges from the
foregoing, can vary between the different legal systems). The Toulmin model,
here, proves to be a useful tool for identifying which particular parts of an
argument are culture- and context-dependent in which particular way.
If this kind of analysis reveals that, for example, a given argument occurring
in different legal systems deserves a higher degree of plausibility under the
circumstances present in system A than in system B and perhaps in further
systems, then this culture-dependence will also have an impact on the conclu-
sions to be drawn in the final evaluation (Step 5). Conclusions – or, in particular,
Article 3:87 (1) NBW: This rule imposes a duty on the acquirer (C), ending three years after the
acquisition, to supply, upon request, all information needed to trace the seller (B) to the original
owner (A). If this duty is not complied with, C is not entitled to invoke Article 3:86 NBW (the good
faith acquisition rule). As to its practical consequences, this rule lightens the owner’s burden of
proof. For an overview in English language, see Salomons in Faber and Lurger (eds.), National
Reports, Vol. 6 (fn. 25) 112 f (with translations of the relevant statutory provisions).
96 An example – however, arguably heavily simplifying matters – can be given with regard to
Dutch law: It has been assumed in literature that “smart” dealers of, e.g., used cars would
effectively paralyse the information duty imposed by Article 3:87 (1) NBW (see fn. 95: duty to
provide information regarding the previous possessor) by mutually agreeing that they will
indicate each other as the previous possessor of the car. Since the rule only requires to name the
alienator of the goods (B), but not any predecessor of that person, the intended effect of Article
3:87 (1) NBW would thereby circumvented. This assumed reaction of market participants (acting
in the role of B) has been put forward by Stein, (1984) 33 AA 14 (at 17).

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generalisations expressed in conclusions – may be less reliable the bigger rele-

vant cultural (and other) differences are found to be. Just as in the case that
clashing arguments cannot be weighed directly against each other but ultimately
require a choice based on subjective preferences,97 cultural differences bearing on
the assessment of arguments should be made transparent so that they can openly
be taken into account when drawing final conclusions.
In any case, with regard to the aspect of culture-dependence discussed above,
the idea of universal applicability of (policy) arguments must be qualified to a
certain extent. The meaning of an argument and its plausibility may vary depend-
ing on the national context. However, this does in no way mean that striving for
an international discussion on the level of arguments should be given up. Rather,
the idea needs to be put into a realistic perspective: an international discourse is
possible with regard to arguments that are to some extent universal. The impor-
tant lesson to learn is that conducting this kind of research requires awareness of
possible implications of various circumstances on the precise content of a rule
and the understanding and strength of arguments, and that such implications
need to be adequately dealt with within the method.
V. Conclusive remarks
Relating the functional method of comparative law to methods of argumentation
analysis has shown that there is potential for (another) fruitful inter-disciplinary
co-operation, with benefits for both sides. In particular, the proposed argumenta-
tion analysis approach may contribute by making functionalist comparative
research more functional (through shaping the tertium comparationis) and by
making evaluation more transparent. On the other hand, pointing to a couple of
specific problems identified by critical comparative law can help the analyst to be
conscious of potential problems innate also to the argumentation analysis ap-
proach proposed here, and to increase the quality of analysis by coping with these
risks (specifically, risks related to culture-dependence of rules and arguments).
Although the efforts of properly carrying out any of these two methods are
apparently high, undertaking studies of both kinds will probably pay off when
the aim is to identify the relatively best solution in a given area of law. The focus
on a better law approach in this article is not, however, intended to imply that the
methods could not be fruitfully applied for other purposes.
97 Cf. Chapter III.C above.

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DOI 10.

1515/eplj-2013-0003 EPLJ 2013; 2(1): 22–53

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DCFR,3 and to particular national reform agendas.4 In such projects, compara-

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of argumentation analysis. The latter approach,8 developed by a working group

8 A comprehensive outline of the methodological approach, including an analysis of the present

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II. Outlines of the two approaches

The traditional functionalist method of comparative law, as promoted by Zweigert

We will get back to some of these steps in the subsequent discussion.

B. The argumentation analysis approach

Since the argumentation analysis approach referred to in this article can in no

10 Instead, see the literature quoted in fn. 6.

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4. Micro analysis of single arguments

1. Segmentation of the discourse into typical “conflict situations”

16 See Faber and Lilja, (2012) 1 EPLJ 10 (Chapter IV.B.1).

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particular, with regard to issues elsewhere in Europe classified as a “transfer of

Each such conflict situation is perceived as a separate issue, to be solved indepen-

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The advantage Scandinavian lawyers see in this kind of structuring problems is

2. Identifying “main categories” (clusters) of argumentation

A second level of analysis suggested by the argumentation analysis approach is

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3. Reconstruction of argumentation in argument surveys as suggested by

21 See Faber and Lilja, (2012) 1 EPLJ 10 (Chapter IV.B.2).

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a Næss-like argument survey can also be helpful when analysing arguments

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P1C1C1P1P1: The acquirer’s (C’s) bad faith is difficult to prove.30

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4. Micro analysis of single arguments

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– “rules of critical discussion”, as formulated by many argumentation theor-

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Argument C1C1P1P1 can thus be reconstructed and diagrammed as follows:

Diagram 1: Toulmin model of argument C1C1P1P1.

Dissecting a particular argument into its different elements proves to be a useful

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different interpretations of an argument the arguer really wants to advance.43 In

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III. Instances where functional comparative

Also, it has been noted that “equivalence functionalism provides surprisingly

48 Husa, (2003) 67 RabelsZ 419 (at 422 and passim).

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A. Shaping the tertium comparationis

In order to make solutions adopted in different legal systems comparable, “[t]he

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However, starting closer reflections on how to formulate the functional questions

B. Choice of legal systems, acceptance of dogmatic

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advantages of their traditional approach. To a certain extent, argumentation

promoting a unitary approach to ignore the substance of the criticism.