Argumentation Analysis in the Field of Transfer of Movables

The international discourse regarding the transfer of ownership of movable property and additional forms of "original" acquisition, like bona fide acquisition from a non-owner and acquisitive prescription, has been intensified enormously throughout the recent years, in terms of comparative legal research as well as, partly, with a perspective towards a possible harmonisation in the EU area. The solutions provided in the various national legal systems differ to a great extent, as will be well-known to each property lawyer, at least as to the essential basics. Due to these different traditions and the complexity of a transfer of ownership, which affects the parties` as well as third parties` interests, a wide range of arguments may (and is) put forward for different solutions, but these arguments often address totally different levels and are related to different interests and do not attack each other directly. A closer look also reveals that argumentation partly remains incomplete and non-transparent, which complicates weighing the arguments against each other. Therefore, accepting the standpoint of other arguers is impeded and a consensus is hardly achieved. This project will, on the one hand, establish a detailed comparative legal survey of relevant argumentation put forward in German, Austrian, Dutch, French, Belgian, Swedish, English and US-American legal literature and court practice and in the current harmonisation debate. The main aim, on the other hand, will be to structure, analyse and evaluate this argumentation in order to make the international property law discourse more complete and more transparent. This will be achieved by employing methods and tools developed in the discipline of argumentation theory. Based on approaches mainly developed by Kopperschmidt, Toulmin and Naess, argumentation will be reconstructed and analysed in a five-step process of macro and micro analysis and evaluation. One of the basic methodological choices is to dissect the question of "the passing of ownership" into single typical "conflict situations" (e.g. the buyer`s protection against the seller`s general creditors; sold goods being stolen or damaged by a third party between the time of the conclusion of the contract and delivery; entitlement to use sold goods within this period, etc.), as already practiced in Scandinavian and US law, which employ a so called "functional approach" in personal property law (in contrast to the "unitary approaches" followed in continental European countries, which provide rules for determining one moment in time for the "passing of ownership" with all consequences). This shall ensure to identify and take into account (only) those arguments which are of particular relevance in the respective conflict. The goal is to create a detailed and comprehensive survey and analysis of relevant argumentation in the international discourse, which may, apart from its academic value, be of immediate relevance for law makers, courts and practicing lawyers. The project`s innovative methodological implications may also make a contribution to argumentation theory as such.

In the recent years, international and national discussions on how to determine an optimal content of legal rules related to the transfer of property of corporeal movable assets has been intensified enormously in Europe. Yet, this discourse suffers from a number of deficits: Due to the different traditions and solutions adopted in the various legal systems and the complexity of a transfer of ownership which affects the parties as well as third parties interests a wide range of arguments may be (and is) put forward for different solutions, but these arguments often address totally different levels and are related to different interests and do not attack each other directly. A closer look also reveals that argumentation partly remains incomplete and non-transparent, which complicates weighing the arguments against each other. Therefore, accepting the standpoint of other arguers is impeded and a consensus is hardly achieved.The projects main aim, therefore, is to enhance this discourse by offering new methodological tools to overcome (or, at least, mitigate) these shortcomings and help to make the discourse more structured, more transparent, and more complete. For this purpose, methods and tools developed in the discipline of argumentation theory have been tested and combined to a method of argumentation analysis which specifically fits to being applied to the international property law discourse regarding transfers of movables. This method builds, among others, on approaches developed by Kopperschmidt, Naess, Toulmin, and representatives of the pragma-dialectical theory of argumentation. In essence, a five-step process of macro and micro analysis plus evaluation is suggested. One of the basic methodological choices is to dissect the question of the passing of ownership into single typical conflict situations (e.g., the buyers protection against the sellers general creditors; the sellers protection against the buyers general creditors; the conflict between the original owner of goods and a good faith purchaser who bought the goods from a non-owner), as already practiced in Scandinavian and U.S. law (functional approach). This ensures to identify and take into account (only) those arguments which are of particular relevance in the respective conflict. The five steps of analysis suggested are: 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 Næss; 4. micro analysis of single arguments (including Toulmins model of argument and various rules of critical discussion & related fallacies as identified in argumentation theory); 5. final evaluation.This method has been developed and applied to arguments advanced in the said discourse on transfers of movables. In addition, potential mutual contributions between this method and the functional method in comparative law have been explored, and the law and related arguments in various countries have been discussed with the perspective of both making this material available to a broader international audience and making suggestions to further improve and develop the law.