Examining the Law Syllabus: The Core

By P. B. H. Birks; Society of Public Teachers of Law (London, England) | Go to book overview

9. The Teaching and Application of Fundamental Concepts of Commercial Law
ROY GOODEThis is an occasion both of sadness and of pleasure: sadness that a distinguished teacher of law, who was Vice President of the Association of Law Teachers from its foundation in 1965, is no longer here to share with us his wisdom and knowledge, to infuse us with the warmth of his personality; pleasure, in that you have done me the honour of inviting me to deliver this special memorial lecture in tribute to a fine scholar who was my colleague and my friend. Clive Schmitthoff was a man of many parts: a scholar of world renown whose contribution to the development of international commercial law is beyond measure; a fine teacher with a legendary devotion to his students, many of whom became his protégés and advanced their careers through his constant encouragement and support; a barrister with a consultancy practice whose Opinions were highly valued for their combination of analytical rigour and practicality; the founder and, for forty years, sole General Editor of the Journal of Business Law; and one of the pillars of this Association. Loyally supported by his wife Twinkie, herself a lawyer, Clive lived for the law in all its manifestations. His prodigious energy continued to the very end of his long life. Indeed, as he approached his ninth decade his output, far from falling away, seemed, impossibly, to increase, as if he were driven by some inner fire to complete the many formidable tasks he had set himself while his strength held out.In his early eighties Clive, unable to abandon the delights of the classroom, devised a new LL.M. course on the law of international trade which we taught together at Queen Mary College. As always, he captivated the students, who flocked to his lectures. Teaching was one of his great loves, and it seemed a fitting tribute to Clive to devote this memorial lecture to some reflections on the teaching of commercial law, to which he contributed so much.
I. Introduction
If there is a 'right' way to teach commercial law I have yet to discover it. Law teachers do not even have a common view as to what is encompassed by the expression 'commercial law'. For my purposes commercial law consists of those principles and rules, from whatever branch of law they may be drawn, which relate to dealings between merchants (including financiers) for the supply of goods and services in the way of trade. Such a definition sets certain parameters. As thus conceived commercial law is essentially transactional, or dynamic, rather than institutional, or static, thus marking it off from a substantial part of company law. It concerns dealings between professionals, so that consumer transactions, which typically are the subject of lex specialis, fall outside its scope. As a corollary, it involves substantial numbers of repeat players, who establish standard terms of contract and unwritten usages of trade. Finally, it is centred on private law rather than on public economic law.But even within these boundaries the focus of commercial law varies from teacher to teacher. Those who have a particular penchant for the law of property will perceive commercial law as essentially property-based, with the emphasis on personal property; contract lawyers, by contrast, will concentrate on the express and implied undertakings of each party to the other and remedies for breach; yet another tack will be taken by tort specialists, for whom the primary aspects of commercial law are product liability and claims for interference with goods. And restitution as a subject has now become so pervasive that it would no doubt be quite feasible to structure a commercial law course around principles of restitution.My present concern is not with the detail of a commercial law course but rather with the general approach of the teacher of the commercial law. In particular I wish to examine four questions:
1. What factors influence the content of a commercial law course?
2. At what level of abstraction is the course taught?
3. On what raw materials do we draw to develop our own and our students' understanding of the concepts of commercial law?
4. What do we see as the primary purpose of a commercial law course?

I shall then discuss some general lines of approach and conclude by looking at some of the difficulties confronting the teacher of commercial law and some

____________________
A memorial lecture for the late Professor Clive Schmitthoff delivered at the Annual Meeting of the Association of Law Teachers in Nottingham on 4th April 1991.

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