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. IntroductionIf 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
|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____________________
Questia, a part of Gale, Cengage Learning. www.questia.com
Book title: Examining the Law Syllabus:The Core.
Contributors: P. B. H. Birks - Editor, Society of Public Teachers of Law (London, England) - OrganizationName.
Publisher: Oxford University.
Place of publication: Oxford.
Publication year: 1992.
Page number: 55.
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