Page - 93 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 EU Consumer Contract Law Directives and Ownership 93 environment of buyers and sellers had material effect upon it. It remains, in the sales field, an alien lump, undigested. It even interferes with the digestive process.”30 The quote, at least, illustrates the view that the concept of ownership should not be used for solving a great variety of legal issues involving different interests and different parties, in particular in transfer situations. When the rules for the transfer of ownership were designed, they were usually not tailored to perfectly solve all the issues that can possibly be linked to them. The quote, however, can also be read in the sense that the concept of ownership should not be used for deducing legal consequences at all. Considering both interpretations of the text above, another tool must be used for construing legal solutions. This tool – the ‘real issue’ – is addressed in the subsequent paragraph. But first we would like to reiterate that what we have previously stated does not, from a functionalist point of view, mean the term ‘ownership’ should necessarily be avoided or has no meaning whatsoever.31 The functionalist approach simply entails that the concept of ownership is a relational and relative concept. If a legal solution to one legal conflict means that one party wins against the other, this could be described through the winner having or getting ‘title’, or them being awarded ‘ownership’. However, it is important to note that this use of the concept means nothing more than the winner having priority over the other party. It does not mean that the winner gains a better position against any other possible party who claims priority on another legal ground.32 Instead of linking the solution of a conflict to the question of who has ownership, the idea is to deal with each issue on its own merits.33 To do so, it becomes necessary to identify what the real problem of the case is. Functionalist lawyers often do this without much reflection and without specifically labeling the process, but when explaining this part to lawyers from other legal traditions, the term identifying the ‘real issue’ can be used.34 The real issue, or the real problem, can be defined by identifying the typical interests that two parties typically have in the type of conflict at hand. This can be viewed as another side of the idea not to involve the ownership concept in the problem-solving as such: By identifying the typical clash of interests in the type of situation at hand, concepts are not used to define the issue. They become mere tools for communication and are understood in relation to the real issue. To illustrate what this means we will use two examples: Example 1: A seller (A) sold his car to a buyer under the condition that the car should “fall back to” the seller if the buyer did not pay the remaining price in time. The buyer (B) did not pay, but he sold the car to another buyer (C). Since the first seller (A) then understood the risk that the first buyer (B) would not pay, he sued the second buyer (C) to get the car back. 30 Karl Llewellyn, Through Title to Contract and a Bit Beyond, 15 New York University Law Quarterly Review 159, 169 (1938). 31 To avoid any possible misunderstanding: ‘ownership’ (or ‘title’) does remain an important concept in the legal thinking in both the United States and in the Nordic countries. 32 See, e.g., HENRIK HESSLER, ALLMÄN SAKRÄTT 18 (1973). Compare David Frisch, Remedies as Property: A Different Perspective on Specific Performance Clauses, 35 WILLIAM & MARY LAW REVIEW 1691 (1994). 33 See, for instance, Torgny Håstad, Derivative Acquisition of Ownership of Goods, 17 EUROPEAN REVIEW OF PRIVATE LAW 725 (2009). 34 See, e.g., Martinson, 22 JURIDICA INTERNATIONAL 16, supra note 25.