Page - 96 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 96 approach, ie, (national) property law. In the present section, we will prepare for moving a step further. As outlined above, we believe that the functional approach can also provide an appropriate methodological framework for dealing with cases where national property law is confronted with potentially opposing norms of EU consumer contract law. In order to demonstrate this – while at the same time making the approach a useful tool for everyone – in this section we will describe how the functional approach can be used, by providing a kind of step-by-step instruction. Since there is not one ‘official’ functional approach upon which lawyers have agreed in terms of a general working method, the steps we suggest here are our own creation. We do, however, believe from our experience that these steps, or at least a similar description of the working process, would in essence meet with consensus among functionalist lawyers.40 Step 1: Keep the relations between different parties apart and decide which relation should be dealt with first, without classifying them as a specific concept-linked type of legal relationship. With a functional approach, the relations between different parties should be kept apart from each other. By dealing with each relation on its own it is easier to identify whether, and to what extent, there is a conflict between the parties of a specific relationship. This also helps – at later steps within the problem-solving process – to focus exclusively on aspects that are relevant for the specific relation at hand. We suggest not only to keep different party relations apart, but also to avoid immediately classifying these single party relations in terms of specific dogmatic concepts. Such a categorisation, for instance as a matter of sale, proprietary security, or tort, may of course be important for legal understanding, analysis and problem-solving, but the closer classification can take place at a later step. The point is that by keeping the classification open for the time being, preconceptions that easily follow from such classifications are kept at bay. Concepts connected to such a classification do not exert a decisive influence over the perception of the issue. Concepts should not influence more of the process than what has been thought through. Step 2: Identify the ‘real problem’ in the relation. After deciding what relation to deal with, the second step is to analyse what the conflict consists of. The conflict, first, always relates to a specific set of facts, i.e., the situation in which the parties are placed when the legal problem needs to be solved. Second, the interests of the parties need to be made clear. This involves the result a party wants to achieve and why this is the case. Third, it is important to pinpoint to what extent the different interests collide. The ‘real problem’ is this collision of interests. Again, to identify this real problem, the lawyer needs to think beyond the legal concepts that are regularly used to communicate. If concepts such as ‘ownership’ should happen to occur in the communication, they should be seen as relational and relative in terms of priority over the other party. This functionalistic scepticism towards legal concepts is, once again, useful to avoid the concepts influencing the analysis. It is the conflict of interests that needs to be dealt with. By not using a starting point where one party’s position is defined by a legal concept such as ‘the owner’, it is easier to understand what the real problem is, and it is easier to solve without giving one party a preconceptual advantage. Step 3: Identify everything that is relevant to construct a solution, and make arguments out of all relevant aspects. 40 Compare the ambition in Martinson, in RULES FOR THE TRANSFER OF MOVABLES, supra note 25.