Learning with cases (part 3) – the subsumption technique

Law for beginners and non-lawyers

Flirting puts you in a good mood. And it doesn’t require much talent at all, at most a little practice. It is similar with law: Knowledge alone is not enough. You also have to be able to apply it. Learning with cases helps here. Part 3 shows, How to master the subsumption technique.

If you study law, you will occasionally be allowed to solve more or less extensive cases. The last article "Learning with Cases (Part 2) – Getting started with case solution" already dealt with the steps that make sense to follow. Very important: a case is to be thought through starting from a legal basis (it is best to make a solution sketch for this as well). It is necessary to check whether the relevant paragraphs fit – or not in each case.

And how does it work with the checking now quite concretely? A certain approach has been established for this as well. It is called the subsumption technique. Which, by the way, works quite independently of the field of law. So it applies in private law as well as in public law or in criminal law. And precisely because it is used everywhere, the subsumption technique is a basic legal tool. So when it comes to solving cases, you can’t avoid dealing with them.

Those who are familiar with the subsumption technique have it good, because one

  • have to understand the principle only once (and then can apply it again and again).
  • Has a reliable exam procedure at hand to navigate through a case solution
  • can find convincing legal justification (instead of making mere assertions)

Tools are only useful if you know what they are for. (Jerome Anders)

Subsuming in four steps

Subsuming is essentially about the following: One looks, how an applicable regulation on the one hand and the given facts on the other hand relate to each other. Is the regulation relevant or not? Does the legal consequence? These are – formulated somewhat unjuristically – the central questions. The subsumption technique is used to find this out.

You probably know: the legal consequence of a norm always occurs automatically when the respective facts are fulfilled. This shows once again how important it is to distinguish between facts and legal consequences (if you want to read more about this, you will find more in the article "Cracking laws like Houdini").

In the actual examination, the work consequently concentrates on the elements of the offense and the individual elements of the offense (if there are several). This is simply examined in four steps by means of the subsumption technique.

Step 1: Name the constituent element

As I said, it is always a matter of examining a concrete factual feature. If a regulation only has a constituent element, then it is comparatively simple. If a norm has several elements of fact, then you have to look at each one separately. For this purpose, it is necessary to first name the factual element to be examined. The reason: Readers of the expert opinion should know what it is all about. One must tell them therefore first of all, which factual characteristic is just pending. This step is very simple: You only have to name the element you want to check. For this, however, one does not write: "I will now examine the constituent element xy". One rather uses a special way of formulation (the expert opinion style, for which there will be a special post next week)

Example: If one examines, for example, a claim of A against B for transfer of ownership of a book, then § 433 Abs. 1, sentence 1 BGB is the correct basis for a claim. There it says: "By the sales contract the salesman of a thing is obligated to hand over the thing to the buyer and to provide the property at the thing."The obligation to hand over the thing to the buyer and to procure the ownership of the thing is the legal consequence. This occurs automatically if the facts are fulfilled. The constituent element is the "contract of sale". One could therefore name the constituent element as follows:

Formulation example:

"There should be a contract of sale between A and B".

Step 2: Explain the elements of the offense in legal terms or. define

A factual characteristic is usually an abstract legal concept. One cannot always imagine something under it immediately. Therefore, in a second step, one has to explain the constituent element in legal terms. For certain terms there are even fixed definitions (which you should ideally have).

A legal explanation of the just mentioned factual feature B "sales contract" could for example look as follows:

Formulation example:

"A contract of sale is concluded – like any other contract – by two concurrent declarations of intent, application and acceptance (§§ 145 et seq. BGB), which are aimed at the transfer of ownership of the object of purchase."

Tip: With the legal discussion / definition may (and should)!) one may of course make use of the many auxiliary norms that the law offers in such a way (here it is z. B. the §§ 145 ff. BGB). This gives the argumentation a more solid foundation.

Step 3: Subsuming the facts under the constituent element

After the second step, the reader of the expert opinion knows what is to be understood by a certain constituent element in general. However, it remains to be seen how the legal aspect relates to the concrete case. Is the constituent element fulfilled or not?? This is where subsumption comes into play as the third step. It is so elementary that it has also given the subsumption technique its name.

Often it works out unproblematically ..

In subsumption, one now does the following: One looks whether a fact contains concrete information that fits the abstract legal explanation/definition. In the example, one would have to see whether A and B have made the corresponding declarations of intent. When you find something … hits! One can then z. B can be formulated as follows:

Formulation example:

"As can be seen from the facts of the case, B has asked A whether he would like to purchase the book. A answered with ‘Yes."

Important! Here the very concrete work with the facts is required!

… sometimes you have to look more closely

Not always can be subsumed immediately. Sometimes you have to go one level deeper. In the example above, this would be the case, for example, if not B himself but his deputy C has made a declaration of intent. Then one must first check whether the prerequisites for representation are fulfilled (§ 164 BGB contains three further elements of fact for this: a) making one’s own declaration of intent, b) on behalf of another, c) with power of representation). These would have to be examined first still separately. If such "problems" arise, one can for example formulate as follows:

Formulation example:

"As can be seen from the facts, B himself has not made any declaration of intent. However, C could have made a declaration of intent as a representative, which then acts for and against B (§ 164 BGB). In this case, C must first have made his own declaration of intent (Step 1 = factual feature named). A person makes his own declaration of intent who does not merely transmit as a messenger another person’s declaration of intent (Step 2 = fact feature explained/defined). As can be seen from the facts .. (Step 3 = Subsumption)".

Of course, there may be other legal problems than a proxy. A fact will always offer corresponding signals, which one should take up as far as possible – it is thus again like with flirting. You just have to know how to interpret these signals, then find the appropriate legal regulations and try to question both using the subsumption technique.

Step 4: Record the result

If one has examined a factual characteristic, then at the end there is a result. This can only read: The constituent element is fulfilled (because the facts offered appropriate information for the subsumption) or it is not fulfilled (because the facts did not offer appropriate information for the subsumption). Here you have to show your colors: Yes or No? There is nothing in between.

"Therefore, there is a contract of sale".

"According to this, C has made his own declaration of intent".

Tips for the learning strategy

Anyone dealing with the subsumption technique, especially as a beginner, should consistently go through all four steps. This minimizes the risk of overlooking something important. It is a good idea to keep an eye on step 3 – the actual subsumption. It is always the heart of the matter. Here one can make neat points (or give away). Whoever succeeds in exploiting the information of a circumstance is on the right track. This requires appropriate thought work. Jurisprudence does not work like a baking machine at the discount store, where at the push of a button the result is a fragrant bread roll.

Moments of Success

  • Working with the facts brings new insights
  • The application of law succeeds increasingly better
  • Subsuming becomes more and more a matter of course

The most important thing at a glance

At a glance: The Subsumption Technique

And how are your own experiences with subsumption? You know others who may benefit from the suggestions? Then share the post with friends.

You might also be interested in this:

    by Andre Niedostadek Flirting is fun. And it doesn’t require much talent at all… by Andre Niedostadek Flirting puts you in a good mood. And it does not require much talent at all.. by Andre Niedostadek Flirting is fun. And it doesn’t require much talent at all..

Author: Andre Niedostadek

Learning with cases (part 3) - the subsumption technique

Andre Niedostadek is professor for business, labor and social law at the Harz University of Applied Sciences and business mediator. A question that is currently bothering him as a university lecturer, speaker& Author ponders: How will we live, learn, work in the future? Here on Science Tower he writes in particular on the topics of law, study and changes in the world of work.

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