of three answers –
a definite “yes,” a definite “no” or a “maybe”.
555
This
natural triage for applying law is the foundation of a simple and easy to
understand process.
Definite “Yes”
One possibility is that the element definitely applies to one of the facts – the
fact falls within the category designated by the element. In this case the answer
is “yes” so the element is satisfied. This is the end of the line for the element -
there is nothing more to be done with it. Proceed, therefore, to the next
element.
Definitely “No”
A second possibility is that the element definitely does not apply to one of the
facts. The answer is “no”. In this case the element is not satisfied. This is the
end of the line for this element also - there is nothing more to be done with it.
Since a plaintiff has to satisfy all of the elements of a cause of action to win it,
the plaintiff will fail. In principle there is no need to proceed further since the
cause of action seems doomed due to one element not being satisfied.
However, if this eventuality arises
early in proceedings when the whole case
has not crystallised, it may be that the facts are incomplete or indeterminate. In
this case it is premature to conclude absolutely that the cause of action is not
available.
“Maybe”
There can be
doubt as to whether the element is satisfied, so in this case the
answer is “maybe”. Since there is doubt about whether an element is satisfied
by the facts, there must also be doubt that the whole rule applies to the facts
(unless the element in doubt is one of several possibilities).
Where there is this doubt, there is an issue involving a question of
interpretation, the issue arising because the element is ambiguous. In this case
it is necessary to interpret the element. The “maybe” arises because according
to at least one meaning of the ambiguous provision the element applies to the
facts, and according to at least one other meaning it does not apply. This
uncertainty is resolved by interpretation. It determines which meaning is
correct and thus turns the indecisive “maybe” into a definite “yes” or “no”.
Interpretation, therefore determines conclusively, one way or the other,
whether the element does or does not apply to the particular set of facts.
555
It would be inappropriate not to point out or remind readers that Samuel
Goldwyn, the legendary Hollywood film producer allegedly answered a question
with: “I will give you a definite maybe”.
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