Omitted Facts
It was said above that the facts are to be treated as the truth. But while they are
the truth, they may not be the whole truth, because some relevant facts may
have been omitted. They may have been omitted accidentally or deliberately.
Whatever the case, if relevant facts have been omitted you should do three
things in your written answer:
(1)
Indicate that facts have been omitted.
(2)
State all reasonably possible versions of the omitted facts.
(3)
Indicate the legal consequences of each version.
Here your task is analogous to that of a lawyer who has listened to a client's
story. The
lawyer
has to identify the gaps in the story, appreciate their
significance and ask questions to fill them. In a problem you cannot fill the gap
with a definite set of facts. Therefore you have to deal in possibilities. To
return to our comparison, a lawyer
has to see the gap, the possibilities and
their consequences before they can ask a question. One of their skills is to be
imaginative in facts as well as versed in law. In this the lawyer is not working
from the facts to their legal consequences, but in reverse, from the legal
consequences back to facts that could support them.
Facts as Inferences
Facts may be
inferences. It is obvious that when we
convey information to
others we sometimes do not give our message as
raw data. Instead we use
inference and generalisations. We interpret what we see, and pass on a mixture
of fact and interpretation. It is almost inevitable then, in written or spoken
communication, that some part of what is said is inference, not basic facts.
Similarly, in a problem question there are frequently facts that are inferences,
and sometimes it is
necessary to go beyond the inferences to the facts from
which the inferences were made. If this occurs, it is merely a special case of
omitted facts. Deal with it on this basis, and point out that you have inferences
to deal with, not the more basic facts from which they arise.
A special case of inference is the use of indirect or reported speech, instead of
direct speech. For example, you may be told "Malcolm put an advertisement
in the paper offering $20
for the return of his parrot John”. In direct speech,
the advertisement probably read: "Lost, pet parrot named John. Reward of
$20 to
finder”.
What is the problem with having indirect speech instead of
direct speech? The problem is that in many cases one needs the exact words
used by the parties in order to determine their legal effect. For example, in a
contract problem involving this advertisement ideally you should have the
exact words of the reward to determine two things, (i) whether the reward
constitutes an offer, and if so (ii) what are the express terms of the contract,
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