A bar exam question asks whether an electric post is real or personal property. The bar examinee answers that it is personal property because an electric post is not included in the enumeration of real property under Article 415 of the Civil Code.
The fallacy of the argument is clear. The examinee here failed to distinguish a universal or general term from a particular or specific term. One can hardly expect the specific term “electric post” to show up in the enumeration in Article 415 which like any law is couched in general terms. For example, a railroad track is also not mentioned textually in Article 415 but it would be a stretch to argue that it is personal property. That an electric post is indeed personal property does not detract from the faulty or weak nature of the argument.
The proper and compelling argument would be to cite the rule that a thing which is not attached in a fixed manner to an immovable and can be separated therefrom without injury is personal property and then proceeding to apply that rule to an electric post by pointing out that an electric post is not attached in a fixed manner to the land and can be separated therefrom without injury.
A law school examination poses the question of whether being pregnant out of wedlock is a ground for preventive suspension of an employee. The student answers that it is not because under the Labor Law, pregnancy out of wedlock is not among the grounds for preventive suspension of an employee. Under the Omnibus Implementing Rules of the Labor Code, an employer may preventively suspend an employee “if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.” Again it’s a weak or fallacious argument that since “pregnancy out of wedlock” is not mentioned textually as a ground for preventive suspension, then it cannot be a ground for such. The cogent argument is that such pregnancy does not pose a serious and imminent threat to the life or property of the employer or of the co-workers.
Arguments derived from textual exclusion also often partake of a negative-shotgun argument. This could give the impression to the examiner of a lazy way of analyzing bar exam problems. On the other hand, precisely crafted arguments would impress the examiner and significantly up the examinee’s chances of getting the examiner’s nod.
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