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universul juridic magazin

Theoretical and practical issues regarding conversion of the civil legal act

Conversion of the civil legal act represents a legal concept whose theoretical approach does not currently benefit from the magnitude of jurisprudential applications which it incorporates. The practice of courts indicates a certain degree of relaxation in the interpretation and implementation of the conditions of conversion, an unjustified circumstance given the purpose of conversion – that of eliminating from implementation the sanction of the invalidity of the legal act – and its (apparent) independence towards the will of the party/parties of the converted legal act, both aspects pleading for the exceptional nature of the operation subject to debate.
The study proposes, firstly, an assessment, from a critical perspective, of the legal fundament and the conditions of conversion, as developed by the specialty literature and legal practice with reference – in case of the domestic legal environment – to the Civil Code of the year 1864. The study concludes with the idea that at the basis of the conversion lays the presumed will of the party/parties of the converted legal act, a will outside which the efficiency of a legal act can not be interpreted as voluntary source of tangible legal relations. Thus perceived, the operation of conversion acquires a tripartite structure similar to that encountered in case of simulation.
Once identified, the conditions of conversion then facilitate the delimitation of such operation of institutions that present a fundament, a structure or similar effects. The applications of conversion, identified by the doctrine based on the texts of the previous Code, are critically analyzed, along with certain aspects of intertemporal law and private international law correlated with this legal concept.
Equally – as the temporal context imposes – are submitted to the critical review the provisions (this time, expressly) from the area of the conversion included in the enforceable Civil Code, the study concluding with respect to these aspects that, excepting some nuances regarding the legal fundament, the conversion still remains a concept mainly of doctrinaire and praetorian nature, the theses formulated regarding the conversion based on the previous Code being a topical subject.