Conversion

(a) Traductio unius negotii in alterum (ius commune)

The other device is usually referred to as "conversion" (re-interpreta- tion). The modern term goes back to a dissertatio iuridica inauguralis "de eo, quod iustum est, circa conversionem actuum negotiorumque iuridicorum iamiam peractorum" by the German scholar Christian Ferdinand Harpprecht, written in 1747.^[3448] In this inaugural dissertation he defined conversio as "traductio vel commutatio unius negotii in alterum pro obtinendo et salvando fine necessaria, actui et intentioni agentis conformis":⁴⁶ a transformation of one legal act into another, which is necessary in order to achieve and to save the aim of the transaction and which is in accordance with both the action and the intention of the acting party.

This concept of "conversio" is based, interestingly, on the transsubstantiation doctrine of the Catholic Church, as laid down in the 4th Chapter of the Decretum de Eucharistia by the Council of Trent (1545-61):

"... per consecrationem panis et vim conversionem fieri totius substantiae panis in substantiam corporis Christi Domini nostri, ct totius substantiae vini in substantiam sanguinis eius. Quae conversio convenienter et proprie a sancta catholica Ecclesia transsubstantiatio est appellata."⁴⁷

In the course of the 19th century the conversio actus iuridici became a generally accepted device for upholding invalid legal transactions in another form, ⁸ and was taken over into several of the modern codifications.⁴⁹ Thus, for instance, the BGB (§ 140) determines that if an invalid legal transaction satisfies the requirements of another legal transaction, the latter is effective, provided that it is covered by the hypothetical intention of the parties.³⁰ It is obvious that conversion and interpretation are very closely related to each other; in fact, it has been argued that we are not dealing here with distinct and separable legal techniques, but with a problem of (re-)interpretation (so that, ultimately, special rules such as § 140 BGB would be redundant when viewed against the general rules of interpretation).⁵¹ Whether or not this view can be accepted as correct depends, of course, on how far one is prepared to take the notion of interpretation⁵² and on how one perceives what actually takes place in the process of the "conversion" of a legal act: is there really a transformation (as Harpprecht would have it) from one thing into another, i.e.

a judicial remodelling of the transaction, or does the judge, by uncovering a hidden side contained in it, uphold the act as it is, but from a different perspective?⁵³

(b) Conversion in Roman law?

The Roman lawyers, as may be expected, did not bother with these subtle dogmatic distinctions. Nevertheless, they provided the casuistic basis for the modern doctrines. For, although they neither developed a specific set of rules nor knew the term "conversio", the problem was well known to them. The Digest contains a variety of situations, where ineffective legal acts are upheld by way of (as we would call it) conversion.⁵⁴ The best-known example is the one discussed in

Krampe, op. cit., note 45, pp. 83 sqq.; Giuseppe Gandolfi, "La nozione pandcttistica di 'conversione' a] vaglio della giurisprudenza tedesca dell' ottocento", in: Sodalitas. Scritti in otwre di Antonio Guarino, voi. Vili (1984), pp. 4053 sqq.

⁴" Krampe, op. cit., note 45, pp. 123 sqq.; Giuseppe Gandolfi, "П concetto moderno di 'conversione' e la sua genesi legislativa", in: Studi in odore di Arnaldo Biscardi. vol. II (1982), PP. 551 sqq.

For details cf, e.g., Mayer-Maly, op. cit., note 31, § 140, nn. 1 sqq.; Hager, op. cit., note 32, pp. 115 sqq., 154 sqq.; Giuseppe Gandolfi, "Introduzione allo studio del concetto legislativo di 'conversione'", in: Studi in on ore di Cesare Sanfilippo, vol. VI (1985), pp. 319 sqg.; idem. La conversione deli' atto invalido. IImodel to germanico (1984), pp. 101 sqq., 145 sqq.

’ Krampe, op. cit., note 45, pp. 286 sqq.

⁵² Cf. e.g. Seiler, (1984) 184 Archil' fiir die civilistischt Praxis 186 sq. In this respect the problem of what is usually referred to as "ergdnzende Vertragsauslegiing" is of particular relevance. May the courts fill gaps in the contractual arrangements on the basis of the hypothetical will of the parties (and thus do for the individuals "what they would have done for themselves, if their imagination had anticipated the march of nature": Jeremy Bentham, "A General View of a Complete Code of Laws", in: John Bowring (ed.) Works (1843), vol.

П1, p. 191) or do they have to stick to their real intention? Cf. generally Alexander Liideritz, Austeyuno von Rechtsqeschqfien (1966), pp. 386 sqq., 392 sqq.; Flume, AT. pp. 321 sqq.

" Windscheid/Kipp, §82, 5.

³⁴ CC. generally Vincenzo Giuffre". L'utitizzazione degli atti gittridid mediante 'conversione' in diritto romano ( 19651. pp. 107 sqq.

D. 29, 1, 3.⁵⁵ Here a soldier had intended to make a will "communi iure", but he died before the document had been duly signed by the required number of witnesses. Under the general rules of the ius civile, a regular testamentum per aes et libram could not have come into existence under these circumstances. According to Ulpian, the testator's act is, however, valid as a soldier's will (testamentum militis), which was exempt from all formalities. But the desire to uphold invalid legal acts under different auspices was not confined to the law of testamentary dispositions.⁵⁶ In the field of contract we have, for instance, Ulp. D. 46, 4, 8 pr.: "An inutilis acceptilatio utile habeat pactum, quaeritur: et nisi in hoc quoque contra sensum est, habet pactum."⁵⁷ Acceptilatio was a transaction by which a debtor could be formally released from his obligations under a contract verbis.⁵⁸ It was actus contrarius to the stipulation of classical law⁵⁹ and subject to the same formal requirements. "Quod ego tibi promisi, habesne acceptum?"^6u was the question of the promisor, whereupon the stipulator had to answer "Habeo". If it did not comply with these formalities, the acceptilatio was invalid. The question arose, therefore, whether the transaction could not be seen as containing an informal pactum de non petendo, which would at least allow the debtor to defend himself against his creditor's claim by way of raising an exceptio pacti. Ulpian's answer is in the affirmative and this appears, indeed, to be a sensible solution, in view of what both parties had primarily intended.

After all, by the time of classical law even formal acts such as stipulations (or acceptilationes) had to be founded on an agreement between the parties. Thus, "inutilis acceptilatio utile habet pactum" was based, essentially, on a (re-) interpretation of the contract according to the principle of "id quod actum est'¹;⁶² hence the limitation contained in the "nisi in hoc" clause, hence also, particularly, the statement of Paulus in D. 2, 14, 27, 9: "Si acceptilatio inutilis fuit, tacita pactione id actum videtur, ne peteretur." Since a formal release had failed, the parties could be taken to have intended a pactum taciturn⁶³ (de non petendo).

^s Giuffre. op. cit.. note 54. pp. 175 sqq.; Krampe, op. cit.. note 45. pp. 64 sqq.

^s Cf. Giuffre". op. cit.. note 54. pp. 207 sqq.

³⁷ On this text cf. in particular Christoph Krampe. "An inutilis acceptilacio utile habeat pactum, quaeritur—D. 46. 4. 8 pr. (Ulp. 48 Sab.l". (19851 53 TR 3 sqq.

Kaser. RPr I. p. 641; Honsell/Mayer-Maly/Selb. p. 265; Alan Watson. "The Form and Nature of'acceptilatio' in Classical Roman Law". (19611 8 RIDA 391 sqq.: cf. also infra, pp. 755. 756.

^s Knutel. Contrarius consensus, p. 9; idem. "Zum Pnnzip der formalen Korrespondenz im romischen Recht". (19711 88 ZSS 87 sqq.; Detlef Liebs. "Contrarius actus. Zur Entstehung des romischen Erl ass Vertrags", in: Sympotica Franz Wieacker (19701. pp. 131 sqq.

® Gai. 111. 169.

^a Cf. supra, pp. 510 sq.. 565. 627 sq.

Krampe. (19851 53 TR 16 sqq.

For details. see Andreas Wacke. "Zur Lehre vom pactum taciturn und zur Aushilfsfunktion der exceptio doli". (19731 90 ZSS 220 sqq.. 254 sqq.

But there are other decisions where an invalid transaction was upheld without specific reference to id quod actum est and where it therefore remains a matter of speculation whether the Roman lawyers themselves viewed this kind of operation as a question of interpretation or of conversion in the modern sense.

Paulus D. 38, 1, 39 pr. is a case in point.⁶⁴ According to the lex Aelia Sentia, patrons were not allowed to bind their freedmen to pay money rather than to render services;⁶⁵ such promises were regarded as an objectionable restriction of the freedman's liberty. The patron was, however, able to obtain a stipulation in the alternative ("certum operas aut in singulas HS quina milia dari?")/'⁶ for here the freedman could avoid payment of the promised sum by rendering the services. But what about a stipulation such as "si decern dierum operas non dederis, viginti nummos dare spondes?" We are dealing here with a non-genuine penalty clause: the freedman has promised the money, albeit only in case he does not provide ten days' work. The work as such has not been stipulated for; it is merely in condicione. Strictly speaking, therefore, the transaction is invalid. Effectively, however, the stipulatio poenae gave the libertus the same option as the alternative stipulation: provided he did the work, he did not have to pay. Hence the attempt to save the transaction, expressed in the following words:

"... an vero opcrae dumtaxat promissae fingi debeant, ne patronus omnimodo excludatur? et hoc praetor quoque sentit operas dumtaxat promissas."⁶⁷

All in all, it must be obvious that the Roman lawyers displayed considerable ingenuity in avoiding a verdict of complete and final invalidity and thereby helping the parties to achieve the ends they had intended to achieve with their transaction. Of course, these ends in themselves had to be legal, moral and attainable.

The last sentence leads us on to consider the reasons for the invalidity of a contract; it refers to the three most important and general ones: illegality, immorality and impossibility of performance.

II.

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Conversion

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