Nullity as a prerequisite of contract conversion

Abstract

Although it has been legally recognized since 1978, the conversion (lat. Conversio - conversion) of contracts is one of the institutes to which no deserved attention has been paid in domestic theory. In textbooks that cover the general part of civil law, and those used for teaching the law of obligations, this institute is, with certain exceptions, presented rather briefly - usually, beside the legal definition, we find only the field of application and examples of conversion. We were unable to find monographs on the subject of conversion. On the other hand, in foreign literature, mostly German and Italian, we find a large number of monographs on the topic of conversion. The subject of this paper is one part of the norm that prescribes the conversion of a contract, and that is the nullity of a contract, which is provided as a precondition for the application of the institute. The scope of application of conversion seems to be precisely and clearly defined, especially having in mind the text and the place of the norm within the Law Contracts and Torts, and in this paper we will see if that is actually the case. In the search for the answer, we also used the comparative legal method. The area of application of conversion was considered - and we did not limit ourselves only to null and void contracts, but we considered the possibility of its application to non-existent, null and void, voidable contracts, then to partially null and void contracts, but also to valid contracts. Within null and void contracts, special attention is paid to those illegal and immoral, and within non-existent ones - to a simulated contract.