تحول التصرف القانوني في التشريع الجزائري

Abstract

Abstract : The theory of the transformation of legal behaviour is one of the most important theories developed by German jurisprudence and then formulated by its legislation and it was the first source of it. The theory has become widespread popular jurisprudence and the judiciary, and various Western and Arab legislations appealed to it and accepted it as the Algerian legislator, who codified it under Article 105 of the Civil Code, But the Algerian text was limited to the contract, as it is one of the most important legal actions, in contrast to the original text that stipulated the transformation of legal behaviour, given the importance of the theory in saving legal actions from invalidity in a way that guarantees the preservation of the stability of transactions and the protection of the interests of contractors and others of good faith. It is known to those working in the legal field that the field in which the transformation theory produces its actions is the behaviour, so that if this behaviour includes elements of another behavior according to the conditions stipulated by the law, then the invalid behaviour is considered as correct as it is that behaviour whose elements are available, and it must avoid dangerous effects, or at least reducing its effects. Of course the role of the case judge remains central in examining the nature of each behaviour and measuring its susceptibility to transfer, since the condition of the need to search for the intention of the parties is the significant feature of the theory of legal behaviour transformation when applied by the judge. The study concludes with the need to amend the name of the theory of contract transformation in Algerian legislation to a theory of legal behaviour transformation to indicate its generality, given its importance in practice, so that this text become the general law for the rest of the cases in which the transformation occurs, whether in contractual or unilateral acts, and why not even in public law .