Jeana Sharankova: "Semiotic Aspects of the Transformation of Legal Systems"


6. We know that in Roman law (particularly according to the commentaries of the pandectists in Germany) the materialization of the resolutory condition (condicio ad quam) can have real effect (in the case of the canceling of a contract when it is destroyed retroactively by a cause other than the initial nullity). Let me consider this condition in Lex commisoria __ the additional contract by which a sale can be canceled in case of an untimely payment of price. This is the opinion of Julian (The Digest, book 41, tittle 3, fragment 2, paragraph 3 and paragraph 4). Ulpian is still more categorical: "If the estate is sold under Lex commisoria, the sale must rather be deemed terminated when the condition materializes than be considered that the contract has been signed under such a condition" (The Digest, book 18, title 3, 1). If we proceed from the semantic field of "the condition" we can make an infinite series of classifications __ of the types of condition __ but that would not provide an answer to the legal significance of a given condition. In itself, the significance of a condition is that it is the cause of some consequence. If we proceed from the semantic fields of the features of the "conditions" __ "suspensive" and "resolutory" __ we cannot understand juridically why in one case a given act does not materialize but is postponed and in another, that a given act is terminated, unless we employ the construction of the contract, i.e. with the legal significance of a construction which transforms another one and is therefore a new jural fact, entailing subjective rights and obligations __ legal consequences. Only then the legal semantics of the concept "resolutory condition" can be reached.

In this case, however, it is more important to consider the following: the legal consequences of that "resolutory condition" which is of legal value are equalized with the legal consequences of the "avoidance of contract". Actually, it is precisely the legal regime that requires the introduction of the new construction of the additional contract. Ulpian puts it absolutely clearly: it should rather be considered that the purchase is canceled, than that the contract has been signed under a condition. The contract has been concluded and the direct legal consequences come about. Nonfulfilment of the payment obligation is a jural fact that leads to the legal regime of retroaction (ex tunc): the contract is terminated (when the condition comes about), the termination has retroactive effect. That means that the legal regime is to be found in another semantic field, which is a type of the feature "culpable nonfulfilment," which, in the semantic field of the conditions (the jural facts) is its kind of illegal act. It is known that both cancellation of contracts and restitution has legal semantics (regime) of retroaction and the judge would rule accordingly when the respondent is found guilty. We know both the classification of the conditions as additional stipulations and the semantic field of the conditions as jural facts in which we now find an illegal (guilty) act: nonfulfilment of the obligation to pay the price. It is precisely this latter classification, immediately linked to the legal significance of the contract, i.e. with the rights and obligations entailed by it and therefore with its effect, that would define the legal significance (the legal regime) of the "resolutory condition".

The so-called "new construction" which is introduced is actually an operation of a transformation which is expressed in the inclusion into the semantic sum total of a jural fact which __ when it materializes __ will lead to the corresponding consequences of the retroaction, i.e. a regime will come about which will be "reverse" to that applying in the case of an unconditional contract.

This pattern of transformation which today we define as categoric reference and which is expressed in the "separation" of the generic concept from the semantic field and the "connection" of the genus of its distinctive feature with the semantic field already links legal reasoning not only with its practical activity but also with its nature to give a meaning to reality and to the legal concepts themselves in a specifically juridical manner. Thus, we can put forward the hypothesis that the category plays the role of a genus, which links a concept to concept and concept to situation.

Through the categories we have a set of paradigms and we need yet another "grammar" of rules for reaching the synarmonization with these significances, as well as of rules through which the information of the significances in the categorical system will turn into information in other systems in order to be able to apply __ already through the categories achieved as significance __ the necessary legal regime. These are the rules of the juridical code of categoric reference (correlation). Thus, the mechanism of transformation starts working within law while at the same time preserving its legal semantics it allows it juridically to qualify reality.

7. So, which are the invariable units of legal semantics through which law operates and through which it transforms, arranges and re-arranges reality and its own apparatus? In order to find out what is the "order" of the system, which it will explicate as a cognitive pattern, we should indicate that order as a series of "representatives" of legal quality. These "representatives" must besides be a fit structure for transformation so that law can "every time and everywhere" operate through them as invariable units. To be a structure, these "representatives" have to consist of at least two elements. To be able to transform legal quality, their components must be in functional or correlative connection. To be representatives of "legal" quality, they always have to possess, or within them one must always recognize, normative content. That means that "the normative" must be invariable in all variants of legal forms.

Page - 1     Page + 1

AS/SA Nº 6/7, Article 7 : Page 4 / 11

© 1999, AS/SA

E-mail to the editors
Pour écrire à la rédaction