Legal Formalism

Abstract

Form is a term used in legal theory with three different meanings. It may refer to the form of legal acts, to the form of governments, or to a formal interpretation of the law known as legal formalism. In the first case, form denotes the means by which a legal intention is issued to produce a legal effect. This form can be free or fixed. When it is free, a party may declare her intention by whatever mean: orally, by writings or through signs or gestures. In private law, the principle is that of freedom of form, and the need for a fixed form is exceptional. In such cases, however, an act issued without the proper form is null and void, the form becoming a requirement ad substantiam for its validity. To make a few examples: the simple taking of a shell on the shore entitles to possession and generally an oral agreement is sufficient to bind the parties, but—under French or Italian Law—a donation of a real estate must be performed before a public notary to be valid.