Have you’ve ever had a friend borrow something from you, and then never return it? Hopefully, the thing went missing, and your friend didn’t sneakily sell it to someone else - that would be quite the betrayal. It feels like your stuff was stolen, but your friend didn’t exactly rob you either. So legally speaking, what happened here?
This kind of scenario is usually a small issue where a friend didn’t return a book, or forgot about your tupperware they were using some time ago. But as trivial as it is, you might be surprised to learn that there are old laws that cover this type of scenario. It’s called “conversion”, and can cover anything from your missing copy of Harry Potter, to an apartment you and your family bought together.
“Conversion” is like saying a public road belongs to your grandfather
You’ve probably heard the expression “you think this is your grandfather’s road?” directed at people who drive recklessly. “Conversion” is basically that - treating something that’s not yours as if it’s your own. It’s recognized as a tort (basically means “wrongdoing”, and you can sue for it) in Malaysia through the case of Tay Kian Hock v Kewangan Bersatu Bhd.
[READ MORE - What is a tort? Can eat one ah?]
There are 3 components required to prove conversion has taken place.
The person did it voluntarily (out of free-will)
Something of yours was used without your permission
What was done is something only you had the right to do (as the owner)
We’d give you the legal quote that explains a conversion but it’s a bit difficult to understand (look for paragraph 20). There are many things that only you as the owner are allowed to do to your belongings. We’ll list a few examples of conversion so you get the general idea:
Someone took something away from your possession (like borrowing without permission)
Finding something and not returning it to the rightful owner (unless they can’t be found)
Your work desk got cleaned out, and you don’t know where your things are
Someone stopping you from entering your own house
Your neighbour cut herbs from your garden without permission
Your friend sold the apartment owned by the both of you, without first talking to you about it
Basically, they all involve the person who committed conversion meddling with your ownership. You probably wouldn’t sue your friend over one forgotten book, but you may need consult a lawyer to take legal action when it involves valuable property like an apartment, a car, or even company shares.
But how is that different from stealing?
Wait a second, conversion includes taking something away without permission - but isn’t that basically stealing? Yes, it could be. There are two main differences between conversion and stealing. The first is that conversion covers a lot more situations than just taking something away. The second is that stealing requires the person to have dishonest intentions, while conversion does not.
For example, if you see someone else’s bicycle and take it, you have committed theft.
If you took someone else’s bicycle because you thought it was yours, you have not committed theft. But if you don’t return the bicycle, you have committed conversion.
The definition of a theft in Malaysia is given by Section 378 of the Penal Code:
As you can see, theft is specifically the taking of someone’s belongings without their permission, and does not cover the other situations that conversion does. So all thefts are conversions, but not all conversions are thefts.
Another important difference is that theft is a criminal offence, while conversion can be both a civil case (between two people) and a criminal one (the government comes after you).
Yes, there’s a criminal version of conversion as well
Remember earlier that theft is a criminal offence because it involves dishonesty by the thief. Conversion can also be a criminal offence if the offender had a dishonest intent in his mind. It’s covered generally in Section 403 of the Penal Code:
The Section goes on to explain using a few scenarios, which we’ve summarized below:
Ali took Bashar’s book, thinking at the time that the book belongs to himself. Ali did not commit theft. But if Ali finds out he was mistaken, but still keeps the book for himself, he’s guilty of criminal conversion.
Ali and Bashar are friends. Ali goes to Bashar’s house and borrows a book because Bashar lets him do so. All is still well at this point. But if Ali sells the book off and keeps the money, A is guilty of criminal conversion.
Ali and Bashar own a horse together. Ali can use the horse freely because he co-owns the horse with Bashar. But if Ali sells the horse and keeps the money for himself, he is guilty of criminal conversion.
Section 403 also explains in Explanation 2 that if you find a wallet on the floor, you cannot keep it without first trying to locate the owner (since there are IDs inside that identify the owner) - or you can be found guilty of conversion as well. But if you found money by itself on the floor, it’s okay to keep it if you don’t know who it belongs to.
Remember to return what you’ve borrowed
Friends often lend items to each other to share, and help each other out. In return for that kindness, we can be courteous in return by remembering to give back what we’ve borrowed. And if you ever find yourself waiting for a friend to return your belongings, a lot of the time they have simply forgotten about it and could use a friendly reminder.
Hopefully you’ll never have to sue someone for conversion, especially not friends and family. After all, we respect each other to build a lasting relationship, not to avoid getting sued.