This case concerned a promise of sale agreement (konvenju) regarding a portion of land in Xewkija, Gozo.

The facts of the case were as follows:

The defendant brothers Victor and Michael Azzopardi (as represented in their absence by the curator Dr Anton Refalo and later by their attorneys Dr Joseph Schembri and Dr Albert Camilleri who appeared on their behalf) lived overseas and by virtue of a power of attorney dated 8 October 2001, Victor Azzopardi had appointed Peter Paul Meilak as his mandatary specifically to look after his affairs with respect to the division of his father’s and grandfather’s successions. This was therefore a special mandate. Victor Azzopardi was given a general power of attorney from his brother Michael dated 23 August 2003 which included the power “For the better doing, performing and executing of the matters aforesaid, I/we hereby grant unto my/said attorney full power and authority to substitute and appoint in his/her/their place and stead one or more attorney or attorneys to exercise for/us as my/our attorney or attorneys any of or all powers hereby conferred, and to revoke any such appointment from time to time, as my/our said attorney shall from time to time deem fit.”

On 10 February 2003, the contract of division was published and the disputed property assigned to the Defendant brothers. On 11 February 2003, the plaintiffs signed a konvenju with Peter Paul Meilak who appeared as the mandatary of the defendant brothers and who, on their behalf, bound himself to sell the disputed property for Lm80,000, which agreement was to be effective for six months. The promise of sale stated that Mr Meilak was acting on behalf of the defendant vendors as duly authorised. On 9 August 2003, the konvenju was renewed until 31 December 2003 and on 28 December 2003 renewed until 31 March 2004. The defendants refused to appear on the final contract of sale claiming that they had never authorised anyone to negotiate the sale of the property and appear on their behalf on a konvenju.

The plaintiffs instituted proceedings against the defendants on the basis of Article 1357 of the Civil Code (Chapter 16 – Laws of Malta) concerning promise of sale agreements requesting that the defendants be ordered to appear on the final contract of sale of the disputed land.

The defendants claimed that the plaintiffs’ requests were unfounded in terms of fact and law since they never signed the konvenju and had not authorised any individual to sign a konvenju on their behalf. They therefore claimed that the konvenju be deemed null since till the date the konvenju was signed, while Victor Azzopardi had granted a special power of attorney to Mr Meilak to simply appear on the contract of division of succession, Michael Azzopardi had granted no power of attorney at all.

The main issue of this case was essentially whether Peter Paul Meilak was indeed granted a mandate by the defendant brothers to appear on the konvenju on their behalf or not.

The court referred to the basic principles of mandate found in the Civil Code:

• Mandate or procuration is a contract whereby a person gives to another the power to do something for him. (Article 1856)

• Subject to any other special provision of the law, a mandate can be granted by a public deed, by a private writing, by letter, or verbally, or even tacitly. (Article 1857)

• Mandate is either special, if it is for one matter or for certain matters, only; or general, if it is for all the affairs of the mandator. (Article 1862)

• The power to make alienations of property, except such alienations as fall within the limits of the administration, or to hypothecate property or to perform other acts of ownership, must be expressed. (Article 1863(2))

• A mandator is bound to carry out the obligations contracted by the mandatary in accordance with the powers which he has given him. He is not liable for what the mandatary has done beyond such powers, unless he has expressly or tacitly ratified it. (Article 1880)

There was no doubt that the mandate given to Mr Meilak from Victor Azzopardi by virtue of a declaration signed on 8 October 2001 terminated upon the publication of the contract of division of 10 February 2003. However, the court referred to a series of letters exchanged between the defendants and their lawyer in Gozo. Upon their examination, the court stated that their content revealed that the defendants were indeed aware of the konvenju and intended sale to the prospective buyers for a consideration of Lm80,000 together with an apartment in the same place valued at around Lm20,000. The court held that even in the event that Mr Meilak was not authorised to appear on the konvenju on behalf of the defendants, in any case, his actions were ratified by the defendants in terms of Article 1880 of the Civil Code referred to above.

Furthermore, the plaintiffs were requesting that the defendants appear on the contract of sale subject to the conditions established in the konvenju. The court held that it could not possibly deliver a sentence ordering that what was agreed upon in the konvenju be executed, when from the evidence provided it was clear that the object of the obligation was not determinate or determinable. One of the conditions of the sale was that part of the consideration for the sale of the disputed property was an apartment in the block of apartments that the plaintiffs intended to build on the disputed land. There was no reference to which apartment would be given and nor were any plans annexed to the konvenju. The parties clearly had no intention of identifying the apartment beforehand. The court referred to Article 1352 of the Civil Code which in relation to the contract of sale states (1) The price must be in money. (2) Nevertheless, the contract shall not cease to be a contract of sale if, in addition to the sum of money agreed upon, the buyer binds himself to give some thing in kind by way of a supplement to the price.

The Court referred to Article 1233(1)(a) of the Civil Code which holds:

(1) Saving the cases where the law expressly requires that the instrument be a public deed, the transactions hereunder mentioned shall on pain of nullity be expressed in a public deed or a private writing: (a) any agreement implying a promise to transfer or acquire, under whatsoever title, the ownership of immovable property, or any other right over such property;

As held in the case Joseph Pace et vs John Zarb et (2005), since a konvenju must on pain of nullity be expressed in writing, it is therefore only those conditions expressly written in such instrument that bind the parties.

The court could not understand how the plaintiffs could expect the defendants to be ordered to appear on the final contract when it was clear from the evidence provided that the necessary permits to develop the disputed land had not been issued when the apartment as part of the consideration was to be transferred upon the sale of such land. Even in the event that another apartment would be given instead as contemplated by the konvenju, still no details of such apartment were identified.

On the basis of the above, the court therefore ruled that the plaintiffs could not request that the defendants be ordered to appear on the final contract of sale.