This case involved a request by the plaintiff company for the payment of Lm2,658.05, which was the balance of a larger sum due as payment for products and services.

The defendant company stated that:

• these claims were unfounded in fact and in law;

• the plaintiff did not consign products and provide services in accordance with the agreement between the parties.

It transpired from the evidence produced that the plaintiff company specialised in information technology and the defendant company requested the services of the former in 1999 for the installation of nodules and the upgrading of their computerised system. The process took several years and it seemed that the parties were on good amicable terms – this was evidenced by a letter dated 9 April 2002, sent to a director of the plaintiff company in which this same company was complimented by the other company. However, it seemed that in mid-2002, an issue arose between the parties.

The defendants basically said that the product received from the plaintiff company was not of the quality agreed upon.

The Court referred to Article 1390 of the Civil Code which states:

1390. If the thing which the seller offers to deliver is not of the quality promised, or is not according to the sample on which the sale was made, the buyer may elect either to reject the thing and demand damages, or to accept the thing with a diminution of the price upon a valuation by experts.

The defendant company thus had a choice made available by law. The Court noted that the experts mentioned by the law are experts appointed by the Court.

The defendant company in this case was clearly not seeking to dissolve the sale since it did not file the lawsuit itself but was merely refusing to pay the amount allegedly due and demanded by the plaintiff company. The defendant company felt that the plaintiff company had failed in its contractual obligations by providing it with a product that did not comply with the quality agreed upon. In the case Portelli vs Laferla, it was stated that the purchaser may refuse the merchandise not only when it is not like the sample but also when the quality is not in accordance with that agreed upon. The representative of the defendant company claimed that they had to invest in new software for their production system to change the system installed by the plaintiff company.

Despite this, the defendant company never took legal action against the plaintiff company for the latter’s alleged breach of contractual obligations. In fact, the defendants kept this system for a number of years. It was only after they realised the implications of retaining such possession that the deposit of such system took place in November 2006.

The Court examined the case Edward Vincenti vs Carmelo Mazzitelli in which the Court stated that an action under Article 1390 in the case where an object delivered does not meet the level of quality agreed upon, must be exercised within two years.

Should the defendant company have felt so aggrieved as to want to file an action in Court, the period in which to do so began to run at least from February 2002, the time when it was claimed by a representative of the same company that relations between the parties had grown increasingly sour.

Despite this claim, the defendants merely remained inactive but kept declaring the product to be of a quality different to that agreed upon, but at the same time, retaining the product and refusing to pay.

In the Court’s opinion, this state of affairs could not be legally justified. The defendant company had options provided for by law and in failure of such options, payment of the whole sum had to be made.

In the case Frederick Micallef et noe vs May Sullivan – 2002 the Court declared that if the buyer decided to keep the furniture ordered with all its defects, and took no legal action, this would translate into a renunciation of the buyer’s rights. This was also stated in Attard Bros. vs Direttur ta’ l- Edukazzjoni – 1992.

Although Article 1390 does not give a time limit, case law, as seen above has stipulated a two-year period in which the buyer could file an action for damages against the seller for alleged non-fulfilment of contractual obligations.

If a case is made against the buyer, the Court stated that the buyer had a two-year period to deposit the object in question in Court. The mere fact of receiving the goods is not enough to prejudice the rights of the buyer completely. Yet, the buyer must ensure s/he follows all legal formalities so as not to lose remedies provided for by law.

In fact, in Buttigieg vs Hertz (Vol XXX pt ii pg 163), the Court held that the buyer had a right to demand the dissolution of the contract when the object did not conform to the agreement, although the object was received, as long as, however, the right was not lost by his/her own act.

In the case under examination, the deposit by the defendant company was too late and was made only after the lawyer of the plaintiff company made them aware of it.

Hence, since the defendant company did not use any of its rights provided for by law within two years either from the day the system was installed or from when it was realised that it was not of the quality agreed upon, it had lost its rights to act and could not oppose payment demanded by the plaintiffs.

The Court hence concluded in favour of the plaintiff company and stated that the defendant company at this point had no other choice but to pay the amount due.