Joseph Mallia Bonello

v

Paul Camilleri and his wife Rose Camilleri

Chief Justice Vincent De Gaetano

Judges

Joseph D. Camilleri

Joseph A. Filletti

Court of Appeal

1 February 2008

This was an appeal from a decision delivered on 12 February 2007 by the First Hall, Civil Court.

By virtue of a public deed drawn up by Notary Angelo Vella in March 1996, the plaintiff had bought from the defendant spouses an apartment in Mellieha. Subsequent to this purchase, it transpired that the apartment in question was not built in accordance with the permit issued by the competent authorities. The defendant spouses had demanded that the authorities sanction this irregularity. By virtue of the decision delivered by the Planning Appeals Board in July 2005, this demand was upheld and their position regularised, however subject to the fulfilment of a number of conditions including substantial structural alterations. The plaintiff, as the owner of the apartment, incurred substantial expenses so as to allow conformity with the law. These structural alterations also rendered the apartment smaller than its original size at the time it was purchased and this allegedly decreased the value of the apartment. Despite the defendants being called upon on numerous occasions to pay the damages incurred by the plaintiff, they remained in default.

The plaintiff hence requested the court to:

• To declare the defendants responsible for the damages incurred by him both in the form expenses as well as the depreciation in value of the property due to the decrease in size;

• To liquidate the damages and condemn payment of the same in favour of the plaintiff.

The defendants stated that:

• The plaintiff had availed himself of a remedy that did not fall within those remedies afforded by Article 1390 of the Civil Code (Chapter 16 – Laws of Malta).

• The plaintiff’s claims were unfounded in fact and in law since he was aware of what he was purchasing at the moment of sale, hence, he was responsible for damages.

Article 1390 caters for the situation in a contract of sale where the objects of sale are not according to stipulated quality or sample:

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 court emphasised the fact that this Article applies to both movable and immovable property. Hence, the remedies available to the plaintiff were to reject the flat and plead damages or accept the flat at a reduced price (the actio aestimatoria). However, it was further stated that these remedies were not the only existing avenues to be availed of by the plaintiff in the event that the defendants did not fulfil their contractual obligations. In fact reference was made to Articles 1125 and 1127 of the Civil Code which contemplate the breach of contractual obligations: “Where any person fails to discharge an obligation which he has contracted, he shall be liable in damages;” and “In case of non-performance of an obligation to do, the creditor may be authorised to cause the performance thereof himself at the expense of the debtor.”

It was emphasised that Article 1378 states that the seller has two principal obligations, namely to deliver and to warrant the thing sold. In Article 1408, the law continues to state that the warranty which the seller owes to the buyer is in respect of the quiet possession of the thing sold and of any latent defect therein.

The court held that in the case under examination, since the property lacked the necessary permit, the buyer’s right to peaceful possession which must be warranted upon sale, was threatened by the fact that he could have lost possession of the same property. Incidentally, the plaintiff had to carry out structural alterations to protect himself from such a threat.

Reference was made to the case Adrian Galea et vs Tarcisio Calleja proprio et noe (2001) where the court stated that the warrant of peaceful possession also covers situations like the case under discussion. This court rejected the defendants’ first plea and the latter appealed. The plaintiff requested the Court of Appeal to reject the same appeal so as to allow the Court of First Instance to conclude the case.

The defendants stated that there was no breach of contractual obligations since there was no clause in the public deed effecting the sale stating that the property was built in conformity with a permit issued by the competent authorities. Hence, in their opinion, since there was no breach, the general remedies could not be exploited by the plaintiff apart from the remedies afforded by Article 1390.

The Court of Appeal noted that the sale took place by virtue of a contract of sale in accordance with Article 1379 on 18 March 1996. It held that a close reading of Article 1390 reveals that the legislator did not intend that this provision be applicable to the case under examination since the legal provision contemplates the case of a delivery of an object different from that offered to be delivered and the action is made either before the actual delivery, simultaneously with the delivery or immediately after it. The court pointed out that since the action was filed in 2005, it was clear that many years passed since the “delivery” of the object. The court hence felt that Article 1390 could not be deemed as the applicable and appropriate legal provision.

The Court of Appeal hence agreed with the Civil Court and ordered that the case continue before the latter court.