This case was an appeal from a judgement delivered by the First Hall Civil Court on 29 January 2007.

The facts of the case were as follows:

The parties had entered into an agreement between themselves whereby they purchased pigs and other animals together in their own name and resold them at a profit, which they would split between them. The plaintiff looked after the purchase and payment of such pigs while the defendant would resell them at a profit.

The plaintiffs filed an action against the defendants holding that they were due the sum of Lm4,284, a debt which they claimed was certain, liquid and due and which sum they claimed was retained by the defendants without authority to do so. The defendants were allegedly called upon to settle such debt, however, they remained in default.

The plaintiffs in their sworn application, on the basis that their demand was solely for the recovery of a debt certain, liquid and due not consisting in the performance of an act, requested the Court to proceed to deliver its judgment allowing their demand, without proceeding to trial in terms of Article 167 of the Code of Organisation and Civil Procedure (Chapter 12 – Laws of Malta) considering special summary proceedings.

The defendants claimed that

1. Neither did the plaintiffs purchase pigs nor did they sell them

2. Without prejudice to the above, any money due to the plaintiffs was settled and therefore, the latter had no rightful claims against them.

3. The action instituted by the plaintiffs was null since it was the consequence of what the plaintiff described as a civil partnership

4. In terms of Article 1233(1)(f) of the Civil Code (Chapter 16 – Laws of Malta), a civil partnership must be constituted by virtue of a private writing.

The First Hall Civil Court examined the above-mentioned Article 1233(1)(f) which holds: 1233(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:

• (f) any civil partnership;...”

The Court agreed that it was clear that a civil partnership had to be constituted at least by virtue of a private writing. However, if it indeed resulted that the defendant did owe the amount claimed by the plaintiffs, the fact that there was an absence of such private writing did not automatically render the action unsuccessful since this would allow for the unjustified enrichment of the defendants if they were allowed to keep the sum of money being claimed by the plaintiffs. Although the parties failed to enter into a private writing constituting a civil partnership, in the opinion of the court there was certainly an agreement between them whereby they would buy and sell in the same manner. The plaintiff still had a right to claim the sum due as a result of the arrangement, whatever the arrangement was called.

The First Hall Civil Court rejected the defendants’ claims and ordered them to pay the plaintiffs the sum of Lm2,142 (today e4989.52), holding that the plaintiffs’ version of the series of events was more credible. The Court agreed with the defendant to the extent that the plaintiffs were only entitled to half of the sum claimed by the plaintiffs.

The defendants appealed the judgement while the plaintiffs requested that the judgement be confirmed in its entirety. The defendants reiterated that once the agreement between the parties amounted to a civil partnership, then the plaintiffs’ action could not be successful since the civil partnership was not set up by virtue of a private writing as contemplated by Article 1233(1)(f). The defendant further claimed that his version of the facts of the case were, unlike the First Hall, Civil Court had ruled, more credible than that of the plaintiffs. It was further claimed that the First Hall Civil Court should not have decided on the basis of unjustified enrichment.

The Court of Appeal noted that while the First Hall Civil Court agreed that the arrangement between the parties necessitated a private writing, it rejected the defendants’ claims on the basis that failing to do so would amount to the same defendants’ unjustified enrichment.

The Court of Appeal however disagreed that there was a civil partnership existing between the parties and furthermore disagreed with the defendants’ claim that the plaintiff’s action could not work. The Court continued that not all business entered into between persons took the form of a civil partnership.

Furthermore, the Court of Appeal referred to Article 1644 of the Civil Code which defined the contract of a partnership as follows: “Partnership is a contract whereby two or more persons agree to place a thing in common, with a view to sharing the benefit which may derive therefrom. The court therefore noted that the essential element is “to place a thing in common”. The court noted that in this case, the parties were merely purchasing and reselling and there was no actual agreement ‘to place a thing in common’ – the only thing they could have had in common was any derived profit, which was to be split between them.

The Court of Appeal decided not to disturb the First Hall Civil Court’s appreciation of the evidence which led to its decision that the plaintiffs’ version of the facts was more credible.

On the basis of the above and not necessarily for the reasons given by the First Hall Civil Court, the Court of Appeal rejected the defendants’ appeal and confirmed the original judgement.