The Malta Independent 22 June 2021, Tuesday

Law report: Presta Nome Mandate

Ganado Advocates Wednesday, 5 May 2021, 09:19 Last update: about 3 months ago

Neil Bezzina

In its judgement on 27 April 2021, delivered in the names of Peter Camilleri (the “Plaintiff”) vs Lee David Camillleri and Nicholas Camilleri (the “Defendants”), the Court of Magistrates (Gozo – Superior Jurisdiction) (the ‘Court’), presided over by Magistrate Brigitte Sultana held, inter alia, that the a Presta Nome relationship must be granted by a public deed, private writing, letter, or verbally even if tacitly.

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The Plaintiff is a concessionaire and licensor to run a mobile kiosk on a fixed site located in Dwejra, Gozo. Over a period of years, the Plaintiff, allowed his brother to run the business, with such business eventually being run by the brother’s children, the Defendants, after this death. The Plaintiff eventually requested the Defendants to vacate the premises who, however, refused to do so, and thus the Plaintiff brought forward his pleas to the Court to order the Defendants to vacate the premises.

The Plaintiff requested that the Court: i) declares that the Defendants are occupying the premises without title and against the Plaintiff’s will; ii) declares that the Plaintiff is entitled to the repossession of the premises; and iii) orders the Defendants to vacate the premises.

On their part, the Defendants claimed that: i) the concession and licence held by the Plaintiff in relation to the kiosk does not amount to a legal title whereby the plaintiff is able to evict the defendants; ii) contrary to the sworn application filed by the Plaintiff, the license issued on the Plaintiff’s name, was issued on a Presta Nome basis on behalf of their late father, Emmanuel Camilleri, who from the start of the concession up until his death (apart from a 4 year period) operated the kiosk; iii) they continued to operate the kiosk as the heirs of the deceased upon his death; and iv) they have a right to keep occupying and running the kiosk as heirs of the late Emmanuel Camilleri.

In his counter-claim, the Plaintiff held that: i) the kiosk was being rented out from a third party, who for certain trust issues did not want to deal with Emmanuel Camilleri and thus all acts and agreements were entered into with the Plaintiff; ii) all the income and expenses had to be split between the Plaintiff and his brother, however the Plaintiff eventually left the day to day running of the business in 1995 due to certain legal issues surrounding the kiosk; iii) after the Plaintiff’s departure, his brother kept running the business on behalf of the Plaintiff.

In their final reply, the Defendants requested the Court to declare that the kiosk appertains to the defendants as the heirs to the Plaintiff’s brother, who took care of the day to day running of the business and who the Plaintiff appeared for on a Presta Nome basis and furthermore that all the licenses and permits issued on the Plaintiff name, appertain to the Defendants. They are further claiming a reimbursement for all the expenses undertaken by them post 1995 when the Plaintiff left the business.

In his final submission, the Plaintiff held that he never appeared on a Presta Nome basis on behalf of his brother, and there was never an agreement between the Plaintiff and his brother in regard to this and contrary to what the Defendants are claiming, the Plaintiff allowed his brother to run the business as a favour given the brother’s frequent brushes with the law. The Plaintiff, ultimately, claimed that neither the Defendants nor their late father have any title/rights in relation to the business/kiosk.

Before deciding on the merits of the case, the Court had to delve into further detail as to the definition of Presta Nome, and more specifically, the juridical relationship that was present between the Plaintiff and his brother. Only after such an analysis could the Court opine on the matters requested.

The Court held that the concept of Presta Nome is tied to a particular individual who under mandate requests another individual to act on his behalf. The Court highlighted that legally, the person acting Presta Nome and the person who has requested such person to act on his behalf are considered as one person in their relationship with third parties. The Court further stated that such relationship is not always evident to third parties as the person acting on a Presta Nome basis is not required to state that he is acting on behalf of another individual, this is known as indirect representation. When the individual acting on a Presta Nome basis expressly states that he is acting on behalf of another individual, this is known as direct representation.

The Court referred to Article 1857 of the Civil Code (Chapter 16 of the Laws of Malta) (the “Civil Code”) which dealt  with the “Nature and Form of Mandate” and fiduciary obligations, both through which the laws of Malta recognise the concept of Presta Nome whereby a person can act through his name in the interest of others. Article 1857(2) of the Civil Code holds that every mandate must be granted either by a public deed, private writing, by letter, or verbally, even if tacitly. Quoting the jurist Borsari, the Court held that a tacit mandate works on the presumption that the person acting on a Presta Nome basis has the tacit consent of the person he is acting on behalf of. Another fundamental concept of a tacit mandate is that this occurs on an express basis and not on an implied basis.

When analysing the facts of the case, the Court found some inconsistencies in the defendants pleas, given that they initially stated that the kiosk was acquired on the Plaintiffs name and which would eventually be transferred to their late father, whereby the Plaintiff was acting on a Presta Nome basis on behalf of his brother. However, they later stated that the kiosk was purchased by the Plaintiff and his brother, whereby all the income and costs would be split between them, even requesting half the payments.

Given that the Defendant’s father passed away in 2011, the Court held that it would need to rely on the extensive documentation and evidence provided to assess the relationship between the Plaintiff and his brother.

The Court noted that there was never an express agreement between the Plaintiff and his brother, for the Plaintiff to act on a Presta Nome basis. Furthermore, the Defendants could not prove that the acquisition of the kiosk occurred on the Plaintiff’s name, with all their recollections coming from when they were still young children.

The Court noted that whilst it was the Plaintiff’s brother who had come up with the idea to invest in the kiosk, the Plaintiff showed enough evidence that it was he who managed to kick-start the acquisition process and invest enough capital to start the business, whereby he solely forked out money to buy equipment and the necessary stock. Furthermore, from documentary evidence, it was the Plaintiff who acquired the shares in the Company holding the rights to the kiosk (after the lapse of the lease), without any mention of his brother. His brother’s name is also not mentioned in any bank guarantees and in the registries of the respective Lands Authority and Malta Tourism Authority which issued the necessary licenses.

The Plaintiff does not contest that his brother was entrusted with the running of the kiosk for a number of years and that in these years, his brother would have paid certain invoices and repayments of loans the Plaintiff would have provided his brother. The Court however held that this does not mean that the kiosk belonged to the Plaintiff’s brother, and that the day-to-day running of the kiosk was entrusted to the Plaintiff’s brother given that the Plaintiff permitted his brother to run the kiosk to help him during a difficult time he was going through. Even though the Court noted that initially there was an impediment of the kiosk being held in the brother’s name, given that the seller would not enter into any agreements with him, there was nothing stopping the brother from requesting that the business be transferred in his name and that any licenses are issued in his name. Should he have desired that the Plaintiff handles everything on his behalf, he should have at least made this clear to all third parties.

In giving its judgement, the Court held that given the above facts and evidence, and that the “idem placitum consensus” was missing, it appeared that no mandate existed between the Plaintiff and his brother and thus the Plaintiff was not acting on a Presta Nome basis for his brother. The Court ordered the Defendants to vacate the premises within one month from the above judgement.

Neil Bezzina is an Associate at Ganado Advocates.

 

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