In the judgment Customs and Freight Agency Limited vs BML Group Limited, delivered by the Court of Magistrates on 8 October 2025, the Court examined the nature and constituent elements of the actio debitor debitoris mei, more commonly referred to as the actio surrogatoria.

The action finds its basis in Article 1143 of the Civil Code, which provides that: "It shall be competent to any creditor in order to obtain what is due to him to exercise any right or action pertaining to his debtor, with the exception of such rights or actions as are exclusively personal."

The rationale underlying the provision lies in the principle that a debtor's patrimony constitutes the common guarantee of his creditors. Accordingly, creditors have a legitimate interest in ensuring that the debtor's rights are not left unexercised to their detriment. Where a debtor neglects to enforce a right capable of preserving or increasing his patrimony, the interests of his creditors may be prejudiced. The actio debitor debitoris mei comes into play precisely in such circumstances.

The action constitutes a mechanism through which a creditor may, in the name and on behalf of his debtor, exercise rights belonging to the latter, which the debtor has failed or refused to exercise. The creditor does not assert a right vested in him personally, but instead seeks to preserve or increase the assets forming part of his debtor's patrimony, thereby protecting his ability to recover what is due to him.

The provision raises a number of important questions concerning the scope and operation of the actio surrogatoria. In what circumstances may a creditor invoke the action? What conditions must be satisfied before a creditor may exercise rights belonging to his debtor? In its analysis, the Court examined the constituent elements required for the successful exercise of an action under Article 1143 of the Civil Code.

The background

By way of background, the plaintiff company instituted proceedings seeking recovery of a sum which it alleged was owed by the defendant company to one of the latter's former employees. The plaintiff maintained that the former employee was, in turn, indebted to it and accordingly sought to pursue the employee's claim against the defendant by way of an actio surrogatoria.

A preliminary issue arising before the Court was whether such an action could validly proceed where the principal debtor had not been joined as a party to the proceedings. The defendant submitted that the manner in which the action had been framed raised a procedural issue, in that the plaintiff requested payment to be made to a third party who had not been joined to the proceedings, whilst no corresponding claim for payment had been advanced in favour of the plaintiff itself.

In its analysis, the Court referred to the judgment of the First Hall of the Civil Court in Stephenson Harvey vs Dr Tanya Sciberras Camilleri et noe (30 May 2002), in which the nature of the actio surrogatoria and the requirements for its valid exercise were examined in depth.

In Harvey vs Sciberras Camilleri et noe, the Court held that a creditor may institute an actio surrogatoria without the debtor's consent and notwithstanding any opposition on the latter's part. The exercise of the action does not amount to a subrogation of the debtor's rights against third parties. Accordingly, although the action has also been described as an actio indirecta vel obliqua, the creditor may proceed directly against his debtor's debtor.

As with any judicial action, the creditor must establish a juridical interest in pursuing the claim. Such interest may be lacking where the debtor is solvent or has already taken steps to enforce his rights against his own debtor. The creditor must further demonstrate that his claim against the debtor is due and enforceable, and not subject to any condition which would preclude him from instituting direct proceedings against that debtor.

The Court further noted that the creditor-plaintiff acts as a procurator in rem suam, although he exercises rights belonging to the debtor, he does so in pursuit of his own interest. In this regard, the Court referred to doctrinal writings describing the creditor in an actio surrogatoria as one who institutes proceedings on a right which is "... not his own but that of the debtor, and therefore acts not jure proprio but ex juribus debitoris; in this respect he is a successor to the debtor and not a third party; he is a plaintiff acting in his own personal interest, because his objective is not the benefit of the debtor but solely his own, namely to obtain, whether immediately or at a later stage, payment of his own claim."

These principles establish that an actio surrogatoria may be instituted without the debtor's consent and even against his wishes, that the creditor acts ex juribus debitoris by exercising rights belonging to the debtor rather than rights vested in himself, and that the creditor must demonstrate a real and present interest in pursuing the action, including a risk that the debtor's inaction may prejudice his ability to recover what is owed to him.

Key issues before the court

The central question arising in the context of the actio surrogatoria is whether proceedings may be instituted solely against the debtor's debtor, or whether the principal debtor must also be joined to the proceedings.

Whilst Maltese law is silent on this point, Maltese courts, drawing guidance from Italian doctrine and jurisprudence, have consistently held that the principal debtor must be party to the proceedings. This requirement ensures that any judgment delivered is binding on all interested parties and that the action is properly constituted.

The rationale for this requirement lies in the fact that, where a surrogatory action succeeds, the creditor acquires no preference over the assets recovered. Any recovery forms part of the debtor's patrimony and remains subject to the rights of the debtor's other creditors, save in exceptional circumstances where a direct order for payment is sought against the debtor's debtor.

Principles identified by the court

The Court proceeded to identify the constituent elements of the actio surrogatoria, holding that a creditor seeking to exercise the action must establish the following:

(a) the plaintiff must be an actual creditor of the debtor;

(b)the creditor's claim must be actual and enforceable, rather than conditional, contingent, or merely prospective;

(c) the debtor must possess a patrimonial right or claim, capable of being enforced, against his debtor;

(d)            the plaintiff must establish that his debtor has failed, whether through negligence or indifference, to take the necessary steps to recover what is due to him from his own debtor;

(e) the plaintiff must further demonstrate that, as a result of the debtor's failure to act in a timely manner, he is suffering prejudice to his right to recover payment from that debtor; and

(f)  where the debtor's debtor contests the claim, the plaintiff must also prove the existence and validity of the claim which his debtor holds against that third-party debtor.

The Court noted that the requirement to join the principal debtor has long been recognised in Maltese jurisprudence. In this regard, the Court referred to the judgment of the First Hall of the Civil Court in Avukat Dr Giuseppe Maria Camilleri et vs Luigi sive Lewis Spiteri Debono (17 March 1955), which affirm that the participation of the principal debtor is essential to the valid constitution of an actio surrogatoria. The Court further held that the failure to join the debtor from the outset cannot subsequently be remedied through joinder proceedings (kjamata fil-kawża), since that procedure is available only where the plaintiff was initially unaware that the person concerned ought properly to have been a party to the action.

Applying these principles, the Court held that the action could not validly proceed. The plaintiff was neither a judicially recognised creditor of the principal debtor, nor had it sought to establish the alleged debt within the proceedings themselves. In those circumstances, the principal debtor ought to have been joined as a party to the action, and the failure to do so rendered the proceedings improperly constituted. The preliminary pleas were consequently upheld.

Dr Martina Rizzo is an advocate in the litigation and dispute resolution team at Ganado Advocates. 

Disclaimer: This law report has been compiled by Ganado Advocates, who were not in any way involved as legal advisor for the parties in the judgement being covered in this law report. This report is for informational purposes only and does not contain or convey legal advice. The information contained in this report should not be used or relied upon in regard to any particular facts or circumstances without first obtaining legal advice.