Traditionally, Maltese Civil Law differentiates between agreements or actions that must be carried out through:
Under Maltese law, certain documents must be executed by a public deed or a private writing to avoid being declared null, while in other cases, it is sufficient for the documents to be simply in writing. For instance, a share transfer agreement only requires to be ‘in writing’ whereas a Promise of Sale (‘Konvenju’) or a pledge over rights must be formalized either by a public deed or by a private writing.
Maltese law imposes additional formalities when it comes to private writings. For instance, if a private writing is not signed by all parties, it must be attested to in accordance with Malta’s procedural laws. These additional formalities do not apply to contracts that only need to be ‘in writing’
The court of commercial appeal[1] in the case of ‘Gerald Vella et vs Joseph Cassar Noe’ stated that: “The term ‘Private Writing’ must be interpreted narrowly. While the law certainly does not mandate that both signatures be signed simultaneously (“Il-liġi ċertament ma teżigwix il-kontestwalita’ tal-firem”) it undoubtedly requires the unity of the document being signed (“iżda indubbjament teżiġi l-unita’ tal-kontest”)”
In the aforementioned case the court determined that an exchange of letters can qualify as a private writing if it includes all the essential elements of a contract, and the parties are ‘ad idem’[2] This ruling set an important legal precedent, affirming that even an exchange of letters can meet the requirements of a ‘skrittura privata’. This is also applicable to nowadays, a contract signed in counterparts between a creditor in London and a debtor in Malta does not need to be signed on the same page. It is enough for the parties to sign the same contract remotely and exchange signatures, often even in PDF form or even DocuSign form.
Recent court rulings have cited the case of ‘Vella vs Cassar’ emphasizing that a private writing must be signed on the “Same document” (‘fuq l-istess dokument’)
In fact, in the case of ‘S.G. South Limited vs Joseph Scicluna et.’[3] the court referenced the ‘Vella vs Cassar’ judgement and stated that both signatures must appear on the “same document”. In turn, this exact language was utilized by the court in the case ‘Id-Direttur ta’ l-Artijiet vs Mediterranean Film Studios Limited et.’[4] which attributed to ‘Vella vs Cassar’ the requirement that signatures must be “fuq l-istess document”[5]
The phrase “on the same document” is ambiguous. This could be interpreted to mean either: (a) that while parties may sign a private writing in counterparts or through an exchange of letters, they must sign documents that are identical in content or (b) that they must sign the same physical document. It is argued that the former interpretation is correct.
In the case of ‘Spiteri vs. Buhagiar’[6] the Court held that ad validatatem, a private writing requires the signatures of both debtor and creditor, even though the writing was in possession of the creditor. Possession was not sufficient to substitute the creditor’s signature.
The Court said:
“la darba, skont il-liġi, l-iskrittura privata, biex tkun valida, jeħtieġ tiġi ffirmata mill-partijiet, huwa ċar illi fil-pussess tal-iskrittura f’idejn il-parti li ma tkunx iffirmata mhux biżżejjed biex jagħmel tajjeb għan-nuqqas tal-firma... la darba l-iskrittura “de qua” hija nieqsa minn wieħed mill-elementi rikjesti mill-liġi hija nulla u magħha hija nulla ukoll il-lokazzjoni stipulata b’dik l-iskrittura.”
Article 1232(2) of the Civil Code[7] provides us with the definition of a public deed:
“A Public deed is an instrument drawn up or received, with the requisite formalities, by a notary or other public officer lawfully authorized to attribute public faith thereto.”
The notion of attributing public faith is of particular importance. A public deed is proof of its own consent, and it is very difficult to challenge the validity of a public deed except in those instances specifically catered for by law.
A public deed requires certain formalities, for instance the date must be handwritten and not typed, full details of the parties must be given. Whereas in a private writing one may simply include a person’s name and ID card number. In a public deed the notary must explain the contents of the deed to the parties and must specifically write down a declaration that he has so explained the contents to the parties.
Additionally, in a public deed, all parties must be present at the same time and must sign the deed at the same time. In a public deed, when one of the parties is unable to sign, the deed must be made in front of two witnesses and a declaration that the party is unable to sign should be inserted.
Furthermore, a public deed may only be drawn in either Maltese or English whereas a private writing may be drawn up in other languages. The original public deed will be kept by the notary who will then have it deposited at the Notarial Archives for posterity. Whereas a private writing may be kept by the parties themselves. A private writing may also be signed in duplicates.
For more information or assistance related to Civil law in Malta please contact Dr Robert Tufigno and Dr Delilah Vella.
[1] (24/04/1967)
[2] In agreement with the same terms.
[3] FHCC, (02/04/2004)
[4] COA, 17/03/2015
[5] On the same document.
[6] (20th January 1961) (Court of Appeal)
[7] Chapter 16, Laws of Malta.