Force Majeure under Maltese Law

Maltese law tries to ensure that once obligations are contracted they are executed and performed. In doing so, the law provides for various measures on how a creditor may force the debtor to perform an obligation and in doing so, the court would effectively be changing that obligation of doing something into a money obligation; very often the court would authorize the creditor to perform the obligation himself at the expense of the debtor.

The secondary affect of an obligation is the liability for damages. If one does not perform the obligation or even delays in doing so, he will therefore be liable in damages. The creditor is able to sue either for the performance or for damages for the delay.

In the case when a time-period has been agreed upon and the debtor is in delay, then such debtor would be liable for damages as soon as the period lapses. If on the other hand, no time period has been agreed upon, the creditor must send a judicial letter to the debtor to place him in delay. This is particularly relevant for present day scenarios such as the non-completion of construction works by contractors within the agreed timeframe. Article 1125 of the Civil Code[1] provides that:

“Where any person fails to discharge an obligation which he has contracted, he shall be liable in damages”

In the case of money obligations, article 1139 of the Civil Code[2] states that “Where the subject matter of the obligation is limited to the payment of a determinate sum, the damages arising from the delay in the performance thereof shall only consists in the interests on the sum due at the rate of 8% per annum”

Another difference with regard to money obligations is that in the case of normal obligations, one must prove that actual damages have been suffered in order to be entitled to claim such damages. This is not the case with money obligations; damages are automatically awarded.

Force Majeure

A debtor may defend himself for the non-performance of an obligation, or for a delay in the said performance by proving force majeure; reasons beyond his control. Three elements would need to be proved in order for force majeure to be pleaded successfully:

1. The impossibility of non-performance must be relative or subjective but absolute in other words meaning that one could not perform, not because it was difficult but because it was impossible. In the case of ‘Mizzi noe vs Attard noe’[3] the debtor company had to perform certain obligations and failed to perform such obligations due to the company’s workers striking. It thus defended itself by claiming force majeure. The court stated that this should not be an excuse because the company could have still outsourced the contract. Once you are bound to deliver merchandise within a certain period of time and you get to know that you will not be able to do so, using your usual means, then one must seek to get it from somewhere else, even if it involves a greater expense.

• The act, which led to the impossibility, must be of a third person who has no relation to the debtor of the obligation. In the case of ‘Farruġia vs Attard’[4]a person had left a car at the repairer to be repaired within a specified certain period of time. Consequently, the owner of the car had to rent a car until the repairs were complete. The repairer failed to abide by the time limit on the basis that the parts ordered had been sent to another company and this had caused the said delay. The repairer thus argued that this was not his fault. The court did not accept this as being force majeure since the third party was directly related to the debtor through a sub contractual relationship.

• The act, the irresistible force, must be supervening. Therefore, it must be something which have occurred after the obligation, and not something which had already come into existence. For instance, one may not blame the non performance on the economic crisis since this does not lead to an impossibility of performance and therefore performance would still be within his responsibility.

In the case of ‘Rizzo vs Dawson’[5] the court stated:

                      “Meta ċ-ċirkostanzi jiżvolgu ruħhom b’mod li jiggravaw l-eżekuzzjonità kuntratt, id-debitur ma jistax jinvoka dawk iċ-ċirkostanzi bħala każ fortuwitu li jintitolah għal kumpens barrani għall eżekuzzjoni tal-kuntratt, jekk dawk iċ-ċirkustanzi kienu prevedibbli u evitabili minnu....”

Finally, a distinction should also be made between an obligation to bring about a result also known as obligazione di risultato and an obligation to try your best means with the hope of achieving something which is also known as obligazione di mezzi.            

For any information or assistance please contact us at info@gtg.com.mt

Author: Dr Delilah Vella

[1] Chapter 16, Laws of Malta.

[2] Ibid.

[3] Court of Appeal, 08/02/1969.

[4] Court of Appeal, 28/04/2008.

[5] Court of Appeal, 15/05/1953.