The warrant in factum is a very mature notion and has only received minor amendments since the introduction of Chapter 12 of the Laws of Malta, in 1855.
This particular type of warrant allows the imprisonment in civil proceedings of a delinquent debtor until he carries out the obligation imposed on him on the basis of a court judgment or a court decree.
Hence, an executive title arising out of a contract requires the competent court to declare the obligation certain, liquid, and due. The execution of the warrant in factum shall be made at the expense of the party against whom the warrant is issued.
Moreover, this mechanism is a means of last resort to prompt the debtor to fulfil the obligation by the creditor by means of forceful enforcement. Since this warrant is only enforceable by a court judgement or a court decree, the Court has the discretion to decide on whether the circumstances merit the use of this warrant of last resort.
On the basis that this warrant is a mechanism of last resort, the Court also has discretion to decide “jekk ġewx esegwiti mezzi oħra ta’ esekuzzjoni jekk dan ikun possibli fiċ-ċirkostanzi[1][2].
In the case of ‘Bartolo vs. Micallef’ the Court exemplified the application of the provision of law pertaining to warrant in factum when rejecting an application on the basis that the provisions of law provide for di fare obligations. The obligation shall be one which entails a relationship between the parties whereby one of the parties is tasked with an act of commission or omission rather than payment of a debt.
Judge Tonio Mallia outlined that the obligations which shall not accord warrant in factum are “ħlas u lanqas sabiex tiġi mogħtija xi ħaġa determinata[3]”.
Hence, the Court in its judgement differentiated between a di fare obligation and di dare obligation and stated that this warrant shall not be granted on the basis of a di dare obligation[4].
This warrant faces scrutiny due to the fundamental human right to liberty. The non-use of this warrant with respect to di dare obligations is backed by Protocol No. 4 article 1 of the ECHR, whereby it is stated that “No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation”. Moreover, the nemo ad impossibilia tenetur doctrine provides that no person shall be held to the impossible and is also present in Chapter 16 of the Laws of Malta.
This warrant was recently acceded to and issued by the court in the recent case ‘Gafa vs. Gafa’, whereby the defendant owed a quantified sum of money to the plaintiff which was confirmed by the Courts of both instances and not yet settled by the debtor. The plaintiff also filed a warrant of seizure which, however, did not cover the debt and remained due.
Hence, the plaintiff filed for the warrant in factum. It was made to the Court’s understanding that the defendant was acting in mala fede by making sure that no funds or assets remained under his name for the plaintiff to assume. Nonetheless, whilst acknowledging that this remedy is not the most suitable, the Court decided in favour of the execution of the warrant in factum[5].
Therefore, an evident question arises. Does mala fede on the part of the defendant give right to marginalise and therefore, waive his right to liberty protecting against the warrant in factum covering di dare obligations?
For more information or assistance please contact Dr Robert Tufigno and Dr Delilah Vella.
[1] English translation: whether other remedies of execution were resorted to if possible, in the respective circumstances;
[2] Fedele Dalli vs. Victor Mallia, Civil Court, First Hall, 26 January 1974.
[3] English translation: payment of a debt or the delivery of a thing.
[4] Emanuel Bartolo vs. Victor Micallef, Civil Court, First Hall, 19 May 2005.
[5] Mario Gafa vs. Noel Gafa, Civil Court, First Hall, 16 November 2023.