Malta is generally defined as a Civil Law jurisdiction with significant contaminations deriving from Common Law, by virtue of its being a former British colony and still today a member of the British Commonwealth.
Perhaps the most significant example of such hybridisation is the institution of the Maltese trust, the eponymous creation of Equity, eventually inserted as an fiduciary obligation under the Maltese Civil Code (Chapter 16 of the laws of Malta), as well as its more relevant regulations under the Trusts and Trustees Act (Chapter 331).
The Maltese Civil Code is the main source of law for contracts, provides under article 1134 that “The debtor shall not be liable for damages if he was prevented from giving or doing the thing he undertook to give or to do, or if he did the thing he was forbidden to do, in consequence of an irresistible force or a fortuitous event”.
The mentioned article, however, fails to provide statutory definitions of “irresistible force” and “fortuitous event, thus resulting in the party wishing to rely on the plea of force majeure to prove such circumstances and thus to base its plea on case law. Bases on notable cases Mizzi noe. vs. Attard noe. case (Court of Appeal 08/02/1969) and George Farrugia et. vs. Pacifika Masini noe. case (First Hall, Civil Court, 07/01/2008), scholars come to the conclusions that:
- the impossibility of non-performance has to be absolute
- the event must be unpredictable;
- the event must be external/comes from a third person; and
- the debtor cannot have any fault in what happens, in the sense that the event could not have been prevented and was absolutely beyond the debtor’s
In the absence of legal precedents, the definition of force majeure falls back to the will of the parties and boils down eventually to how accurately and clearly the relevant contractual provision has been drafted.