According to local law, specifically the Notarial Profession and Notarial Archives Act, notaries are public officers. They are charged to receive acts inter vivos and wills, and to attribute public faith thereto. Notaries are empowered to draft private writings containing agreements that purport to create legal rights and obligations between third parties.
Unprofessional conduct counter to the decorum of the profession, negligence and/or abuse in the exercise of the profession or in connection with professional matters are all contemplated in this legislation.
Indeed there exist instances when a professional fails to perform his/her duties to the required standard or breaches a duty of care, in handling or mishandling such duty, possibly resulting in financial loss to the client or to a third party.
The judgment delivered by the Court of Appeal on April 28 in the names ‘Joseph Mamo u b’digriet tal-1 ta’ Novembru, 2018 stante l-mewt ta’ Joseph Mamo l-atti ġew trasfużi f’isem il-mara tiegħu Ludgarda Mamo v Nutar Rachelle Farrugia Buhagiar LL.D’ properly dealt with one such instance.
The plaintiff brought a claim with respect to a public deed entered into in August 2004, by virtue of which the plaintiff had lent a third party a sum of money. The debtor had pledged to repay the debt within three months and the debt was secured by a special hypothec on an immovable property in Birkirkara. It so happened, however, that the debtor did not appear personally on the said public deed; instead his son appeared by virtue of a power of attorney which was purported to have been made in his favour by his father in January 2003.
The power of attorney showed that it had been entered into and concluded before the defendant. When the plaintiff proceeded to demand the payment of the loan and showed the power of attorney to the debtor, the latter stated that he had not borrowed any monies from the plaintiff and that the signature on the power of attorney allegedly granted to his son was not his own.
When the defendant had counter-signed the power of attorney, she had done so before ensuring the principal’s signature on the document
The debtor, in fact, proceeded to suit against his son and against the plaintiff and was successful in obtaining a declaration of nullity of the aforesaid public deed and any judicial acts filed pursuant thereto and on the strength of same.
It resulted in said proceedings instituted by the debtor that when the defendant had counter-signed the power of attorney, she had done so before ensuring the principal’s signature on the document.
The court of first instance, after observing that through a power of attorney a third party is deliberately declared to be able to act on behalf of his/her principal, and after observing that it is the professional’s obligation to ensure that the signatures thereon are effectively tendered in his/her presence, condemned the defendant to pay the plaintiff the sum of €186,349.87 (the amount loaned) in damages together with interest from October 5, 2009. The defendant was found to have acted with recklessness and imprudence in the exercise of her profession.
The court also based itself on the general principles at law that every person is liable for the damage which occurs through his/her fault and that a person shall be deemed to be in fault if, in his/her own acts, he/she does not use the prudence, diligence and attention of a bonus paterfamilias (good father of the family).
Quoting from jurisprudence as far back as the 1960s, the court considered that it could not be doubted that a professional who neglects indispensable formalities, or shows negligence in the exercise of his/her profession or is otherwise responsible for an unfathomable act or omission in his/her professional capacity, is bound to his/her acts.
The defendant lodged appeal from the judgment in first instance.
The Court of Appeal, after brushing aside the defendant’s plea of prescription and her request to have the sum awarded in damages reduced, found a direct causal link between the invalidity of the power of attorney and the damage suffered by the plaintiff.
It quoted P. Cane, affirming that:
“In a tort action, the defendant cannot be held liable to pay damages for injury or damage suffered by the plaintiff unless that injury or damage was caused by that defendant’s tort.
“This is true of strict tort liability as it is of fault-based tort liability. Causation of harm is essential to tort liability because tort law is a set of principles of personal responsibility for conduct.
“Tort law compensates the injured, but only if someone else was responsible for those injuries; and normally being responsible for injuries requires having caused them. In other words, the tort system is a ‘cause-based’ compensation system… Generally speaking a person cannot be held liable in tort unless it can be said that ‘but for’ that person’s tort, the plaintiff’s loss would not have occurred; or, in other words, that the defendant’s conduct was a necessary condition for the plaintiff’s loss; or, differently again, that the defendant’s conduct caused or contributed to the plaintiff’s damage.”
The Court of Appeal stated in no uncertain terms that it was also by virtue of the power of attorney (if it had been properly issued) that the plaintiff had been given security for the payment of the money he had lent. The court found it very clear that the power of attorney was pivotal to the publishing of the public deed which was subsequently declared null on the basis that the power of attorney was not valid due to the irregular way in which it was done.
The defendant’s appeal was therefore dismissed and the judgment in first instance confirmed.
Mary Rose Micallef is an associate at Azzopardi, Borg and Associates Advocates.