Everything that begins must end. Nothing continues forever and neither does the possibility to exercise a legal action. The right to sue is not indefinite but is prescribed by a timeframe. This is the institute of prescription, and more specifically, extinctive prescription.

The notion is that if a set period of time elapses from when one can exercise a legal action, then the action dies and cannot be exercised.

Prescription is dealt with in Title XXV in the Civil Code (Chapter 16 of the Laws of Malta). In Article 2107(2), it is described as a means through which one can absolve oneself of an action when a creditor would not have exercised an action within the timeframe prescribed by law.

While prescription runs automatically, it can be interrupted. Article 2128 provides that prescription is interrupted by the filing and notification of any judicial act. In simple terms, if an alleged creditor files a judicial letter against an alleged debtor, then prescription is interrupted. This means that the prescribed time of prescription starts running afresh (vide Article 2136).

In an action for payment which does not fall under any other category of prescription under any other law – and which does not result from a public deed – the term of prescription is five years. This means that if more than five years elapse from when an action could have been exercised, the respondent in a lawsuit can successfully make the plea of prescription and thus the claims of the plaintiff cannot be acceded to. This is provided in Article 2156(f) of the Civil Code.

Debtor's oath

An important notion that is at times overlooked is that provided in Article 2160(1) of the Civil Code that provides that prescription as per Article 2156 will not have effect if the debtor does not of his/her own volition take an oath during the lawsuit that he/she is not the debtor. This carries with it important implications because something which can be seen as a technicality has the potential to make or break one’s plea of prescription.

This is precisely what the Civil Court First Hall dealt with in the judgment in the names of Emanuel Spagnol et vs Mario Caruana et noe, delivered on July 14,  2023.

The merits concerned services allegedly given by the plaintiffs to John sive Giovanni Simiana. John Simiana passed away on February 20, 2015. The lawsuit was filed on January 11, 2022. Those dates are crucial for the question of prescription.

The role of curators

While the plaintiffs claimed compensation for services rendered to Simiana, the respondents pleaded prescription under Article 2156(f) of the Civil Code. Now, the case was filed against curators acting on behalf of the unknown heirs of John Simiana. This meant that there was no one in his or her personal capacity appearing in the case as a respondent.

So who was obliged to take the oath as per Article 2160(1)?

The court pondered at length on this question. It inquired whether the absence of such an oath rendered the plea of prescription inapplicable.

The court first analysed judgments cited by the plaintiffs on the matter, which all pointed towards the direction that the requirement of Article 2160(1) also binds the curators acting on behalf of the respondents.

The court disagreed. It held that despite recognising the importance of the oath taken under Article 2160 of the Civil Code in ensuring that a plea of prescription will be successful, it did not agree that curators acting on behalf of respondents are also bound by it.

There is a principle at law that if the law wants to state something it will do so, and when this is not done, it is not up to anyone to add to it. This is the principle of ‘ubi lex voluit dixit’. Applying this principle, the court explained that if the law wanted the requirement of the oath of the respondents to also apply to their representatives, it would have done so. But it did not.

Furthermore, in this particular case, the curators had no way to obtain knowledge that would render them able to take such an oath – no heirs or persons interested in the inheritance of the deceased could be identified.

The court went on to explain the forma mentis of prescription. It explained that it is based on the principle that anyone who alleges a right is responsible to exercise it within a reasonable time. The different prescription timelines exist to ensure legal certainty and so that the debtor is not subject indefinitely to proceedings from any person who deems himself/herself a creditor.

Zooming back into the case in question, the court held that if Article 2160 was to be interpreted as imposing the same obligation on curators representing defendants, it would essentially be penalising the curators for simply doing their job. This because in this situation, again, they had no way to be furnished with information that would render them able to take such an oath. Expecting the curators to take such an oath would be wholly unreasonable, the court explained.

Considering all of this, the court proceeded to accede to the plea of prescription raised by respondents and reject all claims put forth by the plaintiffs.

Dr Celine Cuschieri Debono, is an Associate at Azzopardi, Borg and Associates Advocates.