We have just celebrated Valentine’s day on February 14, a time which is associated with platonic friendship, family ties and love. Now think about the value of helping and supporting neighbours, community, friends and family − through this pandemic this has been valued more than ever before. The sense of community gives us a sense of mutual accountability, the process by which persons agree to be held responsible for the commitments they have made to each other, relying on trust and mutual understanding.

Being a small country and having a strong Mediterranean influence, Malta has very particular social characteristics. Malta’s family structure and community bonds, unlike in larger countries, are not easily broken. In fact, Malta’s family structure can still be described as extended as opposed to the more cosmopolitan nuclear structure.

In addition to the physical closeness due to the short distances that separate relatives, Maltese families generally tend to keep close contact and though not living under the same roof, relationships are kept at a very personal level. This is not only seen in families but also in neighbours, who more often than not, are elderly persons.

From a different perspective, helping others can also be seen as providing an unsolicited type of service to others. The Maltese Civil Code considers this type of service – in other words known as servigi – as a ‘quasi-contract’. Article 1012 of the Chapter 16 of the Laws of Malta defines quasi-contract as “a lawful and voluntary act which creates an obligation towards a third party, or a reciprocal obligation between the parties.” This means that a relationship is not an ‘official’ contract, but it still protected almost as it if were.

The Maltese courts are often faced with a situation where someone would have expected to be paid compensation for services rendered in favour of a relative or friend. In these cases, should the services rendered to relatives or friends be treated as any another work that gives rise to payment? That is, should serving a friend or family member be paid at a particular hourly rate, as if doing a normal job? Should the person giving service be paid in full, however unsolicited the work done is?

Helping one’s mother is considered to be less worthy of financial compensation than helping a total stranger

The Civil Court, First Court had to deal with this situation in the case decided on February 16 in the names of ‘Claudine Tonne vs deputy curators representing the absent Eun Paul Mcleod et’ (Application Number 784/17).

In this case, the applicant requested the court to declare that the services rendered to the defendants’ father constituted servigi and, therefore, compensation is due to her from the defendants, who were the heirs. The applicant claimed that throughout the years, she had rendered various services to the defendants’ father, who had since died.

During these years, the applicant was the only person taking care of him. During this time, the defendants’ father was undergoing intense medical treatment and it was the applicant who took care of his needs. On a daily basis, she used to take him to get his treatment and made sure that everything was in order. The applicant stated that the defendants, who were the biological children of the deceased, lived abroad and only visited their father a few times.

In this type of case, the court would need to consider different elements to quantify what is due. It considers as well the degree of affinity between the parties, the frequency of the services, the nature of the services, the inconvenience suffered by the person who rendered the services, the extent of the skill and specialisation to grant these services, whether any expenses were incurred by the individual who gave the services and the reason of the person who benefitted from these services. For instance, helping one’s mother is considered to be less worthy of financial compensation than helping a total stranger, since helping a family member is many times done out of love and not out of an expectancy of payment.

There might also be mitigating factors that one would need to consider, for example, whether the person rendering the services benefitted or enjoyed an advantage from the person receiving the services. In some cases, if it results that the person claiming the servigi would have, for example, eaten at the beneficiary’s place, this could be cause for reduction of the sum due.

A very important factor is whether or not the person rendering such services was doing so with the aim of being paid or otherwise. Each and every case must be seen on its own merits – taken into consideration all the facts of the case. For example, in cases where a wealthy person goes voluntarily to help a poor person, the presumption would be that the services were not for remuneration purposes, but for humanitarian reasons. In other words, the court would need to determine if a person had the idea or the expectation of getting paid at the moment during which such services were rendered. Supervening circumstances cannot serve to retrospectively create a right for payment contrary to the original intention of the parties.

In the case at hand, the court analysed the evidence and concluded that the applicant did have an expectation to get paid when rendering the services in subject. In light of the fact that these services were regular and frequent, the court concluded that the compensation due to the applicant was to be in the amount of €43,200.

Both parties to the suit may appeal from this judgment.

Graziella Cricchiola is an associate at Azzopardi, Borg & Abela Advocates.