In the age of Facebook, Instagram and Tinder it might be hard to believe that there was a time when people would actually assert and boast that they are married, even if they were not. This was – surprisingly – a fairly common occurrence.
This oddity had led to the creation of an action under Canon Law, commonly known as the action against the ‘jactitation of marriage’ (derived from the Latin word jactare, which means ‘to throw about or boast of in public, to the detriment of someone else’) – mostly prevalent in common law jurisdictions.
A person could ask the ecclesiastical courts (and later, the common courts) to declare that a marriage being attributed to him or her never existed, and that the boaster be enjoined to refrain from making that claim any further in the future. This was (ironically, one could say) an action tantamount to defamation against slanderous accusations.
A famous action against the jactitation of marriage was brought in an English court in spring of 1819 by Edward Lord Hawke against a Lady named Elizabeth Augusta Corri. He lamented that she had been falsely styling herself as his wife, and therefore unfairly assuming the title of Lady Hawke. The complaint prepared by Lord Hawke’s solicitors inadvertently reveals the precise purpose of this action:
“That Lord Hawke is, in no way, married or united with this lady, (meaning, as the Court presumes, neither in fact nor in law); that she has falsely and maliciously boasted and reported that she is married to him, whereas, in fact, no marriage has taken place; and that, on her being desired to desist from such conduct, she paid no attention, but continued, falsely and maliciously, to boast and report such fact, to the no small prejudice and injury of the complainant.”
Lord Hawke was correct: the parties were indeed not married. But to his shock and horror, he still lost the case. It turned out that Lord Hawke was in an adulterous relationship with Corri, and had even allowed her to introduce herself as his wife, but only while they were cohabiting. That – to the court – was sufficient to dismiss Lord Hawke’s suit.
This is an example of many cases of the sort.
In time, the number of suits against the jactitation of marriage slowly dwindled, and in most jurisdictions, such an action did not survive the dawn of the 20th century; but it did inspire one similar action which forms part of Maltese laws today: the jactitation suit.
True to its brother, the jactitation suit (in Maltese: jattanza or kawża ta’ millantazzjoni) is an action available to a person who is facing a claim made against him by another, which for some reason or another, is not followed by a lawsuit. It may be brought by the holder of a right attacked by a claim. The most important element in the action is that a claim is vaunted (the jactitation), in some judicial act or in writing, which runs counter to the rights of some other person. Furthermore, the claim challenged must not be in respect of an uncertain right, contingent upon any event or condition, or of a right with regard to which no action can, for the time being, be taken; it must refer to a determinate right.
If the person against whom the claim is made wishes to be forever liberated from such a claim, he may – within a year of such jactitation – demand that the court establishes a term (not exceeding three months) by which the claimant must institute proceedings in furtherance of his claim, or else be enjoined in perpetual silence.
Plaintiffs had only moved to institute the action 20 months later, and therefore outside the one-year period providedby law
In other words, one is told to speak now or forever hold his peace.
The case of Philip Dimech pro et noe et vs Joseph Galea, decided by the Civil Court, First Hall on May 14 was an attempt by plaintiffs to exercise this action at law.
They complained that respondent had alleged some sort of right on a property which was theirs – this by means of a legal letter dated February 4, 2017. The action was instituted on October 12, 2018 – that is, more than a year later.
In its judgment, the court went into great detail in analysing the legal principles surrounding the ‘jactitation suit’. It explained that this institute at law satisfies both legal and social necessities; disputes are not left hanging without being resolved, and a person is not allowed to perturb another with claims and pretensions that are never brought to court for final determination.
This does not mean that this is an action that can be brought impetuously. Equally (if not more) important is the rule that one cannot be forced to file a court case (invitus agree nemo cogitur), and as eloquently stated by Prof. Caruana in his renowned Notes on Civil Procedure, the ‘jactitation suit’ is no less than a violation of the principle that no one may be compelled, against his will, to institute proceedings and reduce to an insignificant term the normal period for the institution of a lawsuit.
It is perhaps a necessary evil, that however obliges the court to apply the law strictly.
Article 403 of the Code of Civil Procedure (Chapter 12 of the Laws of Malta) obliges the recipient of claim to act within a year of any jactitation, that is a claim which he seeks to silence.
The court correctly argued that this meant that the legislator in Malta wanted to drastically limit the timeframe in which such an action may be exercised (unlike some of its foreign counterparts, which grant no timeframe).
The court noted that the respondent had forwarded his claim in writing on February 4, 2017, and plaintiffs had only moved to institute the action 20 months later, and therefore outside the one-year period provided by law.
Hence – the court concluded – since one of the core elements of the action was missing, there was no need to further examine the other elements. It rejected the plaintiffs’ action, and ordered them to pay the expenses.
Carlos Bugeja is senior associate at Azzopardi, Borg & Abela Advocates.