Judicial relationships, not unlike natural phenomena, are subject to the effects of time. Time operates either in conjunction with a positive or negative act of man or independently of any such act, and time produces juridical effects. Such is the institute of prescription.
There is a lot to say about ‘prescription’; here, we will limit ourselves to extinctive prescription (prescriptio). This is the plea that purports to seek the extinction of an action through the operation of time, which is described by our law (Article 2107 (2) of the Civil Code) as a “mode of releasing oneself from an action, when the creditor has failed to exercise his right for a time specified by law”.
Prescription was originally tied to payment. The debtor cannot be expected to retain proof of payment of debt forever, just in case sometime down the line, perhaps in 20 years, the creditor re-seeks payment. Cases filed late are hard to prove for both parties, and had it not been for prescription, much of the time of the court would be consumed with cases involving years-pending debts, most of which cannot be proven.
Therefore, the law provides for the extinguishment of a right of action after a certain time as a way to obtain closure. Each action has its own prescription period, so one will find actions that expire after a mere one year and others that expire after 10 years.
Prescription is an institute present in most jurisdictions, not just in Malta.
There is a lot to say about prescription, and today’s case is but a drop in the ocean of legal arguments that may arise. The case of ‘Bank of Valletta plc (C 2833) v Dr Joseph Ellis noe’ concerned Article 2160, which provides for one way how a plaintiff can shield himself against a plea of prescription.
Civil law (and here, we are purposefully excluding Criminal Law) provides for a number of manners in which one can defeat such a plea; for instance, the running of time is interrupted if the alleged debtor makes a payment on account (Article 2134, Civil Code), or if the debtor acknowledges the right of the party against whom such prescription had started (Article 2133, Civil Code).
Originally, through Article 2160, the plea of (short) prescription could be defeated if the plaintiff put the defendant on oath and asked him to declare that he is not a debtor or that he does not remember whether the debt has been paid. If the defendant failed to do that, then prescription would fall and would no longer be a valid defence. At that time, the plaintiff (and not the defendant, who would have raised the plea of prescription) had to do this.
The law provides for the extinguishment of a right of action after a certain time as a way to obtain closure
The idea is that prescription is a matter of conscience, and it would be immoral if the debtor, aware of the debt, were to deny its existence under oath.
In 2017, the law changed and the responsibility shifted completely onto the defendant who would have pleaded prescription, and Article 2160 no longer remained a direct tool for the plaintiff.
Today, “the prescriptions established in articles 2147, 2148, 2149, 2156 and 2157 (of the Civil Code) shall not be effectual if the parties pleading them do not of their own accord declare on oath, during the cause, that they are not debtors or that they do not remember whether the thing has been paid”.
Therefore, ever since the 2017 amendments, the defendant is required to take the oath and make this declaration, or else he would no longer be able to plead prescription. This is vital if a defendant hopes to successfully plead prescription. Oftentimes, defendants fail to do this. Indeed, since the passing of this new law, many prescription pleas have fallen due to this simple omission.
In this case – a debt-collection case – the defendant was appearing as curator ad litem for the proper defendants, so appointed by the court because the actual defendants were absent from Malta. Curators often have no contact with the absent parties but are appointed to safeguard their interest.
The Small Claims Tribunal had rejected the plea of prescription raised by the curator on behalf of the absent defendants and found the debt to be due. As a result, it ordered the defendants to pay the plaintiff the sum of €4,259.49, together with interest and legal costs.
The curator appealed, lamenting that the case should have been decided according to the law that was in force when the case was filed. Interestingly, he further lamented that the position of the tribunal was unfair insofar as he could not – as a mere curator appointed by the court (who is unaware of the exact facts of the case and the situations of the parties) – be expected to testify on oath that the debt is not due as required by Article 2160 (1) of the Civil Code.
With respect to the first grievance, the Court of Appeal stated that the case had been filed in 2018 and the new law (the one shifting responsibility onto the defendant) had come into force in 2017. Therefore, the tribunal was correct in applying the new law and to expect the defendant to take onto him the responsibility of the procedure provided by Article 2160 (1).
With respect to the second grievance, the Court of Appeal stated that Article 2160 (1) makes no distinction between the proper debtor and the debtor represented by a court-appointed curator. The court could not just abandon the wording of the law and decide on its own accord. The curator had observed that it was improbable for a curator to manage to make contact with the defendants he was representing. Thus – he stated – if the decision of the tribunal was to be upheld, it would result in the breach of the fundamental human rights of the absent respondents.
The court stated that as a Court of Appeal in its ordinary jurisdiction, it was not competent to decide questions of a constitutional nature and, as a result, it could not take further cognisance of such a grievance. As a result, the Court of Appeal rejected the appeal, confirmed the appealed judgment and ordered the respondents to pay the costs of the case.
Carlos Bugeja is a partner at Azzopardi, Borg & Abela Advocates.