     CIVIL CODE            ġ CAP. 16.             1
CHAPTER 16
CIVIL CODE
    To amend and consolidate the Laws relating to Persons and the Laws respecting rights
relative of Things and the different modes of acquiring and transmitting such rights.
11th February, 1870
 22nd January, 1874
     This Code consolidates the following:
   ORDINANCE VII of 1868 (as amended by Ordinances: I of 1870, IV of 1907, XIV of 1913,
II and V of 1920; Acts: III of 1930, XLII of 1933; Ordinances: XL of 1935, XIX of 1937, III of
1938, XXXIX of 1939 and XXV of 1940); ORDINANCE 1 of 1873 (as amended by Ordinances:
I of 1908, XIII of 1932; Act XXI of 1933; Ordinances: XX of 1934, XVIII of 1938 and XXII of
1939); Article I of ORDINANCE VI of 1895 and Articles 2, 4, 5, 6, 7 (1) and 9 of
ORDINANCE XIII of 1895.
This Code was subsequently amended by Ordinances: II and VII of 1944; Acts: XXVIII of
1948, XI of 1952; Ordinances: IV and XXXIX of 1961, XXI and XXV of 1962; Legal Notice 4
of 1963; Act XXVIII of 1963; Legal Notice 46 of 1965; Acts: XXXI of 1965, II and XXXI of
1966, XVI of 1967, VI of 1968, VI and XXXVIII of 1972, XI and XXV of 1973; Legal Notice 54
of 1973; Acts: XLVI of 1973, I and LIV of 1974, XXXVII of 1975; Legal Notice 93 of 1975; Act
LVIII of 1975; Legal Notice 148 of 1975; Act LV of 1975; Legal Notice 46 of 1976; Acts: XXII,
XXVII and XXXIX of 1976; Legal Notice 43 of 1977; Acts: VII and XI of 1977, XXII and XXX
of 1979, XXX, XLIX and L of 1981, VII and IX of 1982, VI and XIII of 1983, XX of 1984, VII of
1985, XII and XXXI of 1986; Legal Notice 161 of 1989; Acts: VIII of 1990, XVII of 1991, IX of
1992, V and XXI of 1993, III and XXVIII of 1994, and IV, XXIV and XXX of 1995; Legal
Notice 212 of 1997; and Acts IX and XXII of 2000, and XX and XXXI of 2002.
2               CAP.16. ħ                CIVIL CODE
ARRANGEMENT OF CODE
Articles
Short Title  1
BOOK FIRST
OF PERSONS
Title I.  Of the Rights and Duties Arising from Marriage 2-66
  Sub-title I. Of the Mutual Rights and Duties of Spouses 2-6A
  Sub-title II. Of the Mutual Rights and Duties of Ascendants,
Descendants and Brothers  7-34
   Sub-title III. Of Personal Separation 35-66
Title II. Of Filiation.  67-112
  Sub-title I. Of the Filiation of Children conceived or born in Wedlock 67-77
  Sub-title II. Of the Proof of Filiation of Legitimate Children  78 85
  Sub-title III. Of the Filiation of Illegitimate Children and of
Legitimation 86-112
      §I Of the Filiation of Illegitimate Children 86-100A
     §II Of Legitimation 101-112
Title III. Of Adoption 113-130
Title IV. Of Parental Authority 131-156
  Sub-title I. Of the Effects of Parental Authority in regard to Minors 132-149
  Sub-title II. How Parental Authority Ceases 150-156
Title V. Of Minority and of Tutorship  157 187
  Sub-title I. Of Minority 157
  Sub-title II. Of Tutorship 158-187
     §I Of the Appointment and Removal of Tutors 159-171
     §II Of the Tutor’s Administration  172-187
Title VI. Of Majority, Interdiction and Incapacitation  188-192
  Sub-title I. Of Majority  188
  Sub-title II. Of Interdiction and Incapacitation 189-192
Title VII. Of Absentees  193-233
  Sub-title I. Of the Curatorship of Absentees  194-204
  Sub-title II. Of the Provisional Possession of the Property of an
Absentee  205-222
  Sub-title III. Of the Absolute Possession of the Property of an Absentee  223-228
  Sub-title IV. Of the Effects of Absence in regard to eventual Rights of
the Absentee  229-232
  Sub-title V. Of the Curatorship of Minor Children of Absentee 233
Title VIII. Of Acts of Civil Status 234-306
  Sub-title I. General Provisions 234-271
  Sub-title II. Of Acts of Birth 272-292
  Sub-title III. Of Acts of Marriage 293-295
  Sub-title IV. Of Acts of Death 296-306
     CIVIL CODE            ġ CAP. 16.             3
BOOK SECOND
OF THINGS
PART I
OF RIGHTS OVER THINGS
Articles
Title I. Of Things and their Different Kinds 307-319
  Sub-title I. Of Immovable Property 308-311
  Sub-title II. Of Movable Property 312-319
Title II. Of Ownership 320-327
Title III. Of the Rights of Usufruct, Use and Habitation  328-399
  Sub-title I. Of Usufruct 328-388
     §I Of the Rights of the Usufructuary 332-348
     §II Of the Obligations of the Usufructuary 349-377
     §III Of the Manner in which Usufruct Terminates 378-388
  Sub-title II. Of Use and Habitation 389-399
Title IV. Of Praedial Easements 400-488
General Provisions 400-401
  Sub-title I. Easements Created by Law 402-453
     §I Easements arising from the Situation of Property 403-406
     §II Of Walls and Ditches which separate Neighbouring
Tenements 407-433
     §III Of Distances required in certain cases 434-444
     §IV Of Eavesdrop 445
     §V Of Right of Way and of Watercourse 446-453
  Sub-title II. Of Easements created by the Act of Man 454-488
     §I Of the Different Kinds of Easements which can be created
by Act of Man and of the manner in which such
Easements are Created  454-469
     §II Of the manner in which Easements are Exercised 470-478
     §III Of the manner in which Easements are Extinguished 479-488
Title V. Of Community of Property 489-523
  Sub-title I. Of the Nature of the Community of Property and of the
Rights of the Co-owners during the Community 489-495
  Sub-title II. Partition of Common Property 496-514
  Sub-title III. Of Sale by Licitation 515-523
Title VI. Of Possession 524-559
  Sub-title I. Of the Nature of Possession 524-533
  Sub-title II. Of the Rights of the Possessor in case of Molestation 534-539
  Sub-title III. Of the Rights and Obligations as between the Possessor and
the Owner 540-559
     §I Of the Fruits of the Thing possessed, of the Expenses
incurred in connection therewith and of the Right of
Retention 540-550
     §II Of the Obligations of the Possessor with regard to the
Restoration of the Thing 551-557
     §III Of the Particular Effects of the Possession of Movables 558-559
4               CAP.16. ħ                CIVIL CODE
PART II
OF THE MODES OF ACQUIRING AND 
TRANSMITTING PROPERTY AND OTHER RIGHTS 
OVER OR RELATING TO THINGS
Articles
General Provisions 560
Title I. Of Occupancy 561-565
Title II. Of Accession 566-584
  Sub-title I. Of the Right of Accession to what is produced by the Thing 567
  Sub-title II. Of the Right of Accession in regard to Immovable Things 568-571
  Sub-title III. Of the Right of Accession in regard to Movable Things 572-584
Title III. Of Successions 585-958
General Provisions 585-587
  Sub-title I. Of Testate Successions 588-787
    §I Of Wills 588-595
    §II Of the Capacity of Disposing or Receiving by Will 596-613
    §III Of the Property which may be disposed of by Will 614-653
Of Legitim and Disherison 615-630
Of the Rights of the Surviving Spouse and of Illegitimate
Children 631-646
Of the Abatement of Testamentary Dispositions exceeding
the disposable Portion 647-653
     §IV Of the Form of Wills  654-682
Of Ordinary Wills 654-672
Of Privileged Wills 673-682
     §V Of the Institution of Heirs, of Legacies, and of the Right of
Accretion  683-750
Of the Institution of Heirs, and of Legacies 683-685
Of Persons and Things forming the subject of a Disposition 686-709
Of Conditional or Limited Dispositions 710-720
Of the Effects of Legacies and of the Payment thereof 721-736
Of the Right of Accretion 737-742
Of the Revocation and Lapse of Testamentary Dispositions 743-750
     §VI Of Substitution and of Entails 751-761
     §VII Of Testamentary Executors 762-778
     §VIII Of the Opening and Publication of Wills 779-780
     §IX Of the Revocation of Wills 781-787
  Sub-title II. Of Intestate Successions 788-830
General Provisions 788-795
Of the Capacity to Succeed 796-800
Of Representation 801-807
     §I Of Regular Successions 808-816
Of Succession by Legitimate Descendants 808-809
Of Succession by Legitimate Ascendants 810-813
Of Succession by Legitimate Collaterals 814-816
     §II Of Irregular Successions 817-830
  Of the Rights of Illegitimate Children over the Property of
their Parents, and of Succession to Illegitimate Children
dying without issue 817-824
Of the Rights of the Surviving Spouse 825-829
Of the Rights of the Government 830
     CIVIL CODE            ġ CAP. 16.             5
Articles
  Sub-title III. Provisions common to Testate Successions and to Intestate
Successions 831-958
     §I Of the Opening of Successions, of Continuance of
Possession in the person of the Heir, and of Prescription
of certain Actions  831-845
     §II Of the Acceptance and Renunciation of an Inheritance 846-905
Of the Acceptance of an Inheritance 846-859
Of the Renunciation of an Inheritance 860-876
Of the Benefit of Inventory 877-902
Of Vacant Inheritance 903-905
     §III Of Partition 906-912
     §IV Of Collation 913-938
     §V Of the Payment of Debts 939-945
     §VI Of the Effects of Partition and of Warranty of Shares 946-952
     §VII Of Partitions made by the Father, the Mother, or other
Ascendants among their Descendants 953-958
Title IV. Of Obligations in General 959-1235
  Sub-title I. Of Contracts 960-1011
     §I Of the Conditions Essential to the Validity of Contracts 966-991
Of the Capacity of Contracting Parties 967-973
Of Consent 974-981
Of the Subject-matter of Contracts 982-986
Of the Consideration of Contracts 987-991
     §II Of the Effects of Contracts 992-1001
     §III Of the Interpretation of Contracts 1002-1011
  Sub-title II. Of Quasi-contracts, Torts and Quasi-torts 1012-1051
     §I Of Quasi-contracts 1012-1028
     §II Of Torts and Quasi-torts 1029-1051
  Sub-title III. Of the Various Kinds of Obligations 1052-1124
     §I Of Conditional Obligations 1052-1069
Of Conditions in general and of their Various Kinds 1052-1062
Of the Suspensive Condition 1063-1065
Of the Resolutive Condition 1066-1069
     §II Of Obligations with a Limited Time 1070-1079
     §III Of Alternative and Potestative Obligations 1080-1088
     §IV Of Joint and Several Obligations 1089-1109
Of Joint and Several Creditors 1090-1093
Of Joint and Several Debtors 1094-1109
     §V Of Divisible and Indivisible Obligations 1110-1117
Of Divisible Obligations  1113-1114
Of Indivisible Obligations 1115-1117
     §VI Of Obligations with a Penalty Clause 1118-1124
  Sub-title IV. Of the Effects of Obligations 1125-1144
  Sub-title V. Of the Modes of Extinction of Obligations 1145-1231
     §I Of Payment 1146-1178
Of Payment in general 1146-1163
Of Payment with Subrogation 1164-1167
Of Appropriation of Payments 1168-1172
Of Tender of Payment and of Deposit 1173-1178
     §II Of Novation 1179-1189
     §III Of the Remission of Debts 1190-1195
     §IV Of Set-off 1196-1204
6               CAP.16. ħ                CIVIL CODE
Articles
     §V Of Merger 1205-1206
     §VI Of the Loss of the Thing due 1207-1208
     §VII Of Rescission 1209-1231
  Sub-title VI. Of the Proof of Obligations and their Extinguishment 1232-1235
Title V. Of Marriage Contracts 1236-1345
  Sub-title I. Of the Institutes of Dowry and Dower * 1248
     §I Of Settlement of Dowry ** 1249-1258
     §II Of the Rights of the Husband over the Dowry ** 1259-1267
     §III Of the Inalienability of the Dowry ** 1268-1299
     §IV Of Restitution of Dowry ** 1300-1312
  Sub-title II. Of Dower ( Dotarium)  ** 1313-1315
  Sub-title III. Of the Community of Acquests * 1316-1333
  Sub-title IV. Of Paraphernal Property * 1334-1337
  Sub-title V. Of Community of Residue under Separate Administration * 1338-1345
Title VI. Of Sale 1346-1484
  Sub-title I . Of the Contract of Sale 1346-1364
  Sub-title II. Of the Persons who may Buy or Sell 1365-1369
  Sub-title III. Of the Things which may be Sold 1370-1377
  Sub-title IV. Of the Obligations of the Seller 1378-1432
     §I Of Delivery 1379-1407
     §II Of Warranty 1408-1432
Of Warranty of the Quiet Possession of the Thing  sold 1408-1423
Of Warranty in respect of Latent Defects of the Thing sold 1424-1432
  Sub-title V. Of the Obligations of the Buyer 1433-1439
  Sub-title VI. Of the Dissolution and Rescission of Sales  1440-1468
Of Redemption  1441-1468
  Sub-title VII. Of the Assignment of Debts and other Rights  1469-1484
Title VII Of Exchange 1485-1493
Title VIII Of Emphyteusis 1494-1524
Title IX Of Contracts of Letting and Hiring 1525-1643
General Provision 1525
  Sub-title I. Of the Letting of Things 1526-1622
     §I Of the Rights and Obligations of the Lessor 1539-1553
     §II Of the Rights and Obligations of the Lessee 1554-1565
     §III Of the Dissolution of the Lease 1566-1576D
     §IV Of Special Rules as to Leases of Rural Tenements yielding
Fruits 1577-1589
     §V Of the Right of Preference in the Lease of Things 1590-1612
     §VI Of Sub-letting 1613-1622
  Sub-title II. Of the Letting of Work and Industry 1623-1627
     §I Of Carriers by Land or Water 1628-1632
     §II Of Contract of Works or  locatio operis 1633-1643
Title X. Of Contracts of Partnership 1644-1688
General Provisions 1644-1647
  Sub-title I. Of the Different Kinds of Partnership 1648-1652
  Sub-title II. Of the Obligations of Partners as between themselves 1653-1675
  Sub-title III. Of the Obligations of Partners towards Third Parties 1676-1678
* Substituted by Act XXI of 1993.
** Repealed by Act XXI of 1993.
     CIVIL CODE            ġ CAP. 16.             7
Articles
  Sub-title IV. Of the Dissolution of Partnership 1679-1688
Title XI. Of the Constitution of Annuities 1689-1712
  Sub-title I. Of Perpetual Annuities 1694-1701
  Sub-title II. Of Life Annuities 1702-1712
Title XII. Of Gaming and Betting 1713-1717A
Title XIII. Of Compromise 1718-1736
Title XIV. Of Donation 1737-1823
General Provisions 1737-1742
  Sub-title I. Of the Capacity to dispose or receive by Donation 1743-1752
  Sub-title II. Of the Form and Effects of Donations 1753-1784
  Sub-title III. Of the Exceptions to the Rule of Irrevocability of Donations 1785-1792
  Sub-title IV. Of Donations in Contemplation of Marriage 1793-1803
  Sub-title V. Of Donations between Future Spouses or between Husband
and Wife, either by the Marriage Contract or during the
Marriage 1804-1812
  Sub-title VI. Of the Reduction of Donations 1813-1823
Title XV. Of Loan for Use or  Commodatum 1824-1838
Title XVI. Of Precarious Loan or  Precarium 1839-1841
Title XVII. Of Loan for Consumption or  Mutuum 1842-1855A
Title XVIII. Of Mandate 1856-1890
  Sub-title I. Of the Nature and Form of Mandate 1856-1872
  Sub-title II. Of the Obligations of the Mandatary 1873-1879
  Sub-title III. Of the Obligations of the Mandator 1880-1885
  Sub-title IV. Of the ways in which Mandate is Terminated 1886-1890
Title XIX. Of Deposit 1891-1924
  Sub-title I. Of Deposit properly so called 1892-1921
     §I Of Voluntary Deposit 1896-1919
Of the Obligations of the Depositary 1899-1917
Of the Obligations of the Depositor 1918-1919
     §II Of Necessary Deposit 1920-1921
  Sub-title II. Of Conventional Sequestration 1922-1924
Title XX. Of Suretyship 1925-1963
  Sub-title I. Of the Nature and Extent of Suretyship 1925-1933
  Sub-title II. Of the Effects of Suretyship 1934-1950
     §I Of the Effects of Suretyship as between Creditor and Surety 1934-1941
     §II Of the Effects of Suretyship as between Debtor and Surety 1942-1948
    §III Of the Effects of Suretyship as between Co-sureties 1949-1950
  Sub-title III. Of Legal and Judicial Suretyship 1951-1955
  Sub-title  IV. Of the Extinguishment of Suretyship 1956-1963
Title XXI. Of Contracts of Pledge 1964-1986
Title XXII. Of Antichresis 1987-1993
Title XXIII. Of Privileges and of Hypothecs 1994-2095
  Sub-title I. Of Privileges 1999-2010
     §I Of General Privileges 2003-2008
     §II Of Special Privileges 2009-2010
Of Privileges over particular Movables  2009
Of Privileges over Immovables 2010
  Sub-title II. Of Hypothecs 2011-2028
     §I Of Legal Hypothec 2017-2022
     §II Of Judicial Hypothec 2023
     §III Of Conventional Hypothec 2024-2028
  Sub-title III. How Privileges and Hypothecs are Preserved 2029-2052
8               CAP.16. ħ                CIVIL CODE
Articles
  Sub-title IV. Of the Renewal of Registrations 2053-2058
  Sub-title V. Of the Reduction and Cancellation of Registrations 2059-2068
  Sub-title VI. Of the Effect of Privileges and of Hypothecs against Third
Parties in Possession 2069-2083
  Sub-title VII. Of the Extinguishment of Privileges and Hypothecs 2084-2087
  Sub-title VIII.  Of the Order of Priority of Privileges and Hypothecs 2088-2095
Title XXIV. Of the Benefit of Separation of Estates 2096-2106
Title XXV. Of Prescription 2107-2160
General Provisions 2107-2117
  Sub-title I. Of the Causes which Prevent Prescription 2118-2121
  Sub-title II. Of the Causes which Suspend Prescription 2122-2126
  Sub-title III. Of the Causes which Interrupt Prescription 2127-2136
  Sub-title IV. Of the Time Required for Prescription 2137-2160
     §I Of Prescription of Ten, Thirty and Forty Years 2140-2146
     §II Of Certain Particular Prescriptions 2147-2160
SCHEDULE
Part I Fees
Part II Forms
Part III Particulars regarding corrections in Acts of Civil Status
     CIVIL CODE            ġ CAP. 16.             9
Title.
BOOK FIRST
OF PERSONS
Title I
O F THE  R IGHTS AND  D UTIES  A RISING FROM  M ARRIAGE
Sub-title 1
O F THE MUTUAL  R IGHTS AND  D UTIES OF  S POUSES
Reciprocal duties 
of spouses.
Substituted by: 
XXI.1993.3.
2. (1) The Law promotes the unity and stability of the family.
(2) The spouses shall have equal rights and shall assume equal
responsibilities during marriage. They owe each other fidelity and
moral and material support.
Duty to contribute 
towards needs of 
the family. 
Amended by: 
XLVI.1973.2. 
Substituted by: 
XXI.1993.3.
3. Both spouses are bound, each in proportion to his or her
means and of his or her ability to work whether in the home or
outside the home as the interest of the family requires, to maintain
each other and to contribute towards the needs of the family.
Matrimonial home.  
Added by: 
XXI.1993.3.
3A. (1) The matrimonial home shall be established where the
spouses may by their common accord determine in accordance with
the need of both spouses and the overriding interest of the family
itself.
(2) Where the matrimonial home is wholly or in part owned
or otherwise held under any title by one of the spouses, such spouse
may only alienate by title  inter vivos  his or her right over the
matrimonial home:
( a ) with the consent of the other spouse; or
( b ) where such consent is unreasonably withheld, with the
authority of the court of voluntary jurisdiction; or 
( c ) in a judicial sale by auction at the instance of any
creditor of such spouse.
(3) The party who has not given his or her consent to a transfer,
may bring an action for the annulment of a transfer which has not
been effected in accordance with sub-article (2) of this article,
within one year from the registration of the transfer. 
10               CAP.16. ħ                CIVIL CODE
Duty of spouse 
towards children. 
Added by: 
XXI.1993.3.
3B. Marriage imposes on both spouses the obligation to look
after, maintain, instruct and educate the children of the marriage
taking into account the abilities, natural inclinations and
aspirations of the children.
Surname to be used 
by spouse and
children of the 
family. 
Substituted by: 
XXI.1993.3.
4. (1) The spouses shall on marriage adopt the surname of the
husband after which the wife may add her maiden surname.
(2) The wife may, instead, choose to retain her maiden surname
after which she may add her husband’s surname.
(3) The children of the marriage shall take the surname of their
father, after which they may add the maiden surname of the mother. 
Cap.255.
(4) Where the wife intends to retain her maiden surname after
marriage she shall, before marriage, so declare her intention when
applying for the publication of the banns in accordance with the
Marriage Act and shall subscribe the appropriate declaration in the
Act of Marriage. Such declaration shall be irrevocable.
(5) * Sub-article (1) of this article shall apply to a wife who has
married prior to the 1st December, 1993, unless and until she
delivers or causes to be delivered to the Public Registry Office, the
Form Q contained in Part II of the Schedule to this Code showing
that she is opting to reassume her maiden surname. Such note may
not be made after the lapse of six months after the 1st December
1993, and when delivered to the Public Registry Office, the
Director shall register the same in a book kept for the purpose, for
which he shall keep an index under the wife’s maiden surname and
that of her husband.
Maintenance. 5. (1) In regard to maintenance, the spouse shall have a prior
right over the parents or other ascendants.
(2) Where both children and spouse claim maintenance, they
shall be in a position of equality.
(3) It shall not be lawful for either of the spouses to claim
maintenance from the children or other descendants or from the
ascendants if such maintenance can be obtained from the other
spouse.
Cessation of duty 
to supply 
maintenance. 
Amended by: 
XLVI.1973.4.
Substituted by: 
XXI.1993.4.
6. The duty of one spouse to maintain the other shall cease if
the latter, having left the matrimonial home, without reasonable
cause refuses to return thereto.
Disagreement 
between the 
spouses.
Added by:
XXI.1993.4.
6A. (1) In case of any disagreement either spouse may apply to
the court of voluntary jurisdiction for its assistance and the
presiding judge, after hearing the spouses and if deemed opportune
any of the children above the age of fourteen years residing with
the spouses, shall seek to bring about an amicable settlement of
such disagreement.
*This sub-article has been added by virtue of the powers conferred on the Law
Revision Commission by the Statute Law Revision Act, 1980. This sub-article
substantially reproduces sub-article (3) of article 89 of Act XXI of 1993.
     CIVIL CODE            ġ CAP. 16.             11
(2) Where such amicable settlement is not attained and the
disagreement relates to the establishment or change of the
matrimonial home or to other matters of fundamental importance,
the presiding judge, if so requested expressly by the spouses
jointly, shall determine the matter himself by providing the
solution which he deems most suitable in the interest of the family
and family life.
(3) No appeal shall in this case lie from the pronouncement of
the presiding judge.
Sub-title II
Amended by:  
XXI.1993.5.
O F THE  M UTUAL  R IGHTS AND  D UTIES OF  A SCENDANTS, 
D ESCENDANTS AND  B ROTHERS
Duties of parents 
towards children. 
Amended by:  
XXI.1993.6.
7 . (1) Parents are bound to look after, maintain, instruct and
educate their children in the manner laid down in article 3B of this
Code.
(2) In default of the parents, or where the parents do not
possess sufficient means, the liability for the maintenance and
education of the children devolves on the other ascendants.
Duties of children 
towards parents.
8. The children are bound to maintain their parents or other
ascendants, who are indigent.
Duties of spouses 
towards each other 
in the provision of 
maintenance.
Substituted by:  
XXI.1993.7 .
9. A spouse shall not withhold his or her moral support to the
other in any obligation such other spouse may have towards his or
her descendants or ascendants.
When son-in-law is 
not liable towards 
father-in-law or 
mother-in-law.
10. Repealed by: XXI.1993.7.
Effect of death of 
spouse from whom 
affinity derived 
and of children of 
marriage creating 
affinity.
11 . Repealed by: XXI.1993.7.
Order of liability. 
Amended by:  
XXI.1993.8.
12 . Where, according to the foregoing provisions of this sub-
title, there are more persons liable for maintenance, such persons
shall be so liable in the following order:
( a ) the children or descendants of the person claiming
maintenance, in the same order in which they would
according to law be vested with his or her succession;
( b ) the parents;
( c ) the other ascendants in the same order in which they
would according to law be vested with the succession
of the claimant.
12               CAP.16. ħ                CIVIL CODE
Obligation
in solidum.
13. (1) The obligation of such persons as according to the
order set forth in the last preceding article are placed in the same
degree of liability, shall be a joint and several obligation.
Obligation 
in subsidium.
(2) The persons, however, who according to such order, are
placed in a remoter degree shall have only a subsidiary liability, if
those in a nearer degree are unable to discharge their obligation.
Power of court in 
urgent cases.
(3) Nevertheless, it shall be lawful for the court, in urgent
cases, to condemn any of the persons liable for maintenance, in
whatever degree, to supply maintenance, reserving to such person
the right to claim reimbursement from such other persons as,
according to the said order, were bound to supply such
maintenance.
Where several 
persons claim 
maintenance. 
Amended by: 
XXI.1993.9. 
14. (1) Where several persons claim maintenance from a
person who is unable to supply maintenance to all of them, the
order set forth in article 12 shall be observed in determining the
right of priority of such claimants.
(2) Nevertheless, it shall be lawful for the court to depart from
the rule laid down in sub-article (1) of this article in cases of great
urgency, regard being had to the health, age or other circumstances
of the claimants.
Brothers and 
sisters.
15. (1) The liability for maintenance shall extend to brothers
and sisters, of the full or half-blood, only in default of other
persons liable for maintenance.
(2) In any such case the liability of brothers and sisters shall be
joint and several.
(3) The persons mentioned in article 12 shall, in all cases, have
a prior claim over brothers and sisters, except in cases of great
urgency, regard being had to health, age, or other circumstances.
Liability for 
maintenance by 
reason of 
consanguinity or 
affinity. 
Amended by: 
XXI.1993.10.
16. (1) The liability for maintenance, by reason of
consanguinity, shall only exist as between the persons, and in the
cases mentioned in the foregoing articles of this Sub-title.
(2) Such liability shall cease even in regard to such persons, if
the claimant shall have become indigent through his fault:
Provided that this shall not apply where the claimant are the
parents, or other ascendant.
When claim for 
reimbursement of 
maintenance can 
be made.
Amended by: 
XXI.1993.11.
17. (1) Where a brother or sister has received maintenance,
and, within ten years of the last supply thereof, becomes able to
repay the amount so received, he or she shall be bound to repay
such amount to the person supplying the maintenance, provided the
demand for reimbursement be made within the said time.
(2) In no other case, in the absence of an agreement to the
contrary, can a claim be made for reimbursement of the amount of
maintenance supplied under the provisions of this Code.
When liability for 
maintenance 
devolves upon 
heirs. 
18.  Repealed by: XXI. 1993.12.
     CIVIL CODE            ġ CAP. 16.             13
Definition of 
maintenance. 
Amended by: 
XXI.1993.13.
19. (1) Maintenance shall include food, clothing, health and
habitation.
(2) In regard to children and other descendants, it shall also
include the expenses necessary for health and education.
Amount of 
maintenance.
20. (1) Maintenance shall be due in proportion to the want of
the person claiming it and the means of the person liable thereto.
(2) In examining whether the claimant can otherwise provide
for his own maintenance, regard shall also be had to his ability to
exercise some profession, art, or trade.
(3) In estimating the means of the person bound to supply
maintenance, regard shall only be had to his earnings from the
exercise of any profession, art, or trade, to his salary or pension
payable by the Government or any other person, and to the fruits of
any movable or immovable property.
(4) A person who cannot implement his obligation to supply
maintenance otherwise than by taking the claimant into his house,
shall not be deemed to possess sufficient means to supply
maintenance, except where the claimant is an ascendant or a
descendant.
(5) In estimating the means of the person claiming maintenance
regard shall also be had to the value of any movable or immovable
property possessed by him.
When person 
supplying 
maintenance 
becomes unable to 
continue to do so.
21. (1) Where the person supplying maintenance becomes
unable to continue to supply such maintenance, in whole or in part,
he may demand that he be released from his obligation, or that the
amount of maintenance be reduced, as the case may be.
(2) The same shall apply where the indigence of the person
receiving maintenance shall cease, wholly or in part.
Repayment of 
maintenance.
22. (1) Where maintenance has been furnished, no action will
lie for the repayment of such part thereof as may have been
furnished after the cessation of the cause for which maintenance
was due.
(2) Nor can the person to whom maintenance was due claim
from the person liable, upon the latter becoming able to supply
such maintenance, the amount thereof in respect of the time during
which the person liable for maintenance did not furnish it for want
of means.
Maintenance in 
kind.
23. (1) The person bound to supply maintenance may not,
without just cause, be compelled to pay a maintenance allowance if
he offers to take and maintain into his own house the person
entitled to maintenance.
(2) Where maintenance is to be furnished out of the house of
the person liable thereto, he may, on good cause being shown,
supply such maintenance in kind instead of paying an allowance in
money.
14               CAP.16. ħ                CIVIL CODE
Donee primarily 
liable for 
maintenance.
Amended by:  
XXI.1993.14.
24. It shall not be lawful for any person to claim maintenance
from any of the persons liable thereto by reason of consanguinity, if
the claimant can, as donor, obtain maintenance from the donee,
under the provisions of article 1773 of this Code.
Maintenance 
pendente lite .
25. (1) Upon a claim for maintenance, it shall be lawful for
the court,  pendente lite , to order the defendant to pay to the
plaintiff an interim allowance in such amount as is necessary for
bare subsistence, provided the defendant be evidently one of the
persons who, if possessed of sufficient means, would according to
law be liable to supply maintenance to the plaintiff.
(2) Where in any such case the claim for maintenance is
disallowed, the defendant shall be entitled to claim, from the
plaintiff himself, or from the person bound to supply maintenance,
to such plaintiff, the reimbursement of any amount he may have
paid, together with interest thereon.
Son not entitled to 
assignment from 
parents, in 
contemplation of 
marriage, etc.
26. Repealed by: XXI. 1993.15.
When obligation to 
supply 
maintenance 
ceases. 
Amended by: 
XXI.1993.16.
27. (1) The obligation of any person to supply maintenance to
another shall cease if the person in whose favour such obligation is
established, shall contract marriage, notwithstanding the opposition
of the person liable as aforesaid, provided such opposition be made
on good grounds, and the demand from the release from such
obligation be made by the person objecting within the time of six
months following the celebration of the marriage.
(2) Such opposition shall only be operative if it is made by
means of a judicial act to be served on each of the parties intending
to contract the marriage, and filed in the registry of the civil court,
in the island in which the person objecting, or either of the said
parties, resides.
Good grounds of 
opposition to 
marriage.
Amended by: 
XLVI.1973.6.
28. For the purposes of the last preceding article, the want of
the necessary means of subsistence, having regard to the position of
the party to whom the opposition refers, or the bad character of the
other party, shall be deemed to be a good ground of opposition to
the proposed marriage.
Where marriage is 
contracted without 
previous 
publication of 
banns.
Amended by: 
XXI.1993.17.
29. Where the marriage has been celebrated with a total or
partial dispensation from the previous publication of banns, and it
is not shown that the person subject to the obligation mentioned in
article 27, was aware of the proposed marriage at least fifteen days
prior to its celebration, it shall be lawful for such person, even in
default of the opposition referred to in that article, to demand,
within the time of six months following the marriage, his release
from the said obligation on any of the grounds on which such
opposition would have been effectual.
Where marriage is 
celebrated without 
the rites and 
formalities 
preceding it.
30.   Repealed by: XXI. 1993.18.
     CIVIL CODE            ġ CAP. 16.             15
Where liability for 
maintenance 
ceases in regard to 
husband or wife or 
children of person 
related by 
consanguinity.
Amended by:  
XLVI. 1973.7.
31. Repealed by: XXI. 1993.18.
Grounds on which 
parents may refuse 
maintenance to 
children.
Amended by: 
XLVI. 1973.8.
Substituted by: 
XXI. 1993.19.
32. Besides the ground referred to in article 27, parents or
other ascendants may refuse maintenance to children or other
descendants on any of the grounds on which an ascendant may
disinherit a descendant.
Where 
maintenance may 
be refused on 
grounds of 
grievous injury. 
Amended by: 
XXI. 1993.20.
33. It shall be lawful for any person to refuse maintenance to a
brother or sister, on the ground of any grievous injury committed to
his detriment or to the detriment of his or her wife or husband or of
any other relative up to the degree of uncle or aunt, and nephew or
niece, inclusively.
Exception.
two preceding articles can maintenance be refused where the
injury, or other ground of refusal therein mentioned, has taken
place very long before the claim for maintenance is made.
Sub-title III
Substituted by:  
XXI. 1993.21.
O F  P ERSONAL  S EPARATION
Obligation of 
cohabitation to 
cease on 
separation. 
Amended by:
XXI. 1993.22 .
35. (1) By personal separation pronounced by a judgment, or
authorised by a decree, of the competent civil court, the obligation
of cohabitation of the spouses shall cease for all civil effects.
(2) Separation pronounced by any other court shall not produce
any civil effects.
How separation 
may be obtained. 
Amended by:  
XXI. 1993.23.
36. Personal separation may not take place except on the
demand of one spouse against the other and on any of the grounds
stated in the following articles, or by mutual consent of the
spouses, as provided in article 59.
Personal 
separation. 
Amended by:
XXI. 1993.24.
Substituted by:
XXXI. 2002.210.
37 . (1) All suits for personal separation shall be brought
before the appropriate section of the Civil Court as may be
established by regulations made by the Minister responsible for
justice:
Provided that prior to the commencement of proceedings, a
demand may be made for determining the amount of an allowance
for maintenance during the pendency of the proceedings and for the
issue of a decree ordering the payment of such allowance or a
demand for the court to determine by decree who of the spouses, if
any, shall during the pendency of the proceedings continue to
reside in the matrimonial home.
16               CAP.16. ħ                CIVIL CODE
(2) The application containing the demand referred to in the
proviso to subarticle (1) shall be appointed for hearing at an early
date, in any case not later than six working days from the date of its
filing, and shall be served on the respondent without delay together
with the notice of such appointment.
(3) The court shall summarily hear the applicant and the
respondent and shall then, by decree, decide on the demand:
Provided that the court may decide on the demand where
the applicant or the respondent or both the applicant and the
respondent fail to appear on the day of the hearing.
Cap. 12.
(4) The decree referred to in subarticle (3) shall be an executive
title deemed to be included amongst the decrees mentioned in
article 253( a ) of the Code of Organization and Civil Procedure and
shall be enforceable in the same manner and under the same
conditions in which such acts are executed.
(5) The decree referred to in subarticle (3) shall cease to be
enforceable if the action for separation is not instituted within two
months of the date of the decree or within such longer period as the
court may in the same or in a subsequent decree allow.
Cap. 12. (6) The provisions of article 381(3) of the Code of
Organization and Civil Procedure in pursuance of which a court of
contentious jurisdiction may make the order therein specified shall
apply,  mutatis mutandis , as if the court in that subarticle were a
reference to the appropriate section of the Civil Court before which
the demand referred to in the proviso to subarticle (1) is made.
(7) The decree and the order mentioned in this article may be
only reviewed, altered or revoked upon an application made by the
party seeking such review, alteration or revocation.
(8) Subject to the provisions of article 39 of the Constitution,
regulations made under this article may provide for the hearing of
causes  in camera .
Adultery.
Substituted by:  
XXI. 1993.25.
38. Either of the spouses may demand separation on the ground
of adultery on the part of the other spouse.
Adultery of 
husband.
39. Repealed by :  XXI. 1993.25.
Excesses, cruelty, 
etc.
Substituted by:  
XXX. 1981.2.
40. Either of the spouses may demand separation on the
grounds of excesses, cruelty, threats or grievous injury on the part
of the other against the plaintiff, or against any of his or her
children, or on the ground that the spouses cannot reasonably be
expected to live together as the marriage has irretrievably broken
down:
Provided that separation on the ground that the marriage has
irretrievably broken down may not be demanded before the
expiration of the period of four years from the date of the marriage,
and provided further, that the court may pronounce separation on
such ground notwithstanding that, whether previously to or after
the coming into force of this article * , none of the spouses had made
a demand on such ground.
     CIVIL CODE            ġ CAP. 16.             17
Desertion.
Substituted by: 
XXI. 1993.26 .
41. Either of the spouses may also demand separation if, for
two years or more, he or she shall have been deserted by the other,
without good grounds.
Reconciliation. 
Amended by:
XXI. 1993.27.
42. (1) The action for separation shall be extinguished by the
reconciliation of the spouses.
(2) Nevertheless, where a fresh ground for separation arises,
the plaintiff may in support of his demand also allege the previous
grounds.
Death of either of 
the spouses.
43. The death of either of the spouses shall, except in the case
in which the judgment of separation may produce the effects
referred to in articles 48 to 52 inclusively, extinguish the action of
separation, even though such death takes place after the demand.
Grounds on which 
both spouses may 
demand separation 
not to bar action by 
either of them.
44. The existence of grounds on which both spouses may
demand separation shall not operate so as to bar either of them from
bringing a suit for separation against the other.
Discretion of court 
where defendant 
also might have 
demanded 
separation.
45. Nevertheless, where it appears that the defendant also had
grounds on which he or she might have demanded separation, the
court may take such grounds into consideration for the purposes of
the provisions contained in article 52.
Matrimonial home 
pendente lite. 
Amended by: 
XLVI. 1973.9. 
Substituted by:
XXI. 1993.28.
46. During the pendency of the action for separation, either
spouse, whether plaintiff or defendant, may leave the matrimonial
home and may, whether or not he or she has left the matrimonial
home demand that the court shall determine who of the spouses if
any shall reside in the matrimonial home during the pendency of
such action.
Maintenance 
pendente lite.
Added by:
XXI. 1993.28.
46A. During the pendency of the action for separation, either
spouse, whether plaintiff or defendant, may demand from the other
spouse a maintenance allowance in proportion to his or her needs
and the means of the other spouse, and taking into account also all
other circumstances of the spouses.
Care of children. 
Substituted by:  
XLVI. 1973.10; 
XXI. 1993.28 .
47. During the pendency of the action the court shall give such
directions concerning the custody of the children as it may deem
appropriate, and in so doing the paramount consideration shall be
the welfare of the children.
Consequences for 
spouse giving 
cause to 
separation.
Amended by:
XXI. 1993.29.
48. (1) The spouse who shall have given cause to the
separation on any of the grounds referred to in articles 38 and 41,
shall forfeit -
( a ) the rights established in articles 631, 633, 633A, 825,
826 and 827 of this Code;
( b ) the things which he or she may have acquired from the
other spouse by a donation in contemplation of
marriage, or during marriage, or under any other
gratuitous title;
( c ) any right which he or she may have to one moiety of
the acquests which may have been made by the
*This article as substituted by Act XXX of 1981 came into force on 31st July, 1981.
18               CAP.16. ħ                CIVIL CODE
industry chiefly of the other spouse after a date to be
established by the court as corresponding to the date
when the spouse is to be considered as having given
sufficient cause to the separation. For the purposes of
this paragraph in order to determine whether an
acquest has been made by the industry chiefly of one
party, regard shall be had to the contributions in any
form of both spouses in accordance with article 3 of
this Code;
( d ) the right to compel, under any circumstances, the other
spouse to supply maintenance to him or her in virtue of
the obligation arising from marriage.
(2) The things mentioned in paragraph  (b)  of sub-article (1) of
this article shall revert to the other spouse, and the acquests
mentioned in paragraph  (c)  of the said sub-article shall remain
entirely in favour of such spouse, saving any right which the
children or other third parties may have acquired thereon prior to
the registration of the judgment of separation in the Public
Registry.
Where wife gives 
cause to 
separation.
Amended by: 
XLVI. 1973.11 .
49. Repealed by: XXI. 1993.30.
Where husband 
gives cause to 
separation.
Amended by: 
LVIII. 1975.2 .
50. Repealed by: XXI. 1993.30.
Power of court in 
certain cases. 
Amended by:
XXI. 1993.31 .
51. Where separation is granted on any of the grounds
mentioned in article 40, it may produce any of the effects
mentioned in article 48, if the court, having regard to the
circumstances of the case, deems it proper to apply the provisions
of that article, in whole or in part.
Discretion of court 
in certain cases.
Amended by: 
XXI. 1993.31 .
52. It shall also be in the discretion of the court to determine,
according to circumstances, whether the provisions of article 48
shall be applied, wholly or in part, in regard to both spouses or to
one of them, or whether they shall not be applied at all in regard to
either of them, if both spouses shall have been guilty of acts
constituting good grounds for separation.
Preservation of 
rights or benefits 
by spouse 
obtaining 
separation.
53. The spouse who has obtained separation shall retain every
right or benefit which he or she may have acquired from the other
spouse, even though such right or benefit may have been granted to
him or her on condition of reciprocity, and such reciprocity does
not take place.
Obligation for 
maintenance.
Substituted by: 
XXI. 1993.32.
54. (1) The spouse against whom the separation is pronounced
shall not, as a result of such separation, be relieved from the
obligation of supplying maintenance to the other spouse, where,
according to the provisions of Sub-title I of this Title, such
maintenance is due.
(2) The amount of such maintenance shall be determined
     CIVIL CODE            ġ CAP. 16.             19
having regard to the means of the spouse bound to supply
maintenance and the needs of the other spouse, taking into account
also all other circumstances of the spouses.
(3) Notwithstanding any other provision of this Code, on
separation being pronounced, the court may if it deems it
appropriate in the circumstances, order the spouse liable to supply
maintenance to pay to the other spouse, in lieu of the whole or part
of such maintenance, a lump sum, which the court deems sufficient
in order to make the spouse to whom maintenance is due financially
independent or less dependent of the other spouse, as the case may
be.
(4) For the purposes of sub-article (3) of this article, the court
shall, among the circumstances, consider the possibility of the
person to whom maintenance is due, of receiving training or
retraining in a profession, art, trade or other activity or to
commence or continue an activity which generates an income, and
order the lump sum for that purpose.
(5) The court may direct, according to circumstances, that the
payment of a lump sum referred to in the previous sub-articles of
this article, be made by equal or unequal instalments spread over a
reasonable period of time.
(6) The court may also direct that in lieu of all or part of the
lump sum referred to in sub-article (3) of this article, the spouse
liable thereto shall assign to the other spouse property in ownership
or in usufruct, use or habitation.
(7) Where there is a supervening change in the means of the
spouse liable to supply maintenance or the needs of the other
spouse, the court may, on the demand of either spouse, order that
such maintenance be varied or stopped as the case may be. Where
however, a lump sum or an assignment of property has been paid or
made in total satisfaction of the obligation of a spouse to supply
maintenance to the other spouse, all liability of the former to
supply maintenance to the latter shall cease. Where instead, the
lump sum or assignment of property has been paid or made only in
partial satisfaction of the said obligation, the court shall, when
ordering such lump sum payment or assignment of property,
determine at the same time the portion of the maintenance satisfied
thereby and any supervening change shall in that case be only in
respect of the part not so satisfied and in the same proportion
thereto.
Cessation of 
community of 
acquests and 
community of 
residue under 
separate 
administration. 
Substituted by:  
XXI. 1993.32.
55 . (1) On separation being pronounced the court shall direct
that the community of acquests or the community of residue under
separate administration existing between the parties shall cease as
from the day on which the judgment becomes  res judicata.
(2) The court may however where in its opinion circumstances
so warrant direct that an asset or assets comprised in the
community be not partitioned before the lapse of such period after
the cessation of the community as it may in its direction determine.
(3) Any direction given by the court in virtue of sub-article (2)
20               CAP.16. ħ                CIVIL CODE
of this article, may on good cause being shown, be changed or
revoked by the court.
Matrimonial home.
Added by:
XXI. 1993.32.
55A. (1) On separation being pronounced, the court shall on the
demand of either of the spouses, decide according to circumstances
whether any one of them shall be entitled to reside in the
matrimonial home.
(2) The court may, on the demand of either spouse, vary at any
time such decision if there is a substantial change in circumstances.
(3) The provisions of sub-article (2) of article 3A of this Code
shall not apply in the case of spouses who are legally separated,
unless the contrary is not agreed to between the spouses or is
ordered by the court having jurisdiction to pronounce the personal
separation; and such agreement or order shall only be effective in
regard to third parties as from the date when the deed or order is
registered in the Public Registry.
Custody of the 
children after 
separation.
Substituted by: 
XXI. 1993.32.
56. (1) On separation being pronounced the court shall also
direct to which of the spouses custody of the children shall be
entrusted, the paramount consideration being the welfare of the
children.
(2) It shall be lawful for the court, if it considers such measures
to be strictly necessary, having regard to all relevant circumstances,
to direct that the children be placed in the custody of third parties
or in alternative forms of care.
(3) It shall be lawful for the court to give any such directions in
the judgment of separation, although in the action relating thereto
no demand has been made respecting the custody of the children.
(4) The court may, at any time, revoke or vary such directions
respecting the children, where the interests of the children so
require.
(5) The court may moreover where circumstances so require,
determine that one or both of the parents shall be deprived wholly
or in part of the rights of parental authority.
Right of father and 
mother to watch 
over maintenance 
of children. 
Amended by:
XXI. 1993.33.
57. (1) Whosoever may be the person to whom the children
are entrusted, the father and mother shall maintain their right to
watch over their maintenance and education, and shall still be
bound to contribute thereto, according to law.
(2) It shall be in the discretion of the court, according to
circumstances, to fix the time, place, and manner in which the
father or mother shall have access to the children.
(3) It shall be lawful for the court entirely to forbid such access
if it may be detrimental to the welfare of the children.
Power of court to 
suspend action of 
separation.
58. (1) The court may, where it shall deem it expedient so to
do in the interest of the spouses and the children, order the
suspension of the action of separation for such time as it may deem
proper, and give such interim directions as circumstances may
require.
     CIVIL CODE            ġ CAP. 16.             21
(2) The decree ordering the suspension of the action, or giving
such interim directions, shall be subject to appeal.
Separation by 
mutual consent. 
Amended by:
XXI. 1993.34.
59. (1) Personal separation may, subject to the authority of the
court, be effected by mutual consent of the spouses, by means of a
public deed.
(2) The court shall, before giving its authority, admonish the
parties as to the consequences of the separation, and shall
endeavour to reconcile them.
Directions as to the 
custody of the 
children.
Amended by:
XXX. 1981.3.
60. (1) The court, on authorizing the separation, shall in the
decree give its directions as to the person in whose custody the
children are to be placed.
(2) It shall be lawful for the court at any time to revoke or vary
such directions, for the better welfare of the children.
Renunciation of 
inheritance.
(3) Notwithstanding the provisions of any other law, it shall be
lawful for either of the spouses to renounce in a public deed of
separation to the succession of the other spouse.
Agreement 
between spouses 
respecting the 
custody of the 
children.
Amended by:
XLVI. 1973.13.
61. (1) Any agreement between the spouses respecting the
custody of the children may at any time, on the demand of either of
the spouses, or of any relative of either of the spouses, be annulled
by the competent court, where the interests of the children so
require.
(2) In any such case, the court shall give the necessary
directions as to the person in whose custody the children are to be
placed, and as to the mode of their maintenance and education.
Surname of wife 
after separation. 
Substituted by:
XXI. 1993.35.
62. (1) Notwithstanding the provisions of sub-article (4) of
article 4 of this Code, the wife may, on separation, choose to revert
to her maiden surname. In the case of a consensual separation, a
declaration of such choice shall be made in the public deed of
separation, and in the case of a judicial separation, by a note filed
in the records of the case before final judgment.
(2) The court may also, at the request of the husband which
may be made at any time before judgment, prohibit the wife from
continuing to use the husband’s surname after separation, where
such use may cause grave prejudice to the husband.
Effects of 
separation in 
regard to third 
parties. 
Added by: 
XXI.1993.35.
62A.  Personal separation shall only be operative in regard to
third parties from the day on which the judgment or the public
deed, as the case may be, shall have been registered in the Public
Registry. Any such registration shall include a reference to any
declaration or prohibition with regard to the surname of the wife
after the judgment.
Parties may put an 
end to separation.
63. The spouses separated whether by a judgment or by mutual
consent may at any time reunite, and thus put an end to the effects
of separation, wholly or in part, saving any right which third parties
may have acquired.
22               CAP.16. ħ                CIVIL CODE
Voluntary 
cohabitation to 
operate as a 
reunion.
Amended by:  
XXI. 1993.36.
64. (1) Voluntary cohabitation shall operate as a reunion, and
shall restore the obligations of cohabitation and of maintenance
arising from marriage. 
Other effects of 
separation may 
cease by public 
deed.
(2) Any other effect of the separation, however, shall not cease
except in virtue of a public deed.
Deed may take 
place after return to 
cohabitation.
65. Any such deed may take place even after the spouses shall
have returned to cohabitation, but, in any such case, the deed shall
be void if it is not made with the authority of the court.
When effects of 
separation cease in 
regard to third 
parties.
66. In all cases, the effects of the separation shall not cease in
regard to third parties, except from the day on which the deed is
registered in the Public Registry.
Title  II
O F  F ILIATION
Sub-title I
O F THE  F ILIATION OF  C HILDREN CONCEIVED OR BORN IN 
W EDLOCK
Child born in 
wedlock.
67. A child conceived in wedlock is held to be the child of the
mother’s husband.
Presumption of 
conception during 
wedlock.
68. A child born not before one hundred and eighty days from
the celebration of the marriage, nor after three hundred days from
the dissolution or annulment of the marriage, shall be deemed to
have been conceived in wedlock.
When husband 
may not repudiate 
child.
69. The husband cannot repudiate a child born before the
lapse of one hundred and eighty days after the marriage in any of
the cases following:
( a ) if, before the marriage, he was aware of the pregnancy;
( b ) if he himself has made the declaration required for the
drawing up of the act of birth, acknowledging himself
to be the father of the child;
( c ) if the child be declared not viable.
When husband 
may repudiate 
child.
Substituted by: 
XXI. 1993.37.
70. (1) The husband can repudiate a child conceived in
wedlock-
( a ) if he proves that during the time from the three
hundredth day to the one-hundred-and-eightieth day
before the birth of the child, he was in the physical
impossibility of cohabiting with his wife on account of
     CIVIL CODE            ġ CAP. 16.             23
his being away from her, or some other accident; or
( b ) if he proves that during the said time he was  de facto
or legally separated from his wife:
  Provided that he may not repudiate the child if there
has been, during that time, a reunion, even if
temporary between him and his wife; or
( c ) if he proves that during the said time he was afflicted
by impotency, even if such impotency was only an
impotency to generate; or
( d ) if he proves that during the said time the wife had
committed adultery or that she had concealed the
pregnancy and the birth of the child, and further
produces evidence of any other fact (which may also
be genetic and scientific tests and data) that tends to
exclude such paternity.
(2) The declaration alone of the mother to the effect that the
husband is not the father of the child shall not be sufficient to
exclude the paternity of the husband.
(3) The court may in an action of disavowal invite all or any of
the parties including the child whose filiation is in dispute to
submit to the tests necessary to establish the genetic proof that may
be relevant to the case. The court shall be entitled to draw such
inferences as may be justified by the refusal to submit to such tests.
Where the child whose filiation is in dispute is a minor, the court
itself shall determine whether the child shall submit to the tests.
Impotency.
Adultery.
Time within which 
to bring action for 
disavowal of child.
Amended by:
XXI. 1993.38 .
73. Where it is competent to the husband to bring an action to
disown a child, he must bring such action -
( a ) within six months from the day of the birth, if he was
then in Malta;
( b ) within six months of his return to Malta, if he was
absent at the time of the birth;
( c ) within six months of the discovery of the fraud, if the
birth was concealed from him.
Where husband 
dies before 
bringing action for 
disavowal.
Amended by:
XXI. 1993.39.
74. Where the husband dies without having brought the action
for disavowal, but before the expiration of the legal time, the heirs
may bring such action within six months to be reckoned from the
day on which the property of the deceased shall have passed into
the hands of the child, or from the day on which the heirs shall have
been by the child disturbed in the possession of such property.
Against whom 
action is directed.
75. (1)  The action for disavowal shall be directed -
( a ) against the child if he is of age; or
( b ) if the child is a minor or under any disability to be
sued, against a curator appointed by the court before
24               CAP.16. ħ                CIVIL CODE
which the action is brought:
  Provided that the court may depute the tutor already
appointed to the child.
(2) In all cases, the mother shall be made a party to the suit.
Child born after the 
three-hundredth 
day of dissolution 
of marriage.
76. The legitimacy of a child born three hundred days after the
dissolution or annulment of the marriage may be impeached by any
person interested.
Husband ’ s 
physical 
impossibility of 
cohabitation.
Amended by:
XXI. 1993.40.
77. The legitimacy of a child born in wedlock may also be
impeached by any person interested if he proves that, during the
time from the three-hundredth day to the one-hundred-and-
eightieth day before the birth of the child the husband was in the
physical impossibility of cohabiting with his wife on account of his
being away from her.
Sub-title II
O F THE  P ROOF OF  F ILIATION OF  L EGITIMATE  C HILDREN
Registration of 
birth.
78. (1) The filiation of legitimate children is proved by the act
of birth registered in the Public Registry.
(2) It may also be proved by the parochial registers.
Possession of 
status of legitimate 
child.
79. In default of evidence as provided in the last preceding
article, the continued possession of the status of a legitimate child
shall be sufficient.
Possession of 
status to be proved 
by series of facts.
80. (1) Such possession shall be established by a series of
facts which, collectively, go to show the connection of filiation and
relationship between an individual and the family to which he
claims to belong.
(2) Such facts are chiefly the following:
( a ) that the individual has always borne the surname of the
father of whom he claims to be the child;
( b ) that the father has treated him as his child, and has, as
such, provided for his maintenance, education, and
establishment in life;
( c ) that he has been constantly acknowledged as such in
society;
( d ) that he has been acknowledged as such by the family.
No person can 
claim a status
contrary to that 
attributed to him 
by the act of birth.
81. (1) No person may claim a status contrary to that which is
attributed to him by the act of birth as a legitimate child and the
possession of a status in conformity therewith.
(2) Likewise, it shall not be lawful to contest the status of a
legitimate child in respect of a person who possesses a status in
conformity with his act of birth.
     CIVIL CODE            ġ CAP. 16.             25
Where act of birth 
and possession of 
status are wanting.
82. In default of the act of birth and the possession of status, or
if the child shall have been registered under a false name, or as
being born of parents uncertain, or in case of supposition or
substitution of a child, although in these last two cases, there exists
an act of birth in conformity with the status possessed by the child,
the proof of filiation may be made by any other evidence
admissible according to law.
Evidence to the 
contrary.
83. Proof to the contrary may be made by evidence tending to
show that the claimant is not the child of the woman he alleges to
be his mother, or, where the maternity is proved, that he is not the
child of the mother’s husband.
Action not barred 
by prescription.
84. In regard to the child the action for claiming the status of a
legitimate child shall not be barred by prescription.
When action may 
be brought by heirs 
of child.
85. (1) Nevertheless, where the child failed to bring such
action, it may not be brought by his heirs or descendants, unless he
died in the period of nonage, or within five years after attaining his
majority.
(2) Where the child has brought the action and dies during its
pendency, his heirs or descendants may continue the proceedings.
Sub-title III
O F THE  F ILIATION OF  I LLEGITIMATE  C HILDREN AND OF 
L EGITIMATION
§  I .  O F THE  F ILIATION OF  I LLEGITIMATE  C HILDREN
Acknowledgement 
of illegitimate 
children.
86. An illegitimate child may be acknowledged by the father
and the mother, either jointly or separately:
Provided that where the person acknowledging himself to be the
father of the child is a minor the acknowledgment is null.
How made.
made in the act of birth, or by any other public deed either before or
after the birth.
(2) Any declaration of paternity or maternity made otherwise
by either of the parents, or by both, can only be admitted as
evidence of filiation in an affiliation suit.
Effects.
parent making it, and it shall not confer on the child so
acknowledged any right against the other parent.
Illegitimate child 
of either spouse 
born before 
marriage.
Amended by:
XLVI. 1973.15.
89. An illegitimate child of one of the spouses born before and
acknowledged during the marriage may not be brought into the
matrimonial home, except with the consent of the other spouse,
unless such other spouse has already given his or her consent to the
acknowledgment.
26               CAP.16. ħ                CIVIL CODE
Parental authority 
over illegitimate 
child.
Substituted by:
XLVI. 1973.16 .
Amended by:
XXI. 1993.2, 41.
90. (1) The parent who has acknowledged an illegitimate
child shall have in regard to him all the rights of parental authority
other than the legal usufruct.
(2) If the interests of the child so require, the court may order
that only one of the parents shall exercise the rights of parental
authority; the court may also restrict the exercise of these rights
and, in serious cases, exclude both parents from the exercise of
these rights.
Appointment of 
tutor by court.
Amended by:
XLVI. 1973.18;
XXI. 1993.2.
91. In default of parental authority, the appointment of a tutor
to the illegitimate child shall be made by the court.
Surname of 
illegitimate child. 
Substituted by: 
XXXI.1965.2. 
Amended by: 
L.N. 148 of 1975; 
XXX. 1979.2; 
XXX. 1981.4; 
XII. 1986.2; 
VIII.1990.3; 
XXI.1993.42.
92. (1) An illegitimate child, if he has been acknowledged by
the father, shall assume his surname, to which may be added the
surname of the mother; otherwise, he shall assume the surname of
the mother.
(2) The provisions of this article shall apply -
( a ) to such persons as shall be acknowledged or born on or
after the lst day of January, 1966; and
( b ) with regard to the assumption of the surname of the
father, to such persons, acknowledged by the father
before the lst day of January, 1966, as shall be
declared by the court to have always borne the
surname of the father:
  Provided that such a declaration may only be given
on an action brought by way of writ of summons
before the Civil Court, First Hall, or the Court of
Magistrates (Gozo), as the case may be, against the
Director of the Public Registry (to which action the
provisions of articles 254 and 255 shall  mutatis
mutandis  apply) and the court making such declaration
shall order that it be registered in the Public Registry
by means of a note in the margin of the relative entry
in the register book of acts of birth.
(3) For the purposes of this article a declaration of paternity by
a judgment of the court shall have the same effect as an
acknowledgment.
(4) An illegitimate child who has not been acknowledged by
the father, or the descendants of such child, may retain the surname
- being any surname other than that of the mother - which the child
has assumed and which shall be declared by the court that he has
always borne, and the proviso to paragraph  (b)  of sub-article (2) of
this article shall apply to such declaration.
(5) Notwithstanding the provisions of sub-article (1) of this
article, a natural child born and acknowledged by the father, before
the first day of January, 1966 and who is neither known by the
surname of the mother nor has assumed the surname of his father in
virtue of sub-article (2)  (b)  of this article, or the descendants of
such child, may retain the surname, being a surname other than that
     CIVIL CODE            ġ CAP. 16.             27
of the mother or of the father, which the child has assumed and
which shall be declared by the court that he has always borne, and
the proviso to paragraph  (b)  of sub-article (2) of this article shall
apply to such declaration.
Duty of father 
towards 
illegitimate child. 
Amended by: 
XXXI.1965.3; 
XXI.1993.43.
93. (1) The father is bound to maintain and educate, according
to his means, the illegitimate child whom he has acknowledged,
and, even afterwards, to supply maintenance to such child, in case
of need, provided such child has no husband or wife or descendants
in a position to supply such maintenance.
(2) The father is under a like liability in regard to the legitimate
descendants of the predeceased illegitimate son or daughter, if their
surviving parent or their legitimate ascendants are unable to
provide for them.
Where paternity is 
declared by
judgment of the 
court.
Substituted by: 
XXXI.1965.4.
94. The provisions of article 93 shall apply to a person who has
not acknowledged a child but whose paternity has been declared by
a judgment of the court.
Obligation of 
mother. 
Amended by: 
XXXI.1965.5.
95. The mother, even though she has not acknowledged the
child, shall have the same obligations and rights as the father who
has acknowledged the child.
Rights of parent to 
refuse maintenance 
where child refuses 
to follow directions 
of parent. 
Amended by: 
XXXI.1965.6; 
XXI.1993.44.
96. The parent, whether he or she has acknowledged the child
or not, may deny maintenance if such child refuses, without just
cause, to follow the directions of the parent in regard to his conduct
and education.
Rights of parent to 
refuse maintenance 
where child refuses 
to live in house 
appointed by the 
parent. 
Amended by: 
XXXI.1965.7; 
XXI.1993.45.
97. It shall also be lawful for the parent, whether he or she has
acknowledged the child or not, to deny maintenance to the child, if
such child refuses to live in the house which the parent for just
cause and with the approval of the court has appointed for his
habitation, as also in any other case in which according to law it is
competent to a parent to refuse maintenance to a legitimate child.
Duties of 
illegitimate child in 
respect of 
maintenance. 
98. An illegitimate child is bound to supply maintenance to his
parent, if the latter has no husband or wife or legitimate ascendants
or descendants from whom he or she may obtain such maintenance.
Acknowledgement 
may be impeached 
by child.   
99. An acknowledgment of an illegitimate child may be
impeached by the child as well as by any other party interested.
Any party 
interested may 
contest demand for 
declarator of 
paternity. 
100. A judicial demand for a declarator of paternity or maternity
may also be contested by any party interested.
Genetic proof. 
Added by: 
XXI.1993.46.
100A.   In causes to which the preceding article makes reference,
the court may, without prejudice to any evidence that may be
produced by the parties according to law, invite the parties to
submit to examinations as referred to in sub-article (3) of article 70,
and in the same manner and in the same circumstances may, in case
28               CAP.16. ħ                CIVIL CODE
of refusal, draw such inferences as mentioned in that sub-article.
§  II .  O F  L EGITIMATION
How legitimation 
is effected.
101.   Children born out of wedlock may be legitimated by the
subsequent marriage of their parents, or by a decree of the court of
voluntary jurisdiction.
Conditions for 
legitimation.
102.   Legitimation by subsequent marriage shall not take place
unless the children have been acknowledged by both parents by
means of a declaration in the act of marriage, or otherwise as
provided in sub-article (1) of article 87, or unless their paternity
and maternity have been declared by a judgment of the court.
Effects of 
legitimation by 
subsequent 
marriage.
103. Children legitimated by subsequent marriage shall be
vested with the rights of legitimate children as from the day of the
celebration of the marriage, if they shall have been acknowledged
on that day or previously, or if their filiation shall have been
declared before the marriage by a judgment of the court.
Where 
acknowledge- 
ment or declarator 
takes place after 
marriage.
104.   Where the acknowledgment or judicial declarator takes
place after the marriage, the children shall only acquire the rights
of legitimate children as from the day of such acknowledgment or
declarator.
Descendants of 
children 
legitimated by 
subsequent 
marriage.
105.   The marriage of the parents shall also operate the
legitimation of their predeceased children in favour of the
descendants of the latter, legitimate or legitimated by subsequent
marriage, provided such predeceased children shall have been
acknowledged as provided in article 102, or their paternity and
maternity shall have been declared by a judgment of the court.
Legitimation by 
decree of court of 
voluntary 
jurisdiction.
106.   Legitimation by a decree of the court of voluntary
jurisdiction shall take effect by virtue of the decree itself, and no
other act shall be required.
Conditions for 
legitimation by 
decree of court of 
voluntary 
jurisdiction.
107.   The legitimation referred to in the last preceding article
may not be granted unless -
( a ) it is demanded by the parent wishing to legitimate the
child; and
( b ) where such parent is married, it is proved that his or
her spouse has given his or her consent thereto; and
( c ) the consent of the child, if of age, or his welfare, if a
minor, is proved.
Power of court to 
refuse legitimation.
108.   The court shall have power, according to circumstances, to
refuse the legitimation, where the applicant can legitimate the child
by subsequent marriage, or has children legitimate or legitimated
by subsequent marriage, or descendants of such children.
Registrar of court 
to cause 
registration of 
legitimation.
109.   The legitimation shall, upon the demand of the registrar of
the said court, be registered in the Public Registry, as provided
under articles 290 and 291 within fifteen days from the date of the
decree, unless it has already been registered upon the demand of
any other person.
     CIVIL CODE            ġ CAP. 16.             29
Surname to be 
assumed by child 
legitimated by 
decree of court. 
Amended by: 
XXI.1993.47.
110. (1) A child legitimated by a decree of the court shall
assume the surname of the parent upon whose demand he shall have
been legitimated.
(2) Where the legitimation has taken place upon the demand of
both parents, the child shall assume the surname of the father, to
which may be added the surname of the mother.
Effects of 
legitimation by 
decree of court as 
between parent and 
child. 
111. (1) Subject to any other provision of this Code in regard
to succession, the parent and the legitimated child shall, as from the
date of the decree, be in respect to each other in the same condition
as a parent and a legitimate child.
(2) Such child shall not acquire any other right deriving from
consanguinity.
Child may demand 
legitimation after 
death of parent.
112.   Where one of the parents has, in a will or other public
deed, declared his or her wish to legitimate the child, such child
may, after the death of such parent, make a demand for
legitimation, saving the power of the court as provided in article
108, in case the deceased shall have left children, legitimate or
legitimated by subsequent marriage.
Substituted by: 
XXI.1962.2.
Title III
O F  A DOPTION
Interpretation. 
Amended by: 
XLVI.1973.21.
113.   (1) For the purposes of this Title and of any regulations
made thereunder a person shall be deemed to make or participate in
arrangements for the adoption of a person or for the placing of a
minor in the care or possession of any person if (as the case may
be) -
( a ) he enters into or makes any agreement or arrangement
for, or for facilitating, the adoption of a person by any
other person; or
( b ) he enters into or makes any agreement or arrangement
for, or facilitates, the placing of a minor in the care or
possession of another person.
(2) In this Code and in any other law, unless the context
otherwise requires -
( a ) any reference to a person or persons related to another
person in any line or degree shall, in respect of an
adopter or an adopted person or in tracing the
relationship through an adopter or an adopted person,
be construed as a reference to the person or persons
who would be so related to him if the adopted person
were the child of the adopter born to him or her in
lawful wedlock and were not the child of any other
person, and without prejudice to the generality of this
provision, any reference to the name, names or
30               CAP.16. ħ                CIVIL CODE
surname of the parent or parents of an adopted person
shall be construed as a reference to the name, names or
surname of the adoptive parent or parents;
( b ) "adoption" means an adoption effected under this Code
and, subject to such conditions and other provisions,
and with effect from such date, if any, as may be
contained in an order made by the Minister responsible
for justice under this sub-article, includes an overseas
adoption; and grammatical variations thereof or
cognate expressions shall be construed accordingly;
( c ) "illegitimate children" means illegitimate children who
have not been adopted;
( d ) "overseas adoption" means an adoption of such class or
description, and effected under the law of such country
outside Malta, as the Minister responsible for justice
may by order specify.
Power to make 
adoption decrees. 
114. (1) Adoption may only take place with the authority of
the court of voluntary jurisdiction (hereinafter in this Title referred
to as "the court") granted by decree (hereinafter referred to as "an
adoption decree") made on the application of a person of either sex.
(2) An adoption decree may be made on the application of two
spouses, who have been married for a period of not less than five
years and are living together, authorizing them jointly to adopt a
person and may not be made on the application of one only of such
spouses:
Provided that where the person to be adopted is the natural
offspring of either of the spouses then, subject to the provisions of
paragraph  (c)  of sub-article (3) of article 115, the adoption decree
may be made notwithstanding that the application is made only by
the natural parent of the person to be adopted and that the spouses
have been married for less than five years.
(3) Save in the case of two spouses living together, an adoption
decree shall not be made authorizing more than one applicant to
adopt a person.
(4) An adoption decree may be made in respect of a person who
has already been the subject of an adoption decree under this Title;
and in relation to an application for an adoption decree in respect of
such a person, the adopter or adopters under the previous or last
previous adoption decree shall be deemed to be the parent or
parents of that person for all the purposes of this Title.
Restrictions on 
making of adoption 
decrees. 
Substituted by: 
VII.1977.2.
115. (1)  An adoption decree shall not be made unless the
applicant or, in the case of a joint application, one of the
applicants-
( a ) has attained the age of thirty years but has not attained
the age of sixty years and is at least twenty-one years
older than the person to be adopted; or
( b ) is the mother or father of the person to be adopted and
has attained majority.
     CIVIL CODE            ġ CAP. 16.             31
(2) An adoption decree shall not be made -
( a ) in respect of a person who has attained the age of
eighteen years except in favour of a sole applicant who
is the mother or the father of the person to be adopted;
or
( b ) in respect of a female in favour of a sole applicant who
is a male, unless the court is satisfied that there are
special circumstances which justify as an exceptional
measure the making of an adoption decree; or
( c ) in favour of a person who is in holy orders or bound by
solemn religious vows; or
( d ) in favour of a tutor in respect of the person who is or
was under his tutorship, except after having rendered
an account of his administration or given adequate
guarantee of the rendering of such account.
(3) Subject to the provisions of article 117, an adoption decree
shall also not be made -
( a ) in any case, other than the case of an illegitimate
person, except with the consent of every person who is
a parent of the person to be adopted and is alive;
( b ) in the case of an illegitimate person, except with the
consent of the mother if she is alive;
( c ) on the application of one of two spouses under the
provisions of sub-article (2) of article 114, except with
the consent of the other spouse;
( d ) when the person to be adopted has attained the age of
fourteen years, except with his consent.
(4) Subject to the provisions of article 117, before an adoption
decree is made the court shall -  
( a ) in the case of an illegitimate person, hear the natural
father if he has acknowledged the person to be adopted
as his child or if the court is satisfied that he has
contributed towards his maintenance or has shown a
genuine and continuing interest in him;
( b ) where the person to be adopted is under tutorship or is
living with a person who is not his parent but who has
his care and custody in fact, hear the tutor or the
person who has such care and custody in fact, as the
case may be.
Care and 
possession of 
persons to be 
adopted before 
adoption. 
Substituted by: 
VII.1977.3.
116. (1) Except where the applicant or one of the applicants is
a parent of the person to be adopted, an adoption decree shall not be
made unless the person to be adopted has been continuously in the
care and possession of the applicant for at least three consecutive
months immediately preceding the date of the adoption decree, not
counting any time before the date which appears to the court to be
the date on which the person to be adopted attained the age of six
weeks.
32               CAP.16. ħ                CIVIL CODE
(2) Except where the applicant or one of the applicants is a
parent of the person to be adopted, an adoption decree shall not be
made in respect of a person who at the hearing of the application is
below the upper limit of the compulsory schoolage unless the
applicant has, at least three months before the date of the decree,
given notice in writing to the prescribed authority of his intention
to apply for an adoption decree in respect of that person.
(3) Where an application for adoption is pending in any court,
any parent of the person to be adopted who has signified his
consent to the making of an adoption decree in pursuance of the
application and any tutor shall not be entitled, except with the leave
of the court, to remove the person to be adopted from the care and
possession of the applicant; and in considering whether to grant or
refuse such leave the court shall have regard to the welfare of the
person to be adopted.
Power to dispense 
with consent. 
Amended by: 
XXXVIII.1972.2; 
L.1981.2.
117. (1)  The court may dispense with any consent or with any
hearing required by article 115 if it is satisfied -
( a ) in the case of a dispensation with any such consent,
that the person who is required to give his consent is
incapable of giving such consent or, in the case of a
parent, that he cannot be found or has abandoned,
neglected or persistently ill-treated, or has persistently
either neglected or refused to contribute to the
maintenance of, the person to be adopted or had
demanded or attempted to obtain any payment or other
reward for or in consideration of the grant of the
consent required in connection with the adoption; or
( b ) in the case of a dispensation with any such hearing,
that the person who is required to be heard cannot be
found or is incapable of expressing his views; or
( c ) that in view of special and exceptional reasons and
taking into account the interests of all persons
concerned, it is proper for it to dispense with any such
hearing and consent.
(2) The court may dispense with the consent of the spouse of an
applicant for an adoption decree if satisfied that the person whose
consent is to be dispensed with cannot be found or is incapable of
giving the consent, or that the spouses have separated and are living
apart and that the separation is likely to be permanent.
(3) The consent of any person in accordance with the
provisions of paragraph  (a)  of sub-article (3) of article 115 to the
making of an adoption decree in pursuance of an application may
be given (subject to conditions with respect to the religious
persuasion in which the person to be adopted is to be brought up)
without knowing the identity of the applicant for the decree.
Evidence of 
consent. 
Amended by: 
XXVIII.1963.2; 
XXXVIII.1972.3; 
VII.1977.4.
118. (1) Where any parent or the person to be adopted does not
attend in the proceedings on an application for an adoption decree
for the purpose of giving his consent to the making of the decree,
then, subject to the provisions of sub-articles (2) and (3) of this
     CIVIL CODE            ġ CAP. 16.             33
article, a document signifying his consent to the making of such a
decree and his understanding of the nature and effect of such a
decree shall, if the person in whose favour the decree is to be made
is named in the document or (where the identity of that person is
not known to the consenting party) is distinguished therein in the
prescribed manner, be sufficient evidence of that consent and of his
understanding the nature and effect of the decree, whether the
document is executed before or after the commencement of the
proceedings; and where any such document is attested as
mentioned in paragraph  (b)  of sub-article (2) of this article, it shall
be sufficient evidence as aforesaid without further proof of the
signature of the person by whom it is executed.
(2) A document signifying the consent of the mother of a
person to be adopted shall not be sufficient evidence under this
article unless -
( a ) the person to be adopted is at least six weeks old on
the date of the execution of the document; and
( b ) the document is attested on that date by a
Commissioner for Oaths or an advocate or a notary or,
if executed outside Malta, by a person of any such
class as may be prescribed.
(3) A document signifying the consent of the person to be
adopted shall not be sufficient evidence under this article unless the
person in whose favour the decree is to be made is named in the
document.
(4) For the purposes of this article, a document purporting to be
attested as mentioned in paragraph  (b)  of sub-article (2) of this
article shall be deemed to be so attested, and to be executed and
attested on the date and at the place specified therein, unless the
contrary is proved.
Function of court 
as to adoption 
decrees.
119. (1)  The court before making an adoption decree shall be
satisfied -
( a ) that every person whose consent is necessary for the
making of the adoption decree and whose consent is
not dispensed with, has consented to and understands
the nature and effect of the adoption decree for which
application is made; and in particular in the case of
any parent that he understands that the effect of the
adoption decree will be permanently to deprive him or
her of his or her rights in respect of the person to be
adopted;
( b ) that the decree if made will be for the welfare of the
person to be adopted;
( c ) that the applicant has not received or agreed to receive,
and that no person has made or given or agreed to
make or give to the applicant, any payment or other
reward in consideration of the adoption except such as
the court may sanction.
34               CAP.16. ħ                CIVIL CODE
(2) In determining whether an adoption decree if made will be
for the welfare of the person to be adopted, the court shall have
regard (among other things) to the health of the applicant, as
evidenced, in such cases as may be prescribed, by the certificate of
a registered medical practitioner, and shall give due consideration
to the wishes of the person to be adopted, having regard to his age
and understanding and to the religious persuasion of such person
and of his parents.
(3) The court in an adoption decree may impose such terms and
conditions as the court may think fit, and in particular may require
the adopter to make for the person to be adopted such provision (if
any) as in the opinion of the court is just and expedient.
Curator. 
Amended by: 
VII.1977.5.
120.   Upon an application for an adoption decree of a person to
be adopted, the court shall appoint such person as may be
prescribed to act as special curator of the person to be adopted with
the duty of safeguarding the interests of the person to be adopted
before the court.
Rights and duties.  
Amended by: 
XLVI.1973.20; 
XXI.1993.48.
121.   Upon an adoption decree being made -
( a ) the person in respect of whom the adoption decree is
made shall be considered with regard to the rights and
obligations of relatives in relation to each other, as the
child of the adopter or adopters born to him, her or
them in lawful wedlock and as the child of no other
person or persons, relationship being traced through
the adopter or adopters; 
( b ) the relatives of the person in respect of whom the
adoption decree is made shall lose all rights and be
freed from all obligations with respect to such person;
( c ) the tutor, if the person in respect of whom the adoption
decree is made is placed under tutorship, shall
terminate his administration and, within three months
from the date of the adoption decree, render an account
thereof to the adopter.
Judgments, decrees 
or orders for 
payment of 
maintenance.  
Amended by:  
VII.1977.6.
122.  (1) Where an adoption decree is made in respect of a
person who is illegitimate, then, unless the adopter is his mother
and the mother is a single woman, any judgment, decree or order
for the payment of maintenance in force with respect to that person,
and any agreement whereby the father of that person has
undertaken to make payments specifically for his benefit, shall
cease to have effect, but without prejudice to the recovery of any
arrears which are due under the judgment, decree, order or
agreement at the date of the adoption decree.
(2) After an adoption decree has been made in respect of a
person who is illegitimate, no judgment, decree or order for the
payment of maintenance shall be made with respect to that person
unless the adoption decree was made on the application of the
mother of that person alone.
Property rights. 123. (1) Where, at any time after the making of an adoption
decree, the adopter or the adopted person or any other person dies
     CIVIL CODE            ġ CAP. 16.             35
intestate in respect of any property, that property shall devolve in
all respects as if the adopted person were the child of the adopter
born in lawful wedlock and were not the child of any other person.
(2) In any disposition of property made, whether by
instrument  inter vivos  or by will, after the date of an adoption
decree -
( a ) any reference (whether express or implied) to the child
or children of the adopter shall, unless the contrary
intention appears, be construed as, or as including, a
reference to the adopted person;
( b ) any reference (whether express or implied) to the child
or children of the adopted person’s natural parents or
either of them shall, unless the contrary intention
appears, be construed as not being, or as not including,
a reference to the adopted person; and
( c ) any reference (whether express or implied) to a person
or persons related to the adopted person in any line or
degree shall, unless the contrary intention appears, be
construed as a reference to the person or persons who
would be related to him in that line or degree if he
were the child of the adopter born in lawful wedlock
and were not the child of any other person.
(3) For the purposes of the devolution of any property in
accordance with this article and for the purposes of the construction
of any disposition to which sub-article (2) applies, an adopted
person shall be deemed to be related to any other person being the
adopted child of the adopter as brother or sister.
(4) Where an adoption decree is made in respect of a person
who has been previously adopted, the previous adoption shall be
disregarded for the purposes of this article in relation to the
devolution of any property on the death of a person dying intestate
after the date of the subsequent adoption decree, and in relation to
any disposition of property made, or taking effect on the date of a
person dying, after that date.
Adopted person to 
assume adopter ’ s 
surname.   
Substituted by: 
XXX.1981.5.
124. Upon an adoption decree being made, the person in respect
of whom the adoption decree is made shall assume the surname of
the adopter:
Provided that where the person to be adopted is a child below the
age of four years, the adopter may, with the approval of the court,
give such child a new name.
Registration of 
adoptions. 
Amended by: 
XXXI.1965.8,9;  
III.1994.2.
125. (1) Every adoption decree shall contain a direction to the
Director of the Public Registry to make in the Adopted Persons
Register (established by article 269 of this Code) an entry in
accordance with Form H set out in Part II of the Schedule to this
Code and (subject to the provisions of the next following sub-
article) shall specify the particulars to be entered under the
headings in columns 2 to 7 of that form.
(2) For the purposes of compliance with the requirements of
36               CAP.16. ħ                CIVIL CODE
the last foregoing sub-article -
( a ) where the precise date of the birth of the person to be
adopted is not proved to the satisfaction of the court,
the court shall determine the probable date of his birth
and the date so determined shall be specified in the
decree as the date of his birth;
( b ) where the country and place of birth of the person to
be adopted are not proved to the satisfaction of the
court, then, if it appears probable that that person was
born in Malta, he shall be treated as having been born
in Malta, and in any other case the particulars of the
country of birth may be omitted from the decree and
from the entry in the Adopted Persons Register,
and the surname to be specified in the decree as the surname of the
person to be adopted shall be the surname of the applicant.
(3) Where upon any application for an adoption decree there is
proved to the satisfaction of the court the identity of the person to
be adopted with a person to whom an entry in the register book of
acts of birth (established by article 238 of this Code) relates, any
adoption decree made in pursuance of the application shall contain
a direction to the Director of the Public Registry to cause the entry
in the register book of acts of birth to be marked with the word
"Adopted".
(4) Where an adoption decree is made in respect of a person
who has previously been the subject of an adoption decree under
this Title, the decree shall contain a direction to the Director of the
Public Registry to cause the entry in the Adopted Persons Register
to be marked with the word "Re-adopted".
(5) Upon an adoption decree being made, the Registrar of
Courts shall cause the decree to be communicated to the Director of
the Public Registry within fifteen days of the making of such
decree and the Director of the Public Registry shall, within fifteen
days of the receipt of such communication, cause compliance to be
made with the directions contained in the decree both in regard to
marking any entry in the register book of acts of birth with the
word "Adopted" and in regard to making the appropriate entry or
entries in the Adopted Persons Register, and shall on every such
decree write the date of receipt thereof and sign his name thereto.
(6) The provisions of sub-article (2) of article 238, sub-article
(1) of article 245, articles 248, 249, 252, 260, 261 and, subject to
the provisions of article 269, article 251 shall  mutatis mutandis
apply to the Adopted Persons Register and entries therein, extracts
therefrom and certificates and other documents relating thereto or
connected therewith.
Legitimation: 
revocation of 
adoption decrees 
and cancellations 
in register.
Amended by:
XXIV.1995. 362.
126. (1) Where any person adopted by his father or mother
alone has subsequently become a legitimated person on the
marriage of his father and mother, the court of voluntary
jurisdiction may, on the application of any of the parties concerned,
revoke that decree.
     CIVIL CODE            ġ CAP. 16.             37
(2) Where an adoption decree is revoked under this article,
the Registrar of Courts shall cause the revocation to be
communicated to the Director of the Public Registry who shall
cause to be cancelled -
( a ) the entry in the Adopted Persons Register relating to
the adopted person; and
( b ) the marking with the word "Adopted" of any entry
relating to him in the register book of acts of birth,
and a certified copy of any such entry as is referred to in paragraph
(b)  shall be deemed to be an accurate copy only if both the marking
and the cancellation are omitted therefrom.
Amendment of 
decree and 
rectification of 
registers.
Amended by:
XXIV.1995.362.
127. (1) The court by which an adoption decree has been made
may, on the application of the adopter or of the adopted person,
amend the decree by the correction of any error in the particulars
contained therein and may, if satisfied on the application of any
person concerned that a direction for the making of an entry in the
register book of acts of birth or the Adopted Persons Register
included in the decree in pursuance of sub-article (3) or sub-article
(4) of article 125 was wrongly so included, revoke that direction;
and where an adoption decree is so amended or a direction revoked,
the Registrar of Courts shall cause the amendment to be
communicated to the Director of the Public Registry within fifteen
days of the making of such decree; and any necessary correction of
or addition to the Adopted Persons Register or cancellation of the
marking of an entry in the register book of acts of birth or the
Adopted Persons Register shall be made accordingly.
(2) Where an adoption decree has been amended any certified
copy of the relevant entry in the Adopted Persons Register which
may be issued pursuant to sub-article (5) of article 269 shall be a
copy of the entry as amended, without the reproduction of any note
or marking relating to the amendment or of any matter cancelled
pursuant thereto; and a certified copy of an entry in any register,
being an entry the marking of which has been cancelled, shall be
deemed to be an accurate copy only if both the marking and the
cancellation are omitted therefrom.
Prohibition of 
certain payments. 
Amended by:  
XXVIII.1963.3; 
XIII.1983.5; 
VIII.1990.3.
128. (1)  No person shall make or give or agree or offer to
make or give, or receive or agree to receive or attempt to obtain any
payment or other reward for or in consideration of - 
( a ) the adoption by that person of any person;
( b ) the grant by that person of any consent required in
connection with the adoption of a person;
( c ) the transfer by that person of the care and possession
of the person to be adopted with a view to his
adoption;
( d ) the making by that person of any arrangements for the
adoption of a person.
(2) Any person who contravenes the provisions of sub-article
(1) of this article shall be guilty of an offence and shall, on
38               CAP.16. ħ                CIVIL CODE
conviction by the Court of Magistrates, be liable to imprisonment
for a term not exceeding six months or to a fine  (multa)  not
exceeding one hundred liri or to both, and the court may order a
minor in respect of whom the offence was committed to be
removed to a place of safety until he can be restored to his parents
or tutor or until other arrangements can be made for him.
(3) This article, insofar as it relates to the making of any
arrangements for the adoption of a person, does not apply to -
( a ) payments made for the maintenance of that person;
and
( b ) advocates’, notaries’, legal procurators’ or medical
practitioners’ remuneration for professional services.
(4) Any conviction under the provisions of sub-article (2) of
this article shall be notified by the registrar of the court making the
conviction to the court of voluntary jurisdiction, and the latter court
shall thereupon take such measures as it considers expedient in the
best interests of the person adopted or to be adopted including, if it
deems fit, the revocation of the adoption decree.
Regulations. 
Amended by:  
L.N. 4 of 1963; 
XXXI.1966.2. 
129. The Minister responsible for justice may make
regulations-
( a ) for prescribing anything which by this Title is
authorized or required to be prescribed;
( b ) for the protection, supervision and control of minors
who are placed in the care and possession of such
persons as may be prescribed;
( c ) for regulating the making of or participating in
arrangements for the adoption of a person or for the
placing of a minor in the care or possession of another
person;
( d ) for the registration, supervision and control of
adoption societies and for the cancellation of such
registration;
( e ) for any incidental and supplementary matter for which
the Minister responsible for justice thinks it expedient
for the purposes of the regulations to provide,
including in particular the entering and inspection of
premises to which the regulations relate by persons
authorized in that behalf by the Minister responsible
for justice with a view to securing compliance with the
regulations;
( f ) for establishing the penalties to which any offender of
any of the regulations may be liable, which penalties
shall not exceed imprisonment for a term of six
months.
Overseas 
adoptions.  
Added by: 
XLVI.1973.22.
130. (1) Subject to sub-article (2) of this article, where an
overseas adoption is to be treated as an adoption in accordance with
the provisions of article 113 the order (however called) of the
authority outside Malta whereby such adoption is effected shall
     CIVIL CODE            ġ CAP. 16.             39
have effect as if it were an adoption decree made by the court in
Malta; and the provisions of this Code and of any other law shall
apply accordingly with such adaptations and variations as may be
appropriate in the circumstances.
(2) Sub-article (1) of this article shall apply subject to any
review, revocation or annulment by a competent court or other
authority of the order whereby the overseas adoption was effected
and to any determination or order in relation thereto.
(3) Without prejudice to the foregoing provisions of this
article, in respect of an overseas adoption the court shall have -
( a ) the power to determine whether such overseas
adoption is to be treated as an adoption in accordance
with article 113;
( b ) the power to direct the appropriate entry or marking
relating to the overseas adoption to be made in the
registers and acts referred to in this Title and the
making of any rectification or cancellation thereof;
( c ) the power to determine whether, and the extent to
which, a review, revocation or annulment of such an
adoption is to have effect in Malta;
( d ) the power to order that an overseas adoption shall
cease to have effect as an adoption or to be valid, in
Malta on the grounds that the adoption is contrary to
public policy or that the authority which purported to
authorize the adoption was not competent; and
( e ) generally all such powers as it has in respect of an
adoption under this Code,
and may exercise such powers on an application for that purpose or
in the exercise of its powers under this article.
Title IV
Amended by: 
XXI.1993.2.
O F  P ARENTAL  A UTHORITY
Child subject to 
parental authority.  
Substituted by: 
XLVI.1973.23; 
XXI.1993.49.
131. (1) A child shall be subject to the authority of his parents
for all effects as by law established. Title
(2) Saving those cases established by law, this authority is
exercised by the common accord of both parents. After the death of
one parent, it is exercised by the surviving parent.
(3) In case of disagreement between the parents on matters of
particular importance, either parent may apply to the court of
voluntary jurisdiction indicating those directions which he or she
considers appropriate in the circumstances.
(4) The court, after hearing the parents and the child if the
latter has reached the age of fourteen years, shall make those
suggestions which it deems best in the interest of the child and the
40               CAP.16. ħ                CIVIL CODE
unity of the family. If the disagreement between the parents
persists, the court shall authorise the parent whom it considers
more suitable to protect the interest of the child in the particular
case, to decide upon the issue, saving the provisions of article 149.
(5) In the case of an imminent danger of serious prejudice to
the child either parent may take such measures which are urgent
and cannot be postponed.
(6) With regard to third parties in good faith, each of the
spouses shall be deemed to act with the consent of the other where
he or she performs an act relative to parental authority relative to
the person of the child.
Sub-title I
Amended by:
XXI. 1993.2.
O F THE  E FFECTS OF  P ARENTAL  A UTHORITY IN REGARD TO 
M INORS
Child to obey and 
not to abandon 
parental house. 
Amended by:
L.N. 148 of 1975;
XXI. 1993.50.
132. (1) A child shall obey his parents in all that is permitted
by law.
(2) Saving any other provision of law respecting enlistment in
any disciplined force, it shall not be lawful for a child, without the
consent of the parents, to leave the parental house, or such house as
his parents may have appointed for him.
(3) Where the child leaves the house without such consent, the
parents shall have the right to recall him, and, if necessary, demand
the assistance of the Police.
Power of court to 
authorize child to 
leave parental 
house.
133. (1) Nevertheless, it shall be lawful for the court of
voluntary jurisdiction, for just cause, and without disclosing the
same, to authorize the child to leave the parental house.
(2) Where delay might be detrimental, it shall be lawful for any
magistrate to give the requisite order, making a report thereof, not
later than the following working day, to the said court, which may
confirm, revoke, or vary such order.
Power of the court 
to authorize child 
to be placed in 
alternative care. 
Substituted by:
XXI. 1993.51.
134.  (1) It shall be lawful for the parents, if they are unable to
control the child, to remove him from the family, assigning to him,
according to the means of the parents, such maintenance as is
strictly necessary.
(2) In any such case, the parents may also, where necessary and
upon obtaining the authority of the court of voluntary jurisdiction,
place the child, for such time as is stated in the decree, in some
alternative form of care, which the court will according to
circumstances consider suitable, to be, at the expense of the
parents, cared for and treated in such manner as the court may deem
conducive to the discipline and education of the child.
(3) The demand for such authority may be made even verbally;
and the court shall make the necessary order thereon without any
     CIVIL CODE            ġ CAP. 16.             41
formal proceedings, and without giving its reasons therefor.
Parents to be 
representatives of 
the children.
Substituted by:
XXI. 1993.51.
135.   The parents jointly represent their children, whether born
or to be born, in all civil matters.
Parents ’  power of 
administration.
Amended by:
XXX. 1981.6.
Substituted by:
XXI. 1993.51.
136. (1) The parents jointly administer the property of their
children, whether born or to be born, except such as has devolved
on such children on condition that it shall be administered solely by
one of the parents or by third parties.
(2) Acts of ordinary administration may however be performed
by either of the parents without the intervention of the other.
(3) Acts of extraordinary administration which must be
performed by the parents jointly include - 
( a ) the alienation of movables by nature, including motor
vehicles for the object of profitably investing the
proceeds thereof;
( b ) the collection of capitals that may become due;
( c ) the granting of personal rights of enjoyment over
immovable property;
( d ) the acceptance of an inheritance, legacy or donation in
the name of the child;
( e ) the partition of movables by nature;
( f ) acts which require the authorisation of the court in
terms of sub-article (4) of this article.
(4) The parents may not alienate immovables or movables by
operation of law belonging to the child nor may they contract loans
or other debt, on his behalf hypothecate or pledge his property,
enter into a suretyship, enter into any compromise, or submit a
dispute to arbitration except in case of necessity, or manifest utility
and with the authority of the court and in any such case the court
may, at the request of the parents, authorise one only of the parents
to represent the child on the relative deed.
(5) In case of disagreement between the parents the provisions
of article 131 shall apply.
Acceptance of 
inheritance.
Amended by:
XLVI. 1973.24;
XXX. 1981.7;
XXI. 1993.52.
137. (1) Any inheritance devolving on the children, shall be
accepted by the parents with the benefit of inventory, unless such
inventory is dispensed with by the court.
(2) If one of the parents is unable or unwilling to accept such
inheritance, the inheritance may be accepted by the other parent
with the authority of the court. If both parents are unable or
unwilling to accept such inheritance the court may, upon the
demand of the child or of any of his relatives, authorise the
acceptance thereof either by the child himself, if he has attained the
age of fourteen years, or otherwise by a special curator to be
appointed by the court.
42               CAP.16. ħ                CIVIL CODE
Cap. 239.
(3) Where the surviving spouse has filed the return in respect
of property comprised in a chargeable transmission in accordance
with the provisions of the Death and Donation Duty Act * , such
spouse shall be deemed, for the purposes of this article, to have
accepted the inheritance devolving upon the minor with the benefit
of inventory with respect to such property as shall have been
declared in the said return, which inventory shall be deemed to
have been duly drawn up and published according to the said
return, without the necessity of any further formality or
authorization required by any law.
Nullity of acts may 
only be set up by 
father, etc.
Amended by:
XXI. 1993.53.
138.   Where any act is performed in contravention of the
provisions of the foregoing articles, the nullity thereof may only be
set up by either parent or by the child or his heirs or other persons
claiming under him.
Conflicting
interests.
Substituted by:
XXI. 1993.54.
139. In case of conflicting interests between the children, or
between the children and either parent, the competent court shall,
according to circumstances, appoint one or more special curators:
Provided that it shall be lawful for either parent to decline to
represent any of the children against another or against the other
parent.
Parents to render 
account of
administration.
Substituted by:
XXI. 1993.54.
140. (1) The parents are bound to render to the child, on the
latter attaining majority, an account of the property and the fruits of
those things of which they have not the usufruct; and of the
property only and of the administration thereof in regard to things
of which they have the legal usufruct.
(2) If parental authority ceases before the child attains majority
the parents shall render the account on the date of such cessation.
(3) Without prejudice to any liability of the parent, either
parent may render such account on behalf also of the other parent.
Property of which 
the parents have 
usufruct.
Amended by:
XXI. 1993.55.
141. (1) The parents shall have the usufruct of such property
as devolves on the child by succession, donation, or any other
gratuitous title, including property derived from entail.
(2) They shall retain such usufruct until the child attains
majority, unless the latter dies before that time.
Property not 
subject to legal
usufruct.
Amended by:
XXI. 1993.56.
142.   The following property shall not be subject to the legal
usufruct:
( a ) property bequeathed or given to the child on condition
that the parents or either of them shall not have the
usufruct thereof:
  Provided that any such condition shall be inoperative
in regard to property reserved to the child by way of
legitim:
 Provided further that where the property is
bequeathed or given to the child on condition that only
one of the parents shall not have the usufruct thereof,
*Repealed by Act XVI of 1993.
     CIVIL CODE            ġ CAP. 16.             43
such property shall be subject to the usufruct of the
other parent, sohowever that in any such case, the
fruits of such property shall not be comprised in any
community of acquests subsisting between the parent
enjoying the usufruct and the parent excluded
therefrom;
( b ) property given to the child to undertake a career, an art
or a profession;
( c ) property devolved on the child by inheritance, legacy
or donation where such inheritance, legacy or donation
has been accepted in the interest of the child against
the wishes of the parents:
  Provided that where such property has been accepted
on behalf of the child by one parent against the wishes
of the other parent, such property shall be subject to
the usufruct of only that parent who made the
acceptance; sohowever that in any such case, the fruits
of such property shall not be comprised in any
community of acquests subsisting between the parent
accepting such inheritance, legacy or donation as
aforesaid, and the parent who has not so accepted;
( d ) property which the child may have acquired by his
own work or his own separate industry.
Obligations to 
which usufruct of 
parents is subject.
Amended by:
XXI. 1993.57.
143.   The usufruct vested in the parents shall be subject to the
following obligations:
( a ) all obligations to which usufructuaries are subject,
excepting that of giving security;
( b ) the payment of any annuity or of any interest on
capital fallen due before the commencement of the
usufruct;
( c ) the payment of the funeral expenses, and of those of
the last illness of the person from whom the property
has devolved on the child where, otherwise, such
expenses would have been borne by the child;
( d ) the expenses for the maintenance and education of the
child.
Cessation of 
usufruct.
Amended by:
XXI. 1962.3;
XXI. 1993.2,58.
144. (1) The usufruct of the parents shall cease on the death of
the child or on the marriage or remarriage of the parents or the
adoptive parents, as the case may be.
(2) It shall also cease for any other reason for which parental
authority ceases.
(3) Where the usufruct ceases in respect only of one of the
parents, the fruit of the property subject to such usufruct shall not
be comprised in any community of acquests subsisting between the
parent in respect of whom the usufruct has not ceased, and the
parent in respect of whom it has so ceased.
44               CAP.16. ħ                CIVIL CODE
Where parents 
continue to enjoy 
property on 
cessation of 
usufruct.
Substituted by:
XXI. 1993.59.
145.   Where the usufruct ceases, and the parents, or either of
them, continue or continues to enjoy the property of the child living
with the parents or either of them without authority but without
opposition on the part of the child, or with authority but without the
express condition of rendering an account of the fruits, such parents
or parent or the heirs of such parents or parent as the case may be
shall only be bound to deliver the fruits existing at the time of the
demand, and shall not be bound to account for such fruits as may
have been consumed up to that time.
Death, etc. of one 
of the parents.
Substituted by:
XLVI. 1973.25;
XXI. 1993.59.
146. (1) In the event of the death of one of the parents,
parental authority shall vest solely in the surviving parent in
respect of his or her children and their property, including property
devolving on the children from the property of the deceased parent
and from any other cause after the death of the predeceased parent.
(2) The provisions of sub-article (1) of this article shall also
apply where one of the parents has forfeited or been deprived of
parental authority, or cannot, because of absence or other
impediment, exercise the rights of parental authority.
(3) If either of the parents is deprived of the right of usufruct
only, such right shall vest in the other parent alone.
(4) Where one parent is deprived of the usufruct, the fruits of
such usufruct shall not be comprised in any community of acquests
subsisting between that parent and the parent who has not been so
deprived.
Where parent 
remarries and 
continues to 
administer 
property.
Substituted by:
XLVI. 1973.26;
XXI. 1993.59.
147. (1) If a parent, on remarriage, continues to administer the
property of the children, whether or not such parent still exercises
the right of parental authority, the spouse of the parent shall be held
liable  in solidum  with such parent for the administration both
preceding and subsequent to the marriage.
(2) The provisions of this article shall apply to an adoptive
parent on marriage or remarriage.
Applicability of 
provisions where 
mother is vested 
with paternal 
authority.  
Substituted by: 
XLVI.1973.27.
148.   Repealed by: XXI. 1993.59.
Power of court to 
give directions 
notwithstanding 
other provisions. 
Substituted by: 
XLVI.1973.28.
149.   Notwithstanding any other provision of this Code, the
court may, upon good cause being shown, give such directions as
regards the person or the property of a minor as it may deem
appropriate in the best interests of the child.
     CIVIL CODE            ġ CAP. 16.             45
Sub-title II
Amended by: 
XXI.1993.2
H OW  P ARENTAL  A UTHORITY  C EASES
When parental 
authority ceases 
ipso jure. 
Amended by: 
XXI.1962.4; 
XLVI.1973.30; 
XXI.1993.2,60. 
150.   Parental authority ceases  ipso jure  in each of the cases
following:
( a ) on the death of both parents or of the child;
( b ) when the child attains the age of eighteen years;
( c ) on the marriage of the child;
( d ) if the child, with the consent of the parents, has left the
parental home and set up a separate domestic
establishment;
( e ) if the parents fail to make, in favour of the child, the
registrations referred to in articles 2038 and 2039;
sohowever that where only one parent has failed to
make such registration, parental authority shall not
cease in relation to the parent who has not so failed;
( f ) if the surviving parent remarries or, in the case of an
adoptive parent, if after the adoption he marries or
remarries, without having first made an inventory of
the property of the child and obtained from the court
the requisite leave to continue in the exercise of the
rights of parental authority.
When court may 
reinstate parent in 
parental authority.  
Amended by: 
XXI.1993.2,61.
151.   In any of the cases referred to in paragraphs ( e ) and ( f )   of
the last preceding article, it shall be lawful for the court, if it deems
it expedient in the interest of the child, to reinstate the parent in the
parental authority wholly or in part upon his performing that by
reason of the omission of which he had forfeited such authority.
Court may 
dispense with 
inventory. 
Amended by : 
XXI.1993.62.
152.   The court may, on good cause, dispense with the inventory
required under paragraph  (f)  of article 150, and direct, instead, that
a mere description of the property be made, which shall be verified
on oath by the parent.
Power of court 
where parent, 
before or after 
remarriage, 
demands to 
continue in the 
exercise of parental 
authority.  
Amended by: 
XXI.1962.5; 
XXI.1993.2,63.
153.  Moreover, the court may, upon a demand made by the
parent, either before or after his remarriage or, in the case of an
adoptive parent, his marriage or remarriage for authority to
continue in the exercise of the rights of parental authority, grant to
the parent only such rights as refer to the person of the child, and
appoint a curator for the administration of the property or entrust
such administration to the parent and appoint a tutor in regard to
the person of the child.
When parent may 
be deprived of 
parental authority.  
Amended by: 
XXI.1993.2,64.
154. (1)  Saving any other punishment to which he may be
liable according to law, a parent may be deprived, by the said court,
wholly or in part, of the rights of parental authority, in any of the
cases following:
( a ) if the parent, exceeding the bounds of reasonable
chastisement, ill-treats the child, or neglects his
education; 
46               CAP.16. ħ                CIVIL CODE
( b ) if the conduct of the parent is such as to endanger the
education of the child;
Cap. 12.
( c ) if the parent is interdicted, or under a disability as to
certain acts, as provided in articles 520 to 527
inclusive of the Code of Organization and Civil
Procedure, and articles 189 and 190 of this Code;
( d ) if the parent mismanages the property of the child;
( e ) if the parent fails to perform any of the obligations set
out in article 3B in favour of the child.
(2) Nevertheless, the court may, even in the cases mentioned in
sub-article (1) of this article, reinstate the parent in the exercise of
the rights of which he has been deprived, when the cause of such
deprivation ceases to exist.
Usufruct of 
property of child to 
cease on forfeiture 
of parental 
authority. 
Amended by: 
XXI.1993.2.
155.   The usufruct of the property of the child shall cease upon
the forfeiture of any of the rights of parental authority, and shall
only be re-acquired upon the full restoration of parental authority.
Where minor 
carries on trade.  
Amended by: 
XLVI.1973.32; 
XXI.1993.2. 
Cap. 13.
156. (1) Where a minor, who has attained the age of sixteen
years, has been authorized under article 9 of the Commercial Code,
to trade, or, not being a trader, to perform certain acts of trade, such
minor shall, in regard to all matters relating to his trade, or in
regard to such acts, be considered as being of age.
(2) Nothing in this Code shall affect all other provisions of the
Commercial Code, relating to minors and to children subject to
parental authority.
Title V
O F  M INORITY AND OF  T UTORSHIP
Sub-title I
O F  M INORITY
Minority. 157.   A minor is a person of either sex who has not yet attained
the age of eighteen years.
     CIVIL CODE            ġ CAP. 16.             47
Sub-title II
O F  T UTORSHIP
Where minor is 
subject to 
tutorship.  
Substituted by: 
XLVI.1973.33. 
Amended by: 
XXI.1993.2.
158.    Any minor, whose parents have died or have forfeited
parental authority and who has not married, is subject to be placed
under tutorship until he becomes of age or until he marries.
§  I .  O F THE  A PPOINTMENT AND  R EMOVAL OF  T UTORS
Appointment of 
tutor.  
Substituted by: 
XLVI.1973.34.
159. (1) A tutor is appointed by the court on the demand of
any person.
(2) In appointing a tutor the court shall take into account any
disposition contained in the will of either of the parents of the child
relating to the appointment of a tutor.
Persons competent 
to act as tutors.  
Amended by: 
XXI.1962.6; 
XLVI.1973.36.
160.   Where among the relatives of the minor there are
competent persons, the court shall appoint one of such persons,
preference being given, subject always to the best interests of the
child, to the nearest relative by consanguinity.
Where more than 
one tutor are 
appointed.  
Substituted by: 
XLVI.1973.37.
161. (1) It shall be lawful for the court to appoint more than
one tutor.
(2) Where more than one tutor have been appointed the court
may at any time, either of its own motion or upon the demand of
any of the tutors, specify their respective duties; and, until such
time as particular duties shall have been assigned to each of them,
each of the tutors shall have all the powers and duties of a tutor,
and they shall all be jointly and severally liable for the acts of each
of them.
(3) Where any of the tutors dies or otherwise ceases to be tutor,
the tutorship shall be exercised by the other tutor or tutors unless
the court, of its own motion or upon the demand of any person shall
have appointed another tutor in his stead.
Conflict of interest 
between minors 
and tutors.
162.   In case of conflicting interests between minors subject to
the same tutors, or between them and the tutors, the provisions of
article 139 shall apply.
Persons not 
competent to hold 
the office of tutor. 
Amended by: 
XLVI.1973.39; 
XI.1977.2; 
XLIX.1981.4. 
163.  The following persons cannot be appointed tutors:
( a ) persons who have not attained majority;
( b ) persons who are not vested with the free
administration of their property or who are notoriously
incompetent to administer property;
( c ) persons who are or are about to be, or whose spouse or
relatives by consanguinity or affinity up to the degree
of uncle and nephew, are, or are about to be involved
in a lawsuit with the minor, in which the status of such
minor, or a considerable part of his property is at
48               CAP.16. ħ                CIVIL CODE
stake;
( d ) undischarged bankrupts;
( e ) persons who have been sentenced to the punishment of
imprisonment for a term exceeding one year, or to any
punishment for an offence affecting the good order of
families, or for fraud;
( f ) persons who are of a notoriously bad character, or
manifestly untrustworthy or negligent.
Judges and 
magistrates not 
eligible as tutors.  
Amended by: 
L.N.148 of 1975.  
164. (1) The judges and the magistrates are not eligible for the
office of tutor, except in the case of their own relative by
consanguinity in any degree in the direct line, or up to the degree of
cousin in the collateral line.
(2) Tutorship already assumed in regard to persons other than
the aforesaid relatives shall cease on the appointment of the tutor to
the office of judge or magistrate.
Persons who may 
be excused from 
the office of tutor.  
Amended by: 
XXV.1962; 
L.N. 46 of 1965; 
XLVI.1973.40; 
L.N. 148 of 1975.
165.   The following persons are entitled to be exempted from
accepting or continuing in the office of tutor:
( a ) members of the House of Representatives;
( b ) heads of public departments, and any other public
officer having the direction of any particular branch of
the public service;
( c ) persons belonging to the armed forces of Malta, if on
active service;
( d ) persons who have attained the age of sixty years, or
are suffering from a habitual infirmity, which
incapacitates them from discharging the office of tutor
without serious inconvenience;
( e ) any person who is a father or a mother of five living
children;
( f ) persons who are already discharging a tutorial office;
( g ) any person not being a relative of the minor, or being a
distant relative, if there is in Malta a relative, or, as the
case may be, a nearer relative competent to discharge
the office of tutor, and not excused therefrom:
  Provided that where the incapacity or the ground of
exemption of the relative or nearer relative ceases, the
stranger or the distant relative, as the case may be,
may claim to be relieved of the office.
Power of court to 
dispense tutors.
166.   It shall also be lawful for the court for any of the causes
mentioned in the last preceding article or for any other just cause,
to exempt, permanently or temporarily, any tutor from continuing
in his office.
Tutorial inventory.    
Amended by: 
XLVI.1973.41.
167. (1) The court shall, before appointing a person to the
office of tutor, direct such person to make an inventory of the
property of the minor or, according to circumstances, a description
of such property, verified on oath by such person, and to bind
     CIVIL CODE            ġ CAP. 16.             49
himself with hypothecation of his own property limited to a fixed
sum, well and truly to administer the property of the minor, and to
render on the termination of the office a true and faithful account of
his administration.
(2) The court may order that the tutorial inventory or
description aforesaid be made by a person other than that who is to
be appointed to the office of tutor.
Power of court in 
regard to tutor. 
Amended by: 
XLVI.1973.43; 
XI.1977.2.
168. (1) It shall be lawful for the court, when it deems it
expedient, in the decree of appointment, to impose on the tutor the
obligation of presenting in the registry of the court, yearly or at
such other intervals as the court shall direct, an account of his
administration.
(2) The court may also direct the person who offers to assume
the office of a tutor, to give security, and, in any such case, the
obligation of the surety as well as that of the tutor must precede the
appointment of the tutor.
Suspension or 
removal of tutor.
Cap. 12.
169. (1) The court may suspend or remove any tutor or curator
from his office on any of the grounds mentioned in paragraphs ( b ),
( c ),   ( d ),   ( e ) and ( f ) of article 163, or for failure to render an account
in due time, or for unfaithfulness in the account rendered, or for
any other just cause, saving the provisions of article 35 of the Code
of Organization and Civil Procedure.
(2) In all cases the court shall chiefly consider the interest of
the minor.
Curator 
ad   ventrem.
170. (1) If, at the time of the death of a husband without issue,
the wife declares that she is pregnant, the court may, upon the
demand of any person interested, appoint a curator  ad ventrem  with
a view to preventing any supposition of birth, or substitution of
child, and administering the property up to the day of the birth,
under such directions as the court may deem it proper to give.
(2) It shall be lawful for the court to appoint a female as
curatrix, and entrust another person with the administration of the
property.
Remuneration to 
tutor.
171.   The court may at any time grant to the tutor, or to the
curator mentioned in the last preceding article, a moderate
remuneration.
§   II .   O F THE  T UTOR’S  A DMINISTRATION
Duties of tutor.
shall represent him in all civil matters, and administer his property
as  a bonus paterfamilia s.
50               CAP.16. ħ                CIVIL CODE
Power of court 
with respect to 
education of 
minor.  
Amended by: 
XLVI.1973.44.
173.   The court shall, as appropriate, prescribe the place in
which the minor is to be brought up, the education which it is
proper to give him, and the expense to be incurred for his
maintenance and education.
Powers of tutor in 
case of bad 
conduct of minor.
174. (1) Where the tutor has serious reasons for being
dissatisfied with the conduct of the minor, the provision of article
134 shall apply.
(2) The necessary expenses shall be at the charge of the minor.
Duties of minor 
towards tutor.
175 . (1) The minor shall obey the tutor in all that is permitted
by the law.
(2) Where the tutor abuses his authority, or neglects his duties,
the minor himself or any other person on his behalf, may make a
complaint to the court of voluntary jurisdiction; and the court shall
caution the tutor or give any other expedient direction.
Acts not admitting 
of delay.  
176.   The court may, even though the requirements laid down in
article 167 have not yet been complied with, authorize the person
entrusted with the making up of the inventory, or any other person,
to perform such acts as do not admit of delay.
Disposal of 
movable property.  
Amended by: 
XLVI.1973.45.
177 . (1) The tutor shall, within the time of three months from
his appointment, sell all such movable property of the minor as the
court shall not have authorized him to keep.
(2) Unless otherwise authorized by the court the sale shall be
made by public auction.
(3) It shall be in the discretion of the court, according to
circumstances, to enlarge the time referred to in sub-article (1) of
this article.
Precious articles, 
etc.
178. (1) The court may order any precious articles which the
tutor shall have been authorized to keep, to be deposited in the
place appointed for the judicial deposit of similar articles or in
some other place of safe custody.
(2) The same shall apply in regard to any moneys or securities
to bearer comprised in the estate of the minor.
(3) The court may, at any time, give other directions in regard
to such articles, moneys, or securities.
Commercial 
establishments.  
Amended by: 
XLVI.1973.46.
179. (1) Any commercial or industrial establishment
comprised in the estate of the minor shall be sold and liquidated by
the tutor in the manner prescribed by the court.
(2) Nevertheless, the court may sanction the continuation of the
business if such continuation is likely to be of greater advantage to
the minor.
Limitation of 
powers of tutor.  
Amended by: 
I.1908.1; 
XLVI.1973.47.
180. (1) It shall not be lawful for the tutor, without the
authority of the court, to collect or transfer any capital belonging to
the minor, take money on loan except in case of urgency, accept or
renounce any inheritance, accept any donation or legacy subject to
any burden, refer any matter to arbitration or effect any
     CIVIL CODE            ġ CAP. 16.             51
compromise, or alienate, hypothecate, or make any emphyteutical
grant of immovable property, or let out property for a time
exceeding eight years, in the case of rural property, or four years, in
the case of urban property, or the ordinary time according to usage,
in the case of movables.
(2) Upon a demand for authority to accept an inheritance, the
court may, according to circumstances, allow the tutor to produce
in lieu of the inventory prescribed in article 848, a note describing
the property comprised in the inheritance which shall be verified on
oath by the tutor.
(3) Where a lease has been granted for a longer time than that
stated in sub-article (1) of this article, it shall be reduced to the
time therein respectively stated, to be reckoned from the date of the
contract.
(4) The court may, in the decree appointing a tutor or by a
subsequent decree, grant such tutor a general authority in respect of
all, or any of the said acts.
Profitable 
investment of 
moneys. 
Amended by: 
XLVI.1973.48; 
XIII.1983.5.
181. (1) The tutor shall, after deducting the expenses
necessary for the minor, profitably invest the income or other
moneys which he collects, when the amount thereof exceeds the
sum of fifty liri.
(2) If the tutor fails to make such investment, he shall be liable
in interest, unless he proves that notwithstanding all due diligence
he has not succeeded in securing a profitable and safe investment.
(3) The tutor shall be liable for any loss occasioned by his
failure to take, in making the investment, such precautions as a
bonus   paterfamilias  would have taken.
Administration.
expenditure.
(2) He shall, with his accounts, produce vouchers for any
expense of a considerable amount.
(3) The said book, if verified on oath by the tutor, shall be
sufficient to prove small expenses.
(4) The tutor shall only be credited with such expenses as are
considered useful or, having regard to the position and the means of
the minor, customary.
Rendering of 
accounts
183. (1) Where the administration terminates for any other
cause than that referred to in article 158, the tutor shall render his
account to his successor in the office of tutor.
(2) If the minor dies during the tutorship, the account shall be
rendered to his heirs.
to person who was 
under tutorship.
184.   If the tutorship terminates for any of the causes mentioned
in article 158 the account shall be rendered to the person who was
under such tutorship.
Interest.
interest  ipso jure  as   from the day of the termination of the
52               CAP.16. ħ                CIVIL CODE
tutorship.
(2) The interest of any sum which may be due by the minor to
the tutor shall only commence to run from the day on which a
demand for payment shall have been made by the tutor, after the
termination of his office, by means of a judicial act.
Limitation of 
actions.
186.   Subject to the provision of article 2157, all actions
competent to the minor against the tutor, or competent to the tutor
against the minor, relating to the tutorship, shall be barred by the
lapse of five years to be reckoned from the day on which the minor
attains his majority, or dies.
Nullity of acts 
performed by tutor. 
187. (1) The nullity of any act performed in contravention of
the provisions contained in this Title, touching the interests of the
minor, may only be set up by the minor or his heirs or other persons
claiming under him.
(2) No act of the tutor may be impeached solely on the ground
that the appointment of the tutor was made against the provisions of
article 163.
Title  VI
O F  M AJORITY ,   I NTERDICTION AND  I NCAPACITATION
Sub-title I
O F  M AJORITY
Age of majority. 188. (1) Majority is fixed at the completion of the eighteenth
year of age.
(2) A major is capable of performing all the acts of civil life,
subject to the restrictions contained in other special provisions of
law.
Sub-title II
O F  I NTERDICTION AND  I NCAPACITATION
Persons subject to 
interdiction.  
Cap. 12.
189. (1) A major who is in a state of imbecility or other mental
infirmity or is prodigal, may be interdicted or incapacitated from
doing certain acts, as provided in articles 520 to 527 inclusive, of
the Code of Organization and Civil Procedure.
(2) The same shall apply in regard to the minor referred to in
article 156.
(3) The demand for interdiction or incapacitation may be made
not only by the persons mentioned in article 521 of the Code of
     CIVIL CODE            ġ CAP. 16.             53
Organization and Civil Procedure, but also by any person related by
affinity who, under the provisions of this Code, might be compelled
to supply maintenance to the person who is imbecile, mentally
infirm, or prodigal.
Deaf-mutes or 
blind.  
Cap. 12.
190.   It shall be competent to the court to apply the said
provisions of the Code of Organization and Civil Procedure, also in
the case of any person congenitally deaf-mute or blind, and in any
such case no further proof shall be required that such person is
incapable of managing his own affairs.
Interdiction of 
minor.
191. (1) A minor under tutorship may be interdicted or
incapacitated in the last year of his minority; and in any such case
the court may appoint as curator either the tutor or any other
person.
(2) The said curator shall only commence to administer the
property as from the day of the termination of the tutorship.
Nullity of acts 
performed by 
person interdicted. 
192.   The nullity of the acts performed by the person interdicted
or incapacitated after the interdiction or incapacitation may only be
set up by the curator, or by the person interdicted or incapacitated
or his heirs or other persons claiming under him.
Title  VII
O F  A BSENTEES
Definition of 
“absentee”.
193 .  A person who has ceased to appear in Malta and has not
been heard of shall, for the purposes of the provisions contained in
this Title, be deemed to be an absentee.
Sub-title I
O F THE  C URATORSHIP OF  A BSENTEES
Application for 
appointment of 
curator.
194.   The presumptive heirs of an absentee, or any other person
interested, may apply to the court of voluntary jurisdiction in the
island in which the absentee last resided, for the appointment of a
curator to manage the property of such absentee, and for any other
requisite directions for the preservation of his property.
Edict.
Amended by: 
XXXI.1965.8.
195.   Upon any such application, the court shall direct that an
edict, drawn up according to Form A in Part II of the Schedule to
this Code, be twice, with an interval of at least one month,
published in the Government Gazette, and posted up at the entrance
of the building in which the court sits, and in any other place which
the court may deem proper, calling upon any person having
information respecting the absentee to communicate such
information to the court, through the registrar.
54               CAP.16. ħ                CIVIL CODE
Information 
respecting 
absentee.
196. (1) Any information respecting the absentee may be
given either in writing, in any form, or orally.
(2) Where the information is given orally, the registrar shall
make a note thereof at the foot or in the margin of the application,
or, if this is not practicable, on a separate sheet of paper to be kept
with the application.
(3) Any communication which is anonymous, or made by a
person unknown and without an indication of the place in which
such person may be found, will not be considered.
Inventory. 197. If, on the expiration of the time fixed in the second
publication of the edict, no information shall have reached the court
respecting the existence of the absentee, or the place where he may
be found, the court shall appoint a person to make up, within such
time as the court shall fix, an inventory of the property of the
absentee, or, according to circumstances, a description of such
property to be verified on oath by such person:
Provided that if the court shall have had information warranting
further enquiries, it shall be lawful for the court, before making any
such appointment, to direct such further enquiries to be made.
Acts which do not 
admit of delay.
198.   The court may, at any time, after the application referred
to in article 194, authorize any competent person to perform, on
behalf of the absentee, such acts as do not admit of delay.
Obligation of 
curator.
199. (1) Upon the completion of the inventory or description,
the court shall, before allowing the application, direct the curator
designate to bind himself with hypothecation of his own property
limited to a fixed sum, well and truly to administer the property of
the absentee, and to render, on the termination of the curatorship, a
true and faithful account of his administration.
(2) Where the court deems it expedient that the curator
designate should give security, the obligation of the surety shall
also precede the appointment of the curator.
Persons not 
competent to act as 
curators.  
Amended by: 
XLVI.1973.49.
200. (1) The persons who according to the provisions of
article 163 are not competent for the office of tutor, shall not be
competent for the office of curator.
(2) No person is bound to accept the curatorship of an absentee.
Court may appoint 
more than one 
curator. 
Amended by: 
XLVI.1973.50.
201. (1) It shall be in the discretion of the court to appoint two
or more curators.
(2) In any such case the provisions of sub-articles (2) and (3) of
article 161 shall apply.
Rendering of 
accounts.
202. (1) The curator shall render an account of his
administration to the absentee, if he returns, or if he appoints an
attorney, or to such persons as are vested with the possession of his
property.
(2) The provisions, however, of sub-article (1) of article 168
shall also apply to the said curator.
     CIVIL CODE            ġ CAP. 16.             55
Curator to 
represent absentee.
203. (1) The curator shall represent the absentee in civil acts
and shall manage his property   as a  bonus paterfamilias .
(2) He is bound to prosecute the enquiries about the existence
of the absentee or the place in which he may be found, and to
communicate to the court any information which he may receive.
(3) Unless otherwise provided in the decree appointing the
curator or in any other decree, the provisions of articles 169 and
177 to 182 inclusive shall also apply to such curator.
Where the absentee 
has left an 
attorney.
204. (1) Where the absentee has left an attorney for the
management of his property, the court shall, during the time the
power of attorney is in force, give directions only with regard to
such acts as the attorney may not perform under the power of
attorney or in virtue of the law.
(2) When the power of attorney expires, the foregoing
provisions of this sub-title shall apply.
Sub-title II
O F THE  P ROVISIONAL  P OSSESSION OF THE  P ROPERTY OF AN 
A BSENTEE
Opening of wills.  
Amended by: 
LIV.1974.2.  
Cap. 55.
205.   After the lapse of three continuous years from the day the
absentee was last heard of, or of six years, if the absentee has left
an attorney to manage his property, the court of voluntary
jurisdiction in the island where the absentee last resided, may, upon
the application of any person interested, order the opening of any
secret will, or declare, notwithstanding the provisions of article 66
of the Notarial Profession and Notarial Archives Act, accessible
any public will, which the absentee may have made.
Edict.
attorney or curator, if any, and, if it is of opinion that the order
sought for should be given, shall direct that an edict similar to that
referred to in article 195 be published in the Government Gazette,
and posted up at the entrance of the building where the court sits,
and in any other place which it may deem proper.
(2) The provisions of article 196 relating to any information
which may be given in regard to the absentee, shall apply also in
the case referred to in this article.
Where six months 
have elapsed 
without any 
information 
respecting 
absentee.  
207.   After the lapse of six months from the publication of the
edict, the court, in default of any information respecting the
absentee, shall, by a decree, order the opening of any secret will,
or, as the case may be, declare accessible any public will which the
absentee may have made.
56               CAP.16. ħ                CIVIL CODE
Demand for 
provisional 
possession by 
heirs-at-law in 
default of 
institution of heir, 
Amended by: 
LIV.1974.4.
208.   The testamentary heirs of the absentee or their heirs, or
where the will does not contain any institution of heir, such persons
as would have been the heirs-at-law of the absentee, if he had died
on the day he was last heard of, or their heirs, may make a demand
to the court of voluntary jurisdiction in the island in which the
absentee last resided, that they be vested with the provisional
possession of the property.
or in default of 
secret or public 
will.
209. (1) Where there is no secret or public will, the demand
referred to in the last preceding article, may be made immediately
upon the expiration of the times respectively established in article
205.
(2) Upon such demand the court shall hear the attorney or
curator, if any, and, if expedient, shall issue an edict similar to that
referred to in article 206, causing it to be posted up as provided in
that article; and it shall give the requisite decree on that demand
after the lapse of six months from the publication of the edict.
Publication of 
edict.
210.   The edict prescribed in articles 206 and 209 shall be
published and posted up twice, with an interval of at least one
month, unless, before any of the demands mentioned in those
articles, a curator shall have been appointed; and in any such case
the time of six months which is to elapse before the court’s decree
shall run from the second publication of the edict.
Rights of legatees, 
etc.
211.   When the demand by the heirs to be vested with the
provisional possession of the property, has become competent,
even though no such demand shall have been made by them, the
legatees, donees, and all other persons having rights on the
property of the absentee depending on his death, may, by writ of
summons against the testamentary heirs or the heirs-at-law, as the
case may be, and the attorney or curator, if any, demand to be
allowed to exercise such rights provisionally.
Security. 212.   The heirs, and the persons mentioned in the last preceding
article, shall be placed in the provisional possession of the
property, or allowed to exercise their eventual rights, only on
condition of giving security in an amount to be fixed by the court,
in terms of article 352.
Other caution in 
default of security.
213.   Where any of the presumptive heirs or other persons
having rights on the property of the absentee is unable to give the
said security, it shall be in the discretion of the court to order such
other caution as it may deem proper in the interest of the absentee,
having regard to the condition of the applicants, to their
relationship with the absentee, and to other circumstances.
Spouse may 
demand 
maintenance.
214.   The spouse of the absentee, in addition to what is due to
him or her in virtue of the marriage contract, or by succession or by
any other title according to law, may, in case of need, demand an
allowance for maintenance, to be fixed according to the condition
of the family and the amount of the estate of the absentee.
Effects of 
provisional 
possession.
215.   The persons vested with the provisional possession of the
property of the absentee, and their successors, shall have the
administration of such property, the right to sue or defend in
matters touching the rights of the absentee, and the enjoyment of
     CIVIL CODE            ġ CAP. 16.             57
the fruits of the property, subject to the restrictions hereinafter
prescribed.
Inventory of 
property.
216. (1) The persons vested with the provisional possession of
the property of the absentee shall take the necessary steps, before
the court of voluntary jurisdiction, to make up, within three months
from the day on which they have been vested with such possession,
an inventory of the movable property and a description of the
immovable property of the absentee, unless dispensed therefrom by
the court on the ground that such inventory or description had
already been made under the provisions of article 197, or for any
other good cause.
(2) The court may, if necessary, direct the said inventory or
description to be made before granting the demand for provisional
possession.
Powers of persons 
vested with 
provisional 
possession.
217. (1) The persons vested with the provisional possession of
the property of the absentee may not, without the authority of the
court, alienate or hypothecate the immovable property or perform
any act other than of ordinary administration.
(2) The court shall, where necessary, order the sale of all or
part of the movable property; and in any such case the proceeds
shall be invested at interest, or in any other manner which the court
shall deem proper.
Enjoyment of 
fruits. 
Amended by: 
LIV.1974.5.
218. (1) Where the persons vested with the provisional
possession of the property, or allowed to exercise their rights
provisionally under article 211, are ascendants, descendants, or the
spouse of the absentee, they shall retain all the fruits for their own
benefit.
(2) Where the said persons are relations of the absentee in any
other degree, or strangers, they shall be bound to reserve one-third
part of the fruits:
Provided that after the lapse of ten continuous years from the day
the absentee was last heard of or of six years from the entry of
provisional possession, the whole of the fruits shall belong to the
said persons.
Prior or equal right 
to provisional 
possession.
219. (1) If, during the period of provisional possession, any
person shall prove that, at the time of the grant of such possession,
he had a prior or equal right to that of the possessor, it shall be
lawful for such person to exclude the possessor from such
possession, or to cause himself to be associated therein.
(2) The said person, however, shall only be entitled to such
fruits as will accrue from the day of the judicial demand.
Return of absentee.  
Amended by: 
XI.1977.2.
220. (1) If the absentee reappears, or if his existence is
established, the effects of the provisional possession, or of the
authority to exercise the right mentioned in article 211, shall cease,
and the court shall give the necessary directions for the
preservation and administration of his property.
(2) The possessors of the property, and such persons as may
58               CAP.16. ħ                CIVIL CODE
have obtained any payment by reason of the exercise of any right
depending upon the death of the absentee, shall be bound to restore
the same together with the fruits, as provided in sub-article (2) of
article 218.
Death of absentee. 
Amended by: 
XI.1977.2.
221.   If, during the period of provisional possession, the time of
the death of the absentee is established, his succession shall
become open in favour of such persons as at that time were his
testamentary heirs or heirs-at-law, or of their successors; and the
persons who have had the enjoyment of the property, shall be
bound to restore it, together with the fruits, as provided in sub-
article (2) of article 218.
Action by persons 
having rights 
against absentee.
222.   After the grant of provisional possession, any person
having any claim against the absentee shall bring forward such
claim against the persons vested with the possession of the
property.
Sub-title III
O F   THE  A BSOLUTE  P OSSESSION OF THE  P ROPERTY OF AN 
A BSENTEE
Absolute 
possession.  
Substituted by: 
LIV.1974.6.
223. If the absence has continued for a period of six years since
provisional possession has been granted, or if in a writ of summons
made by the testamentary heirs or the heirs-at-law of the absentee
before the competent court of the island in which the absentee last
resided against curators appointed by the said court such absence
has been declared by judgment to have subsisted for a period of ten
continuous years from the day the absentee was last heard of, the
court of voluntary jurisdiction shall, upon the demand of the parties
interested, make an order, granting absolute possession of the
property and the absolute exercise of the rights depending upon the
death of the absentee, discharging the securities and directing any
other caution which may have been imposed if any, to cease:
Provided that if the absent person is a minor, the period of
absence established under this article shall run from the day such
person would have attained majority.
Cases where 
absolute 
possession takes 
place. 
Amended by: 
LIV.1974.7
224.   The provisions of the last preceding article, or, as the
case may be, the declaration of the opening of the succession may
also take place, even though no curator shall have been appointed,
nor provisional possession granted as provided in the preceding
two sub-titles, in each of the following cases:
( a ) if one hundred years since the birth of the absentee,
and at least one year since the last news of him, shall
have elapsed;
( b ) if eighty years since the birth of the absentee, and at
least six years since the last news of him, shall have
elapsed.
     CIVIL CODE            ġ CAP. 16.             59
Rights of persons 
placed in absolute 
possession of 
property. 
225.   It shall be lawful for the persons placed in absolute
possession of the property or allowed the absolute exercise of the
rights depending upon the death of the absentee, to proceed to final
partitions of the property, and to dispose freely thereof.
Return of absentee.
shall recover his property in the state in which it may be, and shall
be entitled to the price of such property as has been disposed of, if
such price is still due, or to the property in which such price may
have been invested.
Rights of children 
of absentee.
227.   The legitimate or illegitimate children or descendants of
the absentee may, likewise, within the time prescribed in article
845, to be reckoned from the grant of absolute possession or from
the day on which the declaration of the opening of the succession
may have been obtained, enforce their rights on the property of the
absentee according to the rules laid down in the last preceding
article, without being bound to prove his death.
Other rights.
death of the absentee is established, such persons as, at that time,
were his heirs or legatees, or were vested with any right in
consequence of the death, or their successors, may bring the actions
competent to them, saving the rights which the possessors may
have acquired by prescription, and the effects of good faith in
regard to the fruits already collected.
Sub-title IV
O F THE  E FFECTS OF  A BSENCE IN REGARD TO EVENTUAL 
R IGHTS OF THE  A BSENTEE
Claiming of rights 
on behalf of person 
not known to be 
living.
229.  No person may claim any right on behalf of any other
person who is not known to be living, unless he proves that such
other person was alive at the time when such right originated.
Where a 
succession 
becomes open.
230. (1) Upon the opening of a succession to which a person
who is not known to be living is entitled, wholly or in part, such
succession shall devolve upon those with whom such person would
have a right to compete, or upon those who would have taken it in
his default, saving the right of representation.
(2) Those upon whom, in default of such person, the
succession devolves, shall proceed to make up an inventory, or, if
the court deems it more expedient, a description of the property.
Action to obtain 
inheritance.
231.  The provisions of the last two preceding articles shall
apply, without prejudice to the right to maintain an action to obtain
an inheritance, or to the other rights competent to the absentee, or
his representatives, or other persons claiming under him. Such
rights shall only be extinguished by the lapse of the time required
for prescription.
Fruits collected in 
good faith.
232.   So long as the absentee does not appear, or no actions
competent to him are brought in his behalf, those upon whom the
60               CAP.16. ħ                CIVIL CODE
succession has devolved shall not be bound to return such fruits as
may have been collected by them in good faith.
Sub-title V
O F THE  C URATORSHIP OF  M INOR  C HILDREN OF  A BSENTEE
Curatorship of 
minor children of 
absentee.  
Substituted by: 
XLVI.1973.51. 
Amended by: 
XXI.1993.2.
233. (1) Where any of the children of the absentee are minors,
and are not subject to parental authority, it shall be lawful for the
court, upon the demand of any person, to appoint to such children
one or more curators.
(2) The provisions relating to the tutorship of a minor whose
parents are dead shall, in so far as applicable, apply to the
curatorship of a minor ordered under this article.
Title VIII
O F  A CTS OF  C IVIL  S TATUS
Sub-title I
G ENERAL  P ROVISIONS
Acts to be drawn 
up on the birth, 
marriage or death 
of any person.  
234. (1) Upon the birth, marriage or death of any person, an
act in the respective form annexed hereto, containing such
particulars as are required under this Title, shall be drawn up in
clear and legible characters, and without any abbreviation.
(2) Where any of the said particulars cannot be known, a
statement to that effect shall be entered in the proper place in the
act.
Exceptions.  
Substituted by: 
VI.1968.2.
235.  The provisions of the last preceding article shall not apply
in the case of the death of any person belonging to, and actually
serving in, any of the armed forces of a foreign country, unless
such person was a citizen of Malta or was married to any person
who is a citizen of Malta.
By whom acts are 
drawn up.  
Amended by: 
L.N. 46 of 1965; 
LVIII.1974.68.
236.   Acts of birth or death shall be drawn up by the officers
appointed by the President of Malta in that behalf.
Acts of marriage.  
Substituted by: 
XXXVII.1975.23.
237.  Acts of marriage shall be drawn up and signed as provided
in article 293.
     CIVIL CODE            ġ CAP. 16.             61
Registers.  
Amended by: 
VII.1982.2; 
XXXI.1986.4; 
III.1994.3.
238. (1) In the Public Registry Office in Malta and in Gozo,
there shall be kept three register books: one for the registration of
acts of birth, another for the registration of acts of marriage, and
the third for the registration of acts of death.
(2) Each volume of such registers shall be numbered from the
first to the last page. The last page of each volume shall contain a
statement as to the total number of its pages; such statement shall
be signed by the Director of the Public Registry.
Registrations in the 
office of Malta or 
Gozo.
Amended by: 
XXXVII.1975.23; 
XXII.1976.4; 
XII.1986.3; 
III.1994.4.
239. (1) In the Public Registry Office in Malta, there shall be
registered all acts of birth, marriage and death which shall have
taken place in the island of Malta, as well as the acts mentioned in
articles 244 and 285; and in the Public Registry Office in Gozo,
there shall be registered all acts of birth, marriage and death which
shall have taken place in the islands of Gozo and Comino.
(2) A copy of an act, registered as provided in sub-article (1)
and transmitted to the Director by photo-electric facsimile
machine, or any true copy thereof, shall be deemed a true and
authentic copy for all purposes of law provided it is signed by the
Director receiving such facsimile.
Progressive 
number, 
Amended by: 
XVIII.1938.2.
240. (1) On every act delivered to him for registration, the
Director of the Public Registry shall write a progressive number
and the date of delivery, and shall sign his name thereto.
(2) An act shall be deemed to have been received by the
Director, when he shall have signed his name thereto.
in respect of each 
description of acts.
241.   Each description of acts shall have a distinct numbering,
beginning from the first and ending with the last act received
during each year.
Drawing up of acts 
in clear characters.
242. (1) The Director shall not receive any act which is not
written in clear and legible characters, or which contains
abbreviations, or which may appear to him to be otherwise
defective or irregular.
(2) In any such case, the act shall be presented by the Director
to one of the Visitors of notarial acts, who, after hearing, if
necessary, the person by whom the act shall have been made, shall
determine the manner in which, according to law, the act is to be
drawn up.
(3) The Director may not refuse to receive any act which is
countersigned by one of the said Visitors.
Applicability of 
s.242 to certificates 
of baptism or 
marriage.  
Amended by: 
XXII.1939.2; 
XXXVII.1975.23;
XXII.1976.4 .
243. (1) The provisions of the last preceding article shall
apply to any certificate of baptism, delivered to the Director under
the provisions of articles 273 and 285.
(2) No certificate of baptism shall be received unless it is
written in the Maltese, English or Latin language.
62               CAP.16. ħ                CIVIL CODE
Births, marriages 
and deaths in 
foreign countries.  
Amended by: 
XXXI.1965.10. 
Substituted by: 
VI.1968.3.
244. (1) Any act of birth, marriage or death of a citizen of
Malta drawn up or registered in a foreign country by a competent
authority in that country, other than an act drawn up or registered
under sub-article (l) or sub-article (2) of article 270, may, at the
request of any person interested and upon the Director of the Public
Registry being satisfied on the authenticity of such act, be
registered in these Islands in the same manner as if it were an act
drawn up by any of the persons mentioned in this Title.
(2) The person making the request shall, for the purposes of
registration, deliver to the Director the act in respect of which such
request is made.
How registrations 
are made.  
Amended by: 
XXI.1933.1; 
XX.1934.2
245. (1) The acts shall be recorded in the respective register
books, consecutively in the order in which they are received, and
without any blanks.
(2) The registrations shall, as far as practicable, be made in
accordance with the forms annexed to this Code relating to the
drawing up of the acts, even where the documents which in the
cases provided for in this Title may be delivered in lieu of such acts
are drawn up in a different manner.
(3) The registration shall also include the date of the receipt of
the act and the transcription of the signature of the Director.
Declaration on last 
page of register 
book.  
Amended by: 
XX.1934.3; 
XXXI.1965.11.
246. (1) The Director shall, on the last page of each register
book, make a declaration to the effect that the registrations therein
contained are true copies of the original acts to which they refer.
(2) Such declaration shall be made on each register book within
one month from the receipt of the last act entered in such register
book.
(3) The Director shall write down the date and sign his name
immediately after such declaration and after any note which he
shall enter in the register book under the provisions of this Title.
When registration 
is to be entered.  
Amended by: 
XX.1934.4; 
VI.1968.4.
247.   The Director shall register every act within thirty working
days from its receipt.
Correction of 
errors.  
Amended by: 
XX.1934.5
248.   Where before signing the declaration referred to in article
246, or any note, it shall be necessary to correct any error, the
Director shall make the correction in the manner and form
following - in the case of a registration, by means of a postil at the
foot thereof to be signed by him, and, in the case of a note, by
means of a postil at the foot thereof before it is signed; and
necessary cancellation shall be made so that the words cancelled
remain clearly legible; it shall not be lawful to make any erasure.
Preservation of 
acts.
249.   Every act or document received shall, even after it is
registered, be preserved.
Index. 250. (1) In the Public Registry Office in Malta and in Gozo
there shall be made, within the first three months of each year, an
alphabetical index of the registrations entered during the preceding
year.
     CIVIL CODE            ġ CAP. 16.             63
(2) The Director of the Public Registry Office in Gozo shall,
within one month from the last day of the time mentioned in sub-
article (1) of this article, transmit to the Director of the Public
Registry Office in Malta a copy of the index of each year.
Acts and registers 
to be open to 
inspection.  
Amended by: 
XX.1934.6; 
XXII.1939.2; 
XXXI.1965.12; 
XXXVIII.1972.4; 
XXI.1993.65; 
III.1994.5.
251. (1) The register books, acts and documents referred to in
the foregoing articles, shall be open to inspection by every person,
and extracts therefrom, signed by the Director of the Public
Registry of Malta or the Director of the Public Registry of Gozo,
shall be given upon the demand of any person.
(2) In this Title the word "extract" means a certificate
containing an abridged copy of one or more registered acts in
accordance with Forms I, J, K, L, O and P set out in Part II of the
Schedule to this Code. All corrections and annotations entered in
the margin of the registers shall be incorporated in the extract with
the exception of annotations of adoptions which shall be
transcribed at the back of the extract.
(2A) ( a )  Extracts of acts of birth and of entries in the Adopted
Persons Register shall be issued in the Forms I or J
shown in Part II of the Schedule to this Code.
        ( b )   For the purpose of the extracts issued in terms of
paragraph ( a ) hereof entries in the Adopted Persons
Register shall be given consecutive numbers which
follow the last number of the acts of birth registered in
the year of birth of the adopted person, or one of such
numbers reserved for the purpose by the Director and
relative to the year of birth of the adopted person,
which numbers shall not be allotted to acts of birth.
The said year shall also be indicated.
( c )  The fact that certain numbers have, according to
paragraph ( b ) of this sub-article, been reserved for
registration of adopted persons, shall be kept secret and
confidential. A list of such numbers shall only be given
to the department of Government dealing with
nationality, the Passport Office, the Electoral
Commission and the Marriage Registrar who shall be
bound by the same secrecy and confidentiality.
(3) The Directors mentioned in sub-article (1) shall also, if
required, give a certificate containing a true copy in full of one or
more registered acts, as well as a certificate attesting the non-
existence of any registration if upon a search for any such
registration or act, such registration or act is not found.
Probatory force of 
registers. 
252 . (1) The registers and any extracts thereof as well as the
certificates signed by the Director shall, until the contrary is
proved, be evidence of their contents.
(2) No further proof of their authenticity shall be required
beyond that which they bear on the face of them.
64               CAP.16. ħ                CIVIL CODE
Correction or 
cancellation of 
registrations. 
Amended by: 
L.N. 148 of 1975; 
XXX.1979.3; 
VII.1982.3; 
VIII.1990.3; 
III.1994.6.
253. (1) It shall be lawful for any person to bring an action for
the correction or cancellation of any registration, or for the
registration of any act which the Director, with the approval of one
of the Visitors of notarial acts, shall have refused to receive.
(2) It shall be lawful for any person to bring an action for the
registration of the name or names, which name or names the person
shall have used or shall have been used for him by his family, and
which shall be declared by the court as being the name or names by
which the person has been consistently called, in substitution of the
name or names appearing on the relative act of birth as the name or
names given to the child and the name or names by which the child
is to be called.
(3) The action mentioned in sub-article (2) of this article shall
include a request that the change effected in the act of birth through
the registration mentioned in this sub-article be reflected in every
act of civil status relative to the same person and, where any, to the
children and further descendants of such person; which acts shall
be indicated in the request by the relative number and year thereof.
(4) Any action shall be brought by way of writ of summons
before the Civil Court, First Hall, or the Court of Magistrates
(Gozo), as the case may be, against the Director.
Cap. 12.
(5) In any such action, the declaration referred to in sub-
articles (4) and (5) of article 158 of the Code of Organization and
Civil Procedure may also be confirmed on oath by any officer
referred to in sub-article (1) or in sub-article (4) of article 306.
Notice to interested 
parties.
Amended by: 
XXXI.1965.8.
254. (1) Fifteen days at least before the hearing of the action
referred to in the last preceding article, a notice as in Form B   in
Part II of the Schedule to this Code shall, by order of the court, be
published in the Government Gazette, calling upon any party
interested to declare, within fifteen days from the publication of
such notice, by means of a note, whether he desires to contest the
action.
(2) Notice of the day appointed for the trial of the action shall
be given to any person who shall have filed such note within the
said time.
Provisions of 
ss.253 and 254 to 
apply, without 
prejudice to ss. 960 
to 962 of Code of 
Organization and 
Civil Procedure. 
Cap. 12.
255.   The provisions of the last two preceding articles shall not
affect the provisions contained in articles 960, 961 and 962 of the
Code of Organization and Civil Procedure.
Corrections, etc., 
ordered by court.  
Amended by:
XXXI. 1965.13;
XXXI. 2002.211.
256. (1) Any correction, cancellation or registration ordered by
the court shall be made by the Director within the time of ten days
from the day on which the judgement shall have become  res   judicata
and shall be made on the strength of a true copy of the judgement to be
supplied to him by the Registrar .
(2) A   reference of such judgment shall be made by means of a
note in the margin of the register.
     CIVIL CODE            ġ CAP. 16.             65
Corrections 
ordered by 
Visitors.
Added by: 
II.1944.2. 
Amended by: 
XXXI.1965.14; 
L.N. 148 of 1975; 
XI.1977.2;
XXIV.1995.362.
257. (1) Notwithstanding the provisions of the last four
preceding articles, the correction of a registration consisting in the
rectification of the erroneous indication of any one or more of the
particulars specified, in respect of each act in Part III of the
Schedule to this Code, may also be effected upon an order made in
writing by one of the Visitors of notarial acts.
(2) The demand for any such correction shall be made by an
application filed in the Court of Revision of Notarial Acts,
accompanied by a full copy of the registration in respect of which
the correction is required.
(3) A copy of any such application shall be served on the
Director of the Public Registry within two days of its being filed.
(4) The applicant shall be required to produce such evidence as
the Visitor may deem necessary, and the Visitor shall, before
making any order, give to the Director of the Public Registry an
opportunity of being heard.
(5) As soon as may be after the date of any order made by the
Visitors as aforesaid and, in any case, not later than ten days from
such date, the registrar of the said court shall, at the expense of the
applicant, serve a copy thereof on the Director of the Public
Registry and shall cause a notice of the effect thereof to be
published in the Government Gazette.
(6) Any person interested, including the Director of the Public
Registry, may, within six days of the publication of the said notice
in the Government Gazette, enter an appeal from such order by
means of an application to the Court of Appeal.
(7) Notice of any appeal so entered by any person other than
the Director of the Public Registry shall be given to the latter by the
Registrar of Courts not later than two days from the date of filing of
the application of appeal.
(8) Any correction ordered by the Visitor as aforesaid shall be
made by the Director within ten days of the publication of the order
in the Government Gazette or, where an appeal against such order
has been entered, within six days of the day on which the matter is
finally disposed of by the Court of Appeal.
(9) A   reference to the order made by the Visitor or, as the case
may be, to the judgment of the Court of Appeal shall be entered in
the margin of the register against the entry affected.
Correction of 
errors after 
declaration 
referred to in 
article 246.  
Amended by: 
XX.1934.7. 
Substituted by: 
VII.1982.4 
258.   Where it is found after the Director shall have signed the
declaration referred to in article 246, that an error has been made,
and such error had been incurred in transcribing an act in the
register, the correction of such error shall be made by the Director
by means of a note at the foot of the entry. Such correction shall be
dated and signed by the Director.
Holidays.
times established in this Title.
66               CAP.16. ħ                CIVIL CODE
Inspection of 
registers by Court 
of Revision of 
Notarial Acts.
260. (1) The registers as well as the acts and documents
annexed thereto shall be inspected twice in every year by the Court
of Revision of Notarial Acts.
(2) The first inspection shall take place during the months of
March and April, and the second during the months of September
and October.
Duties of court.  
Substituted by:
VI.1968.5.
Amended by: 
XIII.1983.5; 
XXXI.1986.4; 
III.1994.7.
261. The court shall in the course of such inspection, ascertain
whether the provisions of this Title have been complied with by the
Director or one of the Assistant Directors or of the officers
mentioned in sub-article (1) of article 306, as the case may be, and
it shall be lawful for the court, in respect of any contravention, to
inflict upon the Director or an Assistant Director or an officer
mentioned in sub-article (1) of article 306, as the case may require,
a fine  (ammenda)  not exceeding five liri:
Provided that, where the contravention consists in the omission
of anything which is required to be done under this Title and it is
not possible for the court to ascertain who was responsible for such
omission, the contravention shall be deemed to have been
committed by the Director and the punishment shall be inflicted
accordingly.
Persons refusing to 
give information 
concerning 
particulars, 
262.   Any person required by the competent officer to give
information concerning the particulars required for the drawing up
of any of the acts referred to in this Title, who refuses to answer
any question put to him by such officer relating to such particulars,
or falsely states that he does not know such particulars, shall, on
conviction by the competent court, be liable to imprisonment for a
term not exceeding three months.
or making false 
declaration,
263.   Any person who, either of his own accord or when
questioned by the competent officer, knowingly makes any false
declaration concerning any particulars required for the drawing up
of any of the said acts, shall, on conviction by the competent court,
be liable to the punishment established in the last preceding article.
or disobeying any 
order.
Amended by: 
XI.1977.2; 
XIII.1983.5.
264.   Whosoever shall, except in the cases provided in the
foregoing articles, offend against any of the provisions of this Title
or disobey any order given to him under the provisions of this Title
shall, on conviction by the competent court, be liable to detention
for a term not exceeding one month or to a fine ( ammenda ) not
exceeding five liri.
Where offender 
after expiating 
punishment 
persists in refusing 
to answer.
265.   If, after undergoing punishment, the offender shall persist
in refusing to answer any question put to him under the provisions
of article 262, or to comply with the provisions of the law, or to
obey the order mentioned in the last preceding article, every such
refusal shall, each time it is repeated, be deemed to be a new
offence.
Saving as regards 
other punishments 
for more serious 
offences.  
Cap. 9.
266. (1) Nothing in the foregoing articles contained shall
affect the application of any heavier punishment as provided in the
Criminal Code.
(2) Any person guilty of forgery of any of the acts or registers
mentioned in this Title, or of any certificate or other document
     CIVIL CODE            ġ CAP. 16.             67
which, under the provisions of this Title, may be delivered, in lieu
of the act, in connection with the registration of any birth,
marriage, or death, shall be liable to the punishment established in
the Criminal Code for forgery of public writings.
(3) Action shall be taken by the Police  ex officio  in   respect of
any offence against the provisions of this Title.
Where several 
persons are bound, 
performance by 
one discharges the 
others. 
267.   Where several persons are bound to give notice, or to
make a declaration, or to perform any other act, and the obligation
is such as to be capable of being performed by any one of such
persons alone, the performance by any one of such persons shall
operate so as to discharge all the others.
Fees. 
Amended by: 
XXXI.1965.15. 
Substituted by: 
XXX.1979.4.
Amended by: 
IX.2000.2.
268.   The fees established in Part I of the Schedule to this Code
may from time to time be amended, substituted or added to by
regulations made by the Minister responsible for the Public
Registry and shall be levied by the officer designated by the said
Minister for that purpose.
Adopted Persons 
Register.  
Added by: 
XXI.1962.8.
Amended by:
XXVIII.1963.4; 
XXV.1973.2; 
III.1994.8.
269. (1) There shall be maintained at the Public Registry
Office in Malta and in Gozo a register, to be called the Adopted
Persons Register, in which shall be made such entries as may be
directed to be made therein by adoption decrees, but no other
entries.
(2) In the Adopted Persons Register maintained at the Public
Registry Office in Malta there shall be entered the adoption decrees
relating to any person whose act of birth is registered in that Office
or is not registered in any Public Registry Office in these Islands,
and in the Adopted Persons Register maintained at the Public
Registry Office in Gozo, there shall be entered the adoption decrees
relating to any person whose act of birth is registered in that Office.
(3) Where an entry in the Adopted Persons Register contains a
record of the date of the birth or the country or the town or village
of the birth of the adopted person, a certified copy of that entry
shall, until the contrary is proved, be received as evidence of that
date or country or town or village in all respects as if the copy were
a certified copy of an act of birth.
(4) The Director of the Public Registry shall cause an index of
the Adopted Persons Register to be made and kept in the Public
Registry Office in Malta and in Gozo; and every person shall be
entitled to search that index and to have a certified copy of any
entry signed by the Director in the Adopted Persons Register in all
respects upon and subject to the same conditions as to payment of
fees and otherwise as  mutatis   mutandis  are applicable under this
Title, in respect of searches in the register books kept in the Public
Registry and in respect of the supply from that Office of certified
copies or translations of entries in the register books of the acts of
birth, marriage and death.
(5) The Director of the Public Registry shall, in addition to the
Adopted Persons Register and the index thereof, keep such other
registers and books, and make such entries therein, as may be
necessary to record and make traceable the connection between an
68               CAP.16. ħ                CIVIL CODE
entry in the register book of acts of birth which has been marked
“Adopted” pursuant to article 125 or article 290 of this Code, and
any corresponding entry in the Adopted Persons Register; but the
registers and books kept under this sub-article as well as the
adoption decrees and any amendments thereof communicated to the
Director of the Public Registry shall not be, nor shall any index
thereof be, open to public inspection or search, nor, except under an
order of a court, shall the Director of the Public Registry furnish
any information contained in or any copy or extract from any such
registers, books or decrees to any person other than an adopted
person who has attained the age of eighteen years and to whom that
information, copy or extract relates; and in exceptional cases any
public officer duly authorised for that purpose by the Minister
responsible for justice.
Functions of a 
diplomatic or 
consular 
representative in 
relation to acts of 
civil status.  
Added by: 
VI.1968.6. 
Amended by: 
VII.1982.5.
270. (1)  A diplomatic or consular representative, when so
requested by any person interested, shall, in respect of a child who
is born or of a person who dies in a foreign country and is a citizen
of Malta  -
( a ) draw up the act of birth of such child or the act of
death of such person and record such act in an apposite
register;
( b ) receive for registration the act of birth of such child or
the act of death of such person issued by the competent
authority of the place where the birth or death has
taken place and record such act in the apposite register
referred to in the last preceding paragraph.
(2) Where a citizen of Malta marries in a foreign country, a
diplomatic or consular representative shall receive for registration,
at the request of either of the parties contracting such marriage or
any parents of either of them, any act which according to the law of
the country where the marriage has taken place is evidence of the
marriage and shall record such act in an apposite register.
(3) The provisions of this Title shall, as far as practicable,
apply to and for the purpose of the acts drawn up and the registers
kept under the provisions of the foregoing sub-articles by
diplomatic and consular representatives, who shall have in respect
of such acts and registers the same powers, rights and obligations
as are in this Title conferred or imposed upon the Director of Public
Registry.
(4) The registers referred to in sub-articles (1) and (2) of this
article shall be kept for yearly periods and shall contain an
alphabetical index of the registrations entered therein. A   certified
duplicate copy of such registers with the diplomatic or consular
representative’s signature immediately after the last entry
transcribed therein shall be transmitted to the Director of Public
Registry, for preservation in the Public Registry in Malta, not later
than the 31st day of March of the year immediately following the
year to which the registers refer, and the provisions of articles 251,
252, 253, 254, 255, 256 and 257 shall apply in regard to the
registrations contained in such duplicate registers as if they were
registrations in the register books mentioned in article 238.
     CIVIL CODE            ġ CAP. 16.             69
(5) The Director of the Public Registry, within thirty days of
any correction, cancellation or annotation which he makes in a
duplicate register pursuant to the judgment of a court or to the order
of one of the Visitors of notarial acts, shall inform of such
correction, cancellation or annotation the diplomatic or consular
representative in the country where the original register is kept who
shall forthwith cause the same correction, cancellation or
annotation, as the case may be, to be made in such register and
shall initial it.
(6) Any person who before a diplomatic or consular
representative commits the offence referred to in article 263 may in
Malta be prosecuted, tried and punished for such offence in the
same manner and to the same extent as if the offence had been
committed in Malta.
Cap. 9.
(7) Any person who suppositiously represents to a diplomatic
or consular representative an infant to have been born of a woman
who had not been delivered of a child so as to cause such
representative to draw up an act of birth under sub-article (1) of
this article shall be prosecuted, tried and punished in Malta in the
same manner and to the same extent as if he had committed in
Malta the corresponding offence mentioned in article 210 of the
Criminal Code.
(8) The provisions of sub-articles (6) and (7) of this article
shall not apply if the person who has committed the offence has
been tried for the same facts constituting it in another country.
(9) Any reference in this article to a diplomatic or consular
representative shall be deemed to be a reference to the diplomatic
or consular representative of the Government of Malta in the
foreign country where a birth, marriage or death has taken place.
Power to make 
regulations. 
Added by: 
XXV.1973.3. 
Substituted by: 
III. 1994.9.
Amended by:
IX.2000.2.
271.  (1)  The Minister responsible for the Public Registry may
make regulations:
( a ) providing for the making of duplicates of original acts
of civil status or other documents relative to civil
status, entered in the Public Registry in virtue of this
Code or of any other law, as well as duplicates of the
relative registers of such acts or documents, as well as
duplicates of the relative index of such acts,
documents or registers where the original act,
document, register or index has been lost, destroyed or
damaged, whether such loss, destruction or damage
has occurred by wear and tear or otherwise;
( b ) prescribing the mode in which such duplicates shall be
prepared and authenticated;
( c ) prescribing that any acts, documents, registers or
indices referred to in paragraph ( a ) be reproduced by
microfilming, and the mode in which such
reproductions are to be made, stored and made
accessible to the public;
( d ) prescribing the manner in which reproductions made
70               CAP.16. ħ                CIVIL CODE
by microfilming and copies thereof may be
authenticated;
( e ) providing for the computerisation, including storage of
information taken from any act or document entered in
the Public Registry and for the production of
documents containing statements of such information
and the authentication of such documents;
( f ) prescribing the form of the application for the issue of
certificates containing a full copy or an extract of any
act, document, register or index;
( g ) providing for any matter incidental or supplementary
to any of the foregoing provisions.
(2) Any duplicate copy made in accordance with regulations
made under sub-article (1) shall for all intents and purposes,
replace the relative original act, document, register or index. 
Sub-title II
O F  A CTS OF  B IRTH
Persons bound to 
give notice of birth 
of child.
272.   In the case of every child born, it shall be the duty of the
father, and in default of the father, of the physician, surgeon,
midwife, or any other person in attendance at the birth, or in whose
house the birth has taken place, to give, within five days of such
birth, notice thereof to the officer charged with the duty of drawing
up the act of birth.
How notice is 
given. 
Amended by: 
XXII.1939.3.
273. (1) Notice of the birth may be given by transmitting to
the said officer a certificate of baptism, signed by the parish priest
or other clergyman who shall have baptised the child.
(2) Any such certificate shall, if it contains the particulars
required for the drawing up of the act of birth, be accepted in lieu
of the declaration mentioned in the following articles, and, the said
officer, if satisfied as to the correctness of the particulars therein
contained, may, on such certificate, draw up the act of birth.
(3) In any case, however, the certificate of baptism shall be
delivered to the Director together with the act of birth.
Verbal or written 
notice.
274.   Notice of the birth of a child may also be given by means
of a letter signed by the person giving the notice, or verbally; in the
latter case, the person giving the notice shall attend personally
before the officer charged with the duty of drawing up the act of
birth.
Where notice is 
given personally 
by the father,
275.   Where, under the provisions of the last preceding article,
the notice of the birth is given personally by the father of the child,
the said officer shall, upon the declaration made by the father
respecting the particulars required for drawing up the act of birth,
draw up such act without any delay.
     CIVIL CODE            ġ CAP. 16.             71
or by any other 
person.
276.   Where notice of the birth is given by any person other than
the father of the child, or where such notice is given by the father or
any other person by means of a letter, the said officer shall, within
the three next following days, require the father of the child to
attend at his office to make the declaration respecting the said
particulars.
Duties of officer, 
in default of father.
277. (1) In default of the father of the child, or if no notice has
been given, the said officer shall require any person whom he
believes to have knowledge of the particulars required for the
drawing up of the act, to attend in order to make the declaration
concerning such particulars.
(2) The same shall apply where the said officer is not satisfied
as to the correctness of the particulars given to him by the father or
any other person, or contained in the certificate mentioned in
article 273.
Particulars of act of 
birth.  
Amended by: 
XXI.1933.2; 
XXXI.1965.8;
XXX. 1995.2.
278. Every act of birth shall be drawn up in accordance with
Form C in Part II of the Schedule to this Code and, saving any other
provisions, it shall contain the following particulars:
( a ) the date of the act itself;
( b ) the hour, day, month, year, and place of birth; 
( c ) the sex of the child;
( d ) the name given to the child, and, where more names
are given, a special indication of the name or names by
which the child is to be called;
( e ) the name, surname, identification document, age, place
of birth and of residence of the father of the child, of
the mother, and of the person making the declaration:
  Provided that where the mother of the child was a
widow before her marriage to the father of the child,
the name and surname of her former husband shall also
be stated;
( f ) the name and surname of the father of each of the
parents of the child, and of the father of the person
making the declaration, stating whether he is alive or
dead.
Illegitimate 
children.  
Amended by: 
XX.1934.8.
279. (1) In the case of an illegitimate child, the name of the
father shall not be stated in the act, except at the request of the
person acknowledging himself before the officer drawing up the act
to be the father of such child.
(2) Where such request is made the father shall be designated
as illegitimate.
(3) Where no such request is made, there shall be stated in the
proper place in the act that the father of the child is unknown.
Child born of  a 
married woman.
280. (1) Where a child is born of a married woman, the name
of her husband shall be entered in the act as that of the father,
notwithstanding any declaration to the contrary, saving any
correction which may subsequently be made upon a judgment in
72               CAP.16. ħ                CIVIL CODE
regard to the filiation of the child.
(2) The provisions of this article shall not apply - 
( a ) if the husband was, during the whole period of the
three hundred days next preceding the day of the birth
of the child, absent from Malta, and such absence is
attested in writing and on oath before one of the
Visitors of notarial acts by at least two trustworthy
persons; or
( b ) if the husband had, during the whole of the said period,
lived legally separated from his wife.
Particulars 
respecting mother 
of illegitimate 
child. 
Amended by: 
VII.1985.2; 
XII.1986.4.
281. (1) In the case of an illegitimate child, where notice of
the birth of such child or the declaration of the particulars
concerning the birth of such child has not been given or made by
the mother herself, or by either of her parents, or any of her
brothers or sisters, the said officer shall, at least two days before
entering in the act the particulars relating to the mother of the child,
give notice to the person who shall have been indicated to him as
the mother of the child, or to either of her parents; and if, within the
said two days, it shall be denied that such person is the mother of
the child, the officer shall make a report thereof to one of the
Visitors of notarial acts, who, after examining on oath such person
and any other person whom he believes to be able to give correct
information, shall, if satisfied that such person is the mother of the
child, order that her name, together with such other particulars as
are required under the provisions of the foregoing articles, be
entered in the act of birth, and that the depositions taken be
delivered, in original, to the Director together with the act.
(2) In the case of an illegitimate child notice of whose birth has
not been given, and the mother and her parents are dead or cannot
be found, notice of the birth may at any time be given to the said
officer by any person bound to give such notice as heretofore, or by
any person having an interest or by the child or its lawful
representative and the said officer shall make a report thereon to
one of the Visitors of notarial acts who shall cause a notice in the
Form BB   in Part II of the Schedule to this Code to be published in
the Gazette, calling upon any party interested to declare, within
fifteen days from the publication of that notice, by means of a note,
that he desires to contest such registration, and on the expiration of
such period and after examining on oath any person whom he
believes to be able to give correct information, whether such person
shall have filed a note or otherwise, and following the examination
of any documentary evidence that may be produced, shall, if
satisfied that the maternity of the child has been established, order
that the name and surname of the mother, together with such other
particulars as are required under the provisions of the foregoing
articles, be entered in the act of birth, and that the depositions taken
be delivered, in original, to the Director together with the act.
(3) In any case referred to in sub-articles (1) and (2) of this
article the act of birth shall be countersigned by the said Visitor.
     CIVIL CODE            ġ CAP. 16.             73
Signing of act.  
Amended by: 
XXI.1933.4.
282. (1) On the entry of the particulars concerning the birth of
a child, the act shall be read to the person making the declaration of
such particulars; it shall thereupon be signed by such person and
then by the officer drawing up the act.
(2) Where the person making the declaration states that he is
unable to write, an entry of such fact shall be made by the side of
the declarant’s name.
Still-born children.
shall be stated in the act.
(2) Where the child, having been born alive, dies at any time
before the drawing up of the act, the act of death shall be drawn up
immediately after the act of birth.
(3) In case of abortion, an act of birth shall only be drawn up
where the foetus shall have completely assumed the human form.
Officer may 
require to see the 
child.
284.   It shall be lawful for the officer drawing up an act of birth
to demand to see the child, before drawing up such act.
Children born at 
sea. 
Amended by: 
XXII.1939.4; 
IX.1971.3; 
XI.1973.377; 
XI.1977.2;
XVII.1991.81.
285. (1) In the case of any birth at sea, on board a vessel
registered in Malta, the master shall, within twenty-four hours enter
in his log-book the fact of such birth with the particulars required
under articles 278, 279, 280 and 283.
(2) Upon the arrival of such vessel in Malta, the Malta
Maritime Authority shall transmit a copy of such entry to the
officer charged with the drawing up of the acts of birth in Valletta,
who shall forthwith draw up the act of birth of such child.
(3) Where the arrival of such vessel in Malta does not take
place within three months after the birth of the child, the master
shall, not later than three months after the said birth, transmit a
copy of the relative entry to the Malta Maritime Authority who
shall deal with it as if the said vessel had arrived in Malta.
Duty of father or, 
in default, of 
mother.  
Amended by: 
VI.1968.8.
286. (1) Nothing contained in article 285 shall affect the
obligation of the father, or in his default, the mother of the child, to
make, within five days from his or her arrival in Malta, the
declaration of the particulars concerning the birth of the child to the
officer who, having regard to the place of residence of the father,
or, in his default, of the mother of the child, is charged with the
duty of drawing up the act of birth; and such officer shall, upon
such declaration, proceed to draw up the act of birth, unless such
act shall have already been drawn up and registered under the
provisions of article 285.
(2) If the particulars contained in the said declaration or any of
them differ in any respect from the corresponding particulars
entered in the registered act, or if any of the particulars contained
in the said declaration is omitted from the registered act, a
correction in the register may be made under the authority of one of
the Visitors of notarial acts, who shall countersign such correction.
74               CAP.16. ħ                CIVIL CODE
Foundlings.  
Amended by: 
XXI.1933.5; 
XXXI.1965.8.
287. (1) Where any new-born child is found, the officer
charged with the duty of drawing up the acts of birth in the place
where such child is found, shall, with the assistance of one or more
Government District Medical Officers, draw up an act to be styled
" repertus ",   according to Form D in Part II of the Schedule to this
Code.
(2) In such act the said officer shall enter the following
particulars- the apparent age and the sex of the child, the name
given by him to the child, the place where the child was found, the
person or institution in whose charge the child was placed, whether
the child bore any apparent mark, the kind of clothing and any
other object found on the person of the child.
(3) Such act shall also be delivered to the Director for
registration as in the case of an act of birth.
Acts of birth to be 
delivered for 
registration.  
288.   The officer drawing up an act of birth or   a  repertus,  shall,
within two days from the day on which such act or  repertus  was
drawn up deliver the same to the Director for registration.
Where, after 
registration, 
paternity of 
illegitimate child is 
established.  
Amended by: 
XXXI.1965.18.
289. (1) Where, after an act of birth of an illegitimate child
has been registered without indication of the name of the father, the
paternity of such child is determined by a judgment of the court, or,
subject to the provisions of article 280, acknowledged by the father
himself in a public deed, the name of the illegitimate father may, at
the request of any person interested, be entered by means of a note
in the margin of the register.
(2) The same shall apply where, after the registration of a
repertus  it   becomes known who the parents of the foundling are,
either by means of a declaration made by themselves or by a
judgment of the court.
Adoption or 
legitimation.  
Amended by: 
XXI.1962.9.
290. (1) The legitimation of an illegitimate child shall also be
entered in the register by means of a note in the margin, and, where
sub-article (3) of article 125 falls to be applied, the adoption of any
person shall be entered in the register by means of the marking
referred to in that sub-article.
(2) In the case of legitimation, it shall be stated in the note
whether the legitimation took place by subsequent marriage, or by a
decree of the competent court.
(3) The registration of the legitimation of any person whose act
of birth is not registered in the Public Registry shall be made in a
book kept for the purpose, and, in any such registration, there shall
be stated all such particulars as are required for the drawing up of
an act of birth or such of them as may be known.
Documents to be 
produced.  
Amended by: 
XXI.1962.10.
291. (1) The party making the request for any entry as
provided in the last two preceding articles shall deliver to the
Director an authentic copy of the public deed, judgment or decree,
relating to the judicial declaration of paternity or maternity, or
legitimation.
(2) In the case of a legitimation by subsequent marriage, which
has been duly registered, a reference to such registration shall be
     CIVIL CODE            ġ CAP. 16.             75
made in the note: where the marriage has not been registered, the
entry shall not be made unless the party making the request for the
entry shall deliver to the Director a document attesting the
celebration of the marriage.
Legitimation by 
subsequent 
marriage. 
292.   Where the legitimation of an illegitimate child takes place
by subsequent marriage contracted previously to the registration of
the birth of such child, the act of birth of such child may be drawn
up directly as in the case of a legitimate child.
Sub-title III
O F  A CTS OF  M ARRIAGE
Particulars of act of 
marriage. 
Amended by: 
XXXI.1965.8; 
XXXVII.1975.23; 
XXII.1976.3; 
XXX.1995.3.  
293.   Where any marriage takes place, the parties contracting
such marriage shall draw up or cause to be drawn up an act, in
accordance with Form E in Part II of the Schedule to this Code,
entering therein -
( a ) the date of the act;
( b ) the name, surname, date and place of birth,
identification document and place of residence of the
parties;
( c ) the name, surname, date and place of birth and place of
residence of the witnesses present at the solemnization
of the marriage;
( d ) the name and surname of the father, and the name,
surname and maiden surname of the mother of the
parties;
( e ) the day, month and year when, and the church, chapel,
or other place where the marriage took place; 
( f ) a declaration as to the solemnization of the marriage
signed by both of the parties, or if the marriage takes
place by proxy by the proxy and by the other party, in
the presence of and countersigned by an officer of the
Marriage Registry or other person authorized for the
purpose by the Marriage Registrar.
Delivery of act of 
marriage.  
Substituted by 
XXXVII.1975.23.
294.   The act of marriage shall, as soon as it is completed and
signed, be delivered for registration to the person by whom the
declaration referred to in paragraph ( f )   of article 293 is
countersigned, and such person shall at the earliest opportunity take
all such steps as may be required for its registration by the Director.
Entry of decisions, 
declarations and 
prohibitions 
affecting marriage.  
Substituted by: 
XXXVII.1975.23;
III.1994.10.
295.   (1) Any judgment or other decision given by a competent
court whereby a registered marriage is annulled or the status
resulting therefrom is affected shall, at the request of any person,
be entered in the register by means of a note in the margin.
(2) The person making the request shall deliver to the Director
an authentic copy of the relevant judgement or other decision.
76               CAP.16. ħ                CIVIL CODE
(3) The Director shall also enter, by means of a note in the
margin of an act in respect of a registered marriage, any declaration
made by a married woman on the Form Q delivered by her in
accordance with the provision of sub-article (5) of article 4 of this
Code, as well as any revision to the maiden surname or any
prohibition of use of the husband’s surname referred to in a note of
personal separation between the spouses enrolled in accordance
with article 62A of this Code, and a reference to the date and place
of marriage shall be made in any such note of enrolment.
Sub-title IV
O F  A CTS OF  D EATH
Notice of death by 
physician, 
Amended by: 
XXXI.1965.8.
296. (1) On the death of any person, the physician or surgeon
in attendance during the last illness who of his own personal
knowledge or from information obtained from any other person is
aware of such death shall, without delay, give notice thereof in
writing, according to Form F in Part II of the Schedule to this Code,
to the officer charged with the duty of drawing up the act of death,
specifying the house or other place in which such person died, the
cause of death, and the hour at which the death occurred.
(2) Such physician or surgeon may deliver the notice to any
adult member of the family of the deceased, to be transmitted to the
officer above-mentioned.
(3) The provisions of this article shall not apply, if the
deceased is one of the persons, on the occasion of whose death the
drawing up of an act of death is not, under the provisions of article
235, required for the purposes of this law.
by members of 
family.
297.   In the case of death of any person who has not been
attended by a physician or surgeon, it shall be the duty of the
members of the family and of the domestic servants of the deceased
as well as of the person occupying the house or other place in
which the death occurred, or having the management of such house
or place, to give notice of such death.
Certificate of 
person presumed 
dead.  
Added by: 
LIV.1974.8.
298. (1) If after the disappearance of a person a magisterial
enquiry is held and the enquiring magistrate is of the opinion that,
taking all the circumstances of the disappearance into consideration
the conclusion is that the person is probably dead, then a copy of
the  procès-verbal  shall be transmitted by the enquiring magistrate
to the officer charged with the drawing up of the act of death and
such officer shall, within two days from the receipt of the copy of
the  procès-verbal ,   draw up according to Form G in Part II of the
Schedule to this Code a provisional act of death of the person
whose disappearance has been established by the  procès-verbal.
The same officer shall, within two days from the drawing up of the
said provisional act of death, deliver the same to the Director for
registration.
     CIVIL CODE            ġ CAP. 16.             77
(2) The provisional act of death shall become final after the
lapse of one year from the date of registration.
(3) For the purposes of this article the enquiring magistrate
shall indicate in the  procès-verbal  all the particulars mentioned in
paragraphs   ( a ), ( b ),   ( c ) and ( d )   of article 301 and the probable time,
date and place of the disappearance of the person concerned.
Certificate of 
absent person 
presumed dead.  
Added by: 
LIV.1974.8. 
Amended by: 
LVIII.1974.68.
299. (1) If the absence of a person has continued for a period
of six years since provisional possession has been granted or if the
absence has been declared by judgment as provided under article
223 and such person is not one in respect of whose death the
provisions of article 234 are not applicable in terms of article 235,
then the heirs, whether testamentary or heirs-at-law of the absentee,
or their heirs, or any interested person or the Attorney General,
may make a demand to the court of voluntary jurisdiction in the
island in which the absentee last resided to order the officer
charged with the duty of drawing up the act of death, to draw up
and deliver to the Director for registration within four days from
that order, a certificate of death of the absent person according to
Form G in Part II of the Schedule to this Code.
(2) The absent person shall be presumed to have died on the
day on which he was last heard of, and that date and all the
particulars referred to in article 301, where known, shall be entered
in the act of death.
Return of absentee 
after final 
certificate of death.    
Added by: 
LIV.1974.8.
300.   Whenever a final certificate of death is drawn up and
registered in accordance with article 298 or 299 and the person
whose death has been so registered subsequently returns or his
existence is established, the provisions of article 226 shall apply.
Particulars of act of 
death. 
Amended by: 
XXI.1936.6; 
XXII.1939.5; 
XXXI.1965.8;
XXX. 1995.4.
301.   The officer mentioned in article 296, howsoever he may
have received information of the death of any person, shall, after
ascertaining such death, draw up, within two days from the receipt
of such information, an act according to Form G in Part II of the
Schedule to this Code containing the following particulars:
( a ) the date of the act;
( b ) the name, surname, identification document, age, place
of birth, and place of residence of the deceased;
( c ) the name and surname of each of the parents of the
deceased stating whether they are alive or dead;
( d ) the name and surname of the husband or wife, if the
deceased was married, or a widower or a widow;
( e ) the hour, day, month, and year when, and the place
where the death occurred, and the place where the
deceased was, or will be, buried;
( f )  the cause of death.
Powers of officer 
to collect 
information.
302.   The said officer shall, for the purpose of collecting or
ascertaining the particulars specified in the last preceding article,
have the same powers as under article 277 are vested in the officer
charged with the duty of drawing up acts of birth.
78               CAP.16. ħ                CIVIL CODE
Duties of officers 
of hospitals, etc.
303. (1) The superior officer of every hospital, asylum or
other public charitable institution, shall take steps to collect, from
the time of admission, the particulars specified in paragraphs ( b ),
( c )   and   ( d )   of article 301, in regard to every person admitted into
the institution under his charge.
(2) The same shall apply to the superior officer of any prison,
in regard to any prisoner.
(3) The police shall give to the said officers such assistance as
may be required to enable them to comply with the provisions of
this article.
(4) The provision of this article shall not apply to military or
naval hospitals or prisons.
Deaths at sea. 
Amended by: 
XXII.1939.6; 
IX.1971.3; 
XI.1973.377; 
XVII.1991.81.
304. (1) Where any person dies at sea, on board a vessel
registered in Malta, the master shall, within twenty-four hours,
enter in his log-book the fact of such death with the particulars
specified in article 301.
(2) Upon the arrival of such vessel in Malta, the Malta
Maritime Authority shall transmit a copy of such entry to the
officer charged with the drawing up of the acts of death in Valletta,
who shall forthwith draw up the act of death of such person.
(3) Where the arrival of such vessel in Malta does not take
place within three months after the said death, the master shall, not
later than three months after the said death, transmit a copy of the
relative entry to the Malta Maritime Authority who shall deal with
it as if the said vessel had arrived in Malta.
Acts of death to be 
delivered for 
registration.
305.   The officer drawing up an act of death, shall, within two
days from the drawing up of the act, deliver the same to the
Director for registration.
Exercise of 
functions assigned 
to the Director.  
Added by: 
VI.1968.11. 
Amended by: 
XXXI.1986.4. 
Substituted by: 
III.1994.11.
306. (1) Any officer who holds the degree of doctor of laws
and either a warrant to practise as an advocate or a warrant to
practise as a notary public and who performs duties in the Public
Registry may exercise all or any of the functions which are under
any provision of this Code or of any other law assigned to the
Director of the Public Registry, and that law shall be construed
accordingly.
(2) In the exercise of any such function, the said officer shall
have the same powers and the same obligations as are conferred or
imposed upon the Director, without prejudice to the provisions of
sub-article (4) of this article.
(3) The words ‘signed by the Director’ or words to similar
effect, with reference to certificates of civil status, shall be taken to
include any seal, emblem or signature made or processed by
photographic means, by print or in any other form at the discretion
of the Director as further authenticated by the signature of the
issuing officer authorised for the purpose by the Director.
(4) The officers referred to in this article shall, in the exercise
of their functions under this Code or any other law, be subject to
the authority, direction and control of an Assistant Director so
     CIVIL CODE            ġ CAP. 16.             79
delegated by the Director of the Public Registry and referred to in
this article as the Deputy Director:
Provided that the exercise of the Deputy Director’s powers under
this article shall be without prejudice to the overall authority of the
Director.
(5) The Director of the Public Registry shall be the only
competent person to represent in any capacity the Public Registry
in any legal proceedings under this Code or any other law.
BOOK SECOND
OF THINGS
PART I
O F  R IGHTS OVER  T HINGS
Title I
O F  T HINGS AND THEIR  D IFFERENT  K INDS
Movable or 
immovable 
property.
307.  All things which can be the subject of private or public
ownership are either movable or immovable property.
Sub-title I
O F  I MMOVABLE  P ROPERTY
Immovable 
property.
308.  The things following are immovable by their nature:
( a ) lands and buildings;
( b ) springs of water;
( c ) conduits which serve for the conveyance of water in a
tenement;
( d ) trees attached to the ground;
( e ) fruits of the earth or of trees, so long as they are not
separated from the ground or plucked from the trees; 
( f ) any movable thing annexed to a tenement permanently
to remain incorporated therewith.
 Unless a different intention appears from the
circumstances, such thing shall be deemed to be so
annexed to a tenement if it is fastened thereto by any
80               CAP.16. ħ                CIVIL CODE
metal or cement, or if it is otherwise so affixed that it
cannot be removed without being broken or damaged
or without breaking or damaging the tenement.
When certain 
things become 
movable.
309. The things mentioned in paragraphs   ( c ),   ( d ),   ( e ) and ( f )   of
the last preceding article become movable as soon as they are
separated from the ground, tree, or tenement, although they have
not yet been removed elsewhere:
Cap. 12.
Provided that the fruits of the earth or of trees, even before they
are detached, shall be considered as movables for the purposes of
article 288 of the Code of Organization and Civil Procedure, as also
when they are the subject of a sale or other disposal, as things
distinct from the earth or tree, and to be separated therefrom.
Things immovable 
by reason of the 
object to which 
they refer.
310.   The following are immovables by reason of the object to
which they refer:
( a ) the  dominium directum  or the right of the dominus on
the tenement let out on emphyteusis, and the
dominium utile or the right of the emphyteuta on such
tenement;
( b ) the right of usufruct, or use of immovables and the
right of habitation;
( c ) praedial easements;
( d ) actions for recovering or claiming any immovable
thing or any of the rights mentioned in paragraphs ( a ),
( b ) and ( c ) of this article; or for a declaration that an
immovable is not subject to any of such rights; or for
claiming any inheritance or part thereof, or the legitim
or any other portion of hereditary property given by
law.
Definition of 
“immovable 
thing”.
311.   The words "immovable thing" or "immovable things", and
the word "immovable" or "immovables" without any other addition
or indication restricting their meaning, shall include both
immovables by their nature, as well as immovables by reason of the
object to which they refer.
Sub-title II
O F  M OVABLE  P ROPERTY
Movable property. 312.   All things, animate or inanimate, which, without any
alteration of their substance, can move themselves or be moved
from one place to another are movable by nature, even though such
things form a collection or a stock-in-trade.
Materials deriving 
from demolition of 
buildings.
313.  Materials derived from a building which has been
demolished, or gathered for erecting a new building, are movables
until they are used in a construction.
Ships, etc. 314.   Ships or other water-craft, baths or other floating
     CIVIL CODE            ġ CAP. 16.             81
structures are also movables.
Shares or interests 
in commercial 
companies, etc.
315.   The following things are movables by regulation of law:
( a ) shares or interests in commercial or industrial
companies, even if immovable property is owned by
such companies; in which latter case such shares or
interests shall be deemed to be movables with respect
to each shareholder and only as long as the company
lasts;
( b ) life or perpetual annuities, including capitals for
annuities  ad formam bullae  and debts due for interest
on capitals invested in the fund formerly existing
under the name of  Massa Frumentaria , provided such
perpetual annuities, capitals and debts are not subject
to entail;
( c ) generally, all obligations, actions, even if hypothecary,
and rights not considered immovable under the
provisions of the last preceding sub-title.
Definition of 
“movable property 
or things”, 
“movable effects” 
or “movable 
substance”.
316.   The words "movable property or things", "movable
effects" or "movable substance" used in any provision of law or in
any disposition of man, without any other addition or indication
restricting their meaning, shall include both the things which are
movable by nature and the things which are generally considered
movable by regulation of law.
Definition of 
“movables”.
317. (1) The word "movables" used in any provision of law,
without any other addition or indication restricting its meaning,
shall likewise include both the things which are movable by nature,
and the things considered movable by regulation of law.
(2) If used in any disposition of man, it shall not, of itself,
include money or documents of title to money, jewels, articles of
precious metal or things forming the object of a trade; nor shall it
include property considered as movable by regulation of law.
Definition of 
“furniture”.
318. (1) The word "furniture" comprises all furnishing
movables, including the pictures and statues forming part of the
furniture of an apartment.
(2) It shall not include, however, collection of books, pictures,
or statues.
Definition of “a 
house with all that 
it contains”.
319.   The expression "a house with all that it contains" shall
include all movable things, excepting money or documents of title
to money, jewels, articles of precious metal intended for the
ornamentation of the person or to be worn, things that are
accidentally in the house or that belong to third parties and debts
due or other rights the titles to which are in the house.
82               CAP.16. ħ                CIVIL CODE
Title  II
O F  O WNERSHIP
Ownership. 320.   Ownership is the right of enjoying and disposing of things
in the most absolute manner, provided no use thereof is made
which is prohibited by law.
No person may be 
compelled to give 
up his property.  
Amended by: 
III.1930.2.
321.   No person can be compelled to give up his property or to
permit any other person to make use of it, except for a public
purpose, and upon payment of a fair compensation.
Owner of thing has 
right to reclaim it 
from any 
possessor.
322. (1) Save as otherwise provided by law, the owner of a
thing has the right to recover it from any possessor.
(2) A possessor who, after being notified of the judicial
demand for the recovery of the thing ceases of his own act, to
possess such thing, is bound, at his own expense, to regain
possession of the thing for the plaintiff, or, if unable to do so, to
make good its value, unless the plaintiff elects to proceed against
the actual possessor.
Ownership of land 
carries with it 
ownership of what 
is above and under 
it.
323.   Whosoever has the ownership of the land, has also that of
the space above it, and of everything on or over or under the
surface; he may make upon his land any construction or plantation,
and, under it, any work or excavation, and draw therefrom any
products which they may yield, saving, however, the provisions
relating to Praedial Easements under Title IV of Part I of Book
Second of this Code and any other provision of law in regard to
fortifications or other works of defence.
Constructions, etc., 
over or under the 
land belong to 
owner. 
324.   Any construction, plantation, or work, whether on or over
or under the land, shall, unless the contrary is proved, be deemed to
have been made by the owner at his own expense, and to belong to
him, without prejudice, however, to the rights which third parties
may have acquired.
Owner may 
compel neighbour 
to fix boundaries of 
adjoining 
tenements.
325.   Every owner may compel his neighbour to fix, at joint
expense, by visible and permanent marks, the boundaries of their
adjoining tenements.
Owner may 
enclose his 
tenement.
326.   Every owner may enclose his tenement, saving any right
of easement to which other parties may be entitled.
Vacant property 
belongs to 
Government of 
Malta. 
Amended by: 
L.N. 148 of 1975.
327.   Vacant property belongs to the Government of Malta.
     CIVIL CODE            ġ CAP. 16.             83
Title III
O F THE  R IGHTS OF  U SUFRUCT,  U SE AND  H ABITATION
Sub-title I
O F  U SUFRUCT
Definition of 
“usufruct”.
328.   Usufruct is the real right to enjoy things of which another
has the ownership, subject to the obligation of preserving their
substance with regard both to matter and to form.
Where usufruct 
includes things 
which cannot be 
used without being 
consumed.
329.   If the usufruct includes things which cannot be used
without being consumed, such as money, grain, or liquids, the
usufructuary has the right to make use of them subject to the
obligation of paying the value thereof according to the valuation
made at the commencement of the usufruct; in the absence of such
valuation, he has the option either to return things in like quantity
and of like quality, or to pay their value at the current price at the
end of the usufruct.
Usufruct is 
constituted by law 
or by man.
330. (1) Usufruct may be constituted either by law or by the
will of man; in the latter case, if the usufruct refers to immovable
property, it may not be constituted except by a public deed, and, if
constituted by a deed  inter vivos , it shall not be operative with
regard to third parties except from the time when the deed is
registered in the Public Registry upon the demand of any of the
interested parties or of the notary before whom the deed was
executed.
Cap. 56.
(2) The note for the registration of the deed shall contain the
designation of the parties as specified therein, the date and nature
of the deed, and an indication of the thing to which the deed refers
in accordance with the provisions of the Public Registry Act, and it
shall be signed by the notary before whom the deed was executed.
Usufruct may be 
constituted 
conditionally, for a 
specified time or in 
favour of two or 
more particular 
persons.
331. (1) Usufruct may be constituted even conditionally or for
a specified period.
(2) It may be constituted in favour of one or more particular
persons.
(3) Where the usufruct is granted to several persons to be
enjoyed by them successively, it shall be operative only in favour
of those persons who are alive at the time when the usufruct
devolves upon the first usufructuary.
§  I.   O F THE  R IGHTS OF THE  U SUFRUCTUARY
Fruits belong to 
usufructuary.
332.   The usufructuary has the right to take all kinds of fruits,
whether natural, industrial, or civil, which the thing subject to his
usufruct is capable of producing.
84               CAP.16. ħ                CIVIL CODE
Natural, industrial 
and civil fruits.
333. (1) Natural fruits are those which are the spontaneous
produce of the soil. The produce and increase of animals and the
produce of stone-quarries or of mines are also natural fruits.
(2) Industrial fruits of a tenement are those which are obtained
by cultivation.
(3) Civil fruits are the rents of property let, emphyteutical
ground-rents, interest on capitals, and annuities.
Natural and 
industrial fruits 
hanging from 
branches or 
standing upon 
roots.
334. (1) Natural or industrial fruits hanging from branches or
standing upon roots at the time when the usufruct begins, shall
belong to the usufructuary, without prejudice to any portion which
may be due to the tenant under a metayer lease.
(2) Such fruits as are hanging from branches or standing upon
roots at the time when the usufruct terminates, shall belong to the
owner, without prejudice to any portion which may be due to the
tenant under a metayer lease, and to any compensation which may
be due to the usufructuary or his heirs for their cultivation.
Civil fruits deemed 
to be earned day by 
day.
335.   Civil fruits shall be deemed to be earned day by day, and
shall belong to the usufructuary in proportion to the duration of his
usufruct.
Fine. 336.   The alienation fines in emphyteutical grants shall belong
to the usufructuary.
Usufruct of a life 
annuity.
337.   The usufructuary of a life annuity is entitled to receive the
payments which fall due from day to day during his usufruct; but he
is bound to restore any surplus which he may have received in
advance.
Where usufruct 
includes things 
subject to gradual 
deterioration by 
use.
338.   If the usufruct includes things which, without being
consumed at once, are subject to gradual deterioration by use, the
usufructuary has the right to make use of them for the purpose for
which they are intended, and he is only bound to restore them, at
the end of the usufruct, in the condition in which they may be,
provided they have not been damaged through his malice or
negligence.
Fruit trees. 339.   Fruit trees that die, and those that are uprooted or broken
by accident, belong to the usufructuary, subject to his obligation of
replacing them by others.
Usufructuary may 
assign enjoyment 
of his right.
340.   A usufructuary may assign the enjoyment of his right
whether gratuitously or for valuable consideration.
Lease of property 
to remain 
operative.
341.   A lease of the property shall continue to be operative even
after the termination of the usufruct, provided such lease shall have
been made on fair conditions and for a period not exceeding eight
years, in the case of rural property, or four years, in the case of
urban property, or an ordinary period according to usage, in the
case of movable property, or any period shorter than any of the said
periods respectively in the case of property the letting of which for
a period exceeding such shorter period is prohibited.
Usufructuary may 
sell fruits that are 
pending.
342. The usufructuary may also sell the fruits that are pending;
and in such case, if the usufruct terminates before the fruits are
     CIVIL CODE            ġ CAP. 16.             85
gathered, the sale shall continue to be operative, and the owner is
entitled to receive the price of such fruits as have not yet been
gathered:
Provided that the owner shall have no action against the buyer
who may have paid the price of such fruits to the usufructuary
before the termination of the usufruct.
Usufructuary 
enjoys rights of 
easement.
343.   The usufructuary is entitled to enjoy, in the same manner
as the owner himself, any right of easement attached to the
tenement subject to his usufruct, and generally all the rights which
the owner might enjoy.
Usufructuary 
enjoys such stone-
quarries as are 
open.
344.   The usufructuary is also entitled to the enjoyment of any
stone-quarry which is already opened and being worked at the time
the right to the usufruct vests in him; he may not, however, open
new quarries.
Usufructuary has 
no right to 
treasure- trove.
345.   The usufructuary shall have no right to any treasure-trove
which may be found during the usufruct, saving the portion thereof
to which he may be entitled, according to law, for having
discovered it.
Owner may not 
prejudice rights of 
usufructuary.
346.   The owner may not by his own act or in any other manner
whatsoever prejudice the rights of the usufructuary.
Usufructuary 
cannot claim 
compensation for 
improvements.
347. (1) The usufructuary cannot, at the termination of the
usufruct, claim any compensation for the improvements of any kind
which he may have executed, even though the value of the thing
may have been considerably increased thereby.
(2) Any such improvements, however, may be taken into
consideration in the assessment of any damages for which the
usufructuary may be liable.
(3) Where no set-off arises under sub-article (2) of this article
the usufructuary may take away those improvements which may be
removed with profit to himself, and without damage to the
tenement, unless the owner prefers to retain them, on payment to
the usufructuary of a sum corresponding to the profit which the
latter might obtain by removing them from the tenement.
Usufructuary 
entitled to real 
actions competent 
to owner.
348.   It shall be competent to the usufructuary to bring any real
action competent by law to the owner.
§  II.   O F THE  O BLIGATIONS OF THE  U SUFRUCTUARY
Usufructuary to 
take things in the 
condition in which 
they are at the time 
the usufruct vests 
in him.
349. (1) The usufructuary takes the things subject to the
usufruct in the condition in which they are at the time the usufruct
vests in him.
(2) At the termination of the usufruct, he shall restore them in
the condition in which they are at that time, saving his liability for
any deterioration which may have occurred through his negligence.
86               CAP.16. ħ                CIVIL CODE
Making up of 
inventory.
350.   The usufructuary may not commence to exercise his rights
over the things subject to the usufruct before he has made up an
inventory of such things, containing a description of the movables
together with the value thereof, and of the state of the immovables,
unless such inventory is dispensed with in the act creating the
usufruct.
How inventory is 
made up.
351. (1) The inventory shall be made up in the presence of the
owner, or after his having been called upon to attend even by means
of a judicial letter.
(2) It must be made by a public deed unless in the act creating
the usufruct power has been given for it to be made by means of a
private writing, and the owner consents that it be so made.
(3) Unless otherwise provided in the act creating the usufruct,
the expenses of the inventory shall be borne by the usufructuary.
Security to be 
given by 
usufructuary.
352. (1) It shall likewise be unlawful for the usufructuary,
unless he has been exempted by the act creating the usufruct, to
commence to exercise his rights over the things subject to the
usufruct before he has given security that he will enjoy the things
so subject as a  bonus paterfamilias ,   that he will restore the
movables, refund the values of the things mentioned in article 329,
and make good any damage that might happen through his
negligence whether to the movables or to the immovables.
(2) The sum of the security, for the purposes of the
hypothecary registration, shall be regulated by the amount of the
capitals that are to be delivered to the usufructuary or that may be
restored to him during the usufruct, by the value of the movables,
and by the cost of such repairs in the immovables as may probably
be required during a period of five years and as are, according to
law, at the charge of the usufructuary.
(3) It shall be lawful for the court, according to circumstances,
to fix a lesser sum; and in such case, should the sum of the security
be spent or become insufficient before the termination of the
usufruct, the usufructuary shall be bound to give a further security,
and, in default, the provisions of article 355 shall apply.
Persons who are 
not bound to give 
security.
353.  The following persons, however, are not bound to give
security:
( a ) those whose usufruct derives from the law;
( b ) the vendor or the donor who has retained the usufruct
for himself;
( c ) the usufructuary of things which are, or are to be,
administered by others.
Time within which 
owner may 
demand security.
354.   The owner may demand the security, where required,
either before or within one year after the usufructuary shall have
commenced to exercise his rights over the things subject to the
usufruct; after the expiration of the said year, it shall not be lawful
for the owner to demand the security unless he proves that the
condition or the conduct of the usufructuary has so changed that the
fulfilment of his obligations is thereby endangered.
     CIVIL CODE            ġ CAP. 16.             87
Where 
usufructuary fails 
to give security.
355.   If the usufructuary fails to give security, where required,
within the time fixed by the court, the court shall, upon the demand
of the owner, appoint a competent person to administer the things
subject to the usufruct, in the interest of both the owner and the
usufructuary.
Administrator to 
sell movables, etc.
356.   The administrator shall sell the movables, investing at
interest the proceeds thereof; he shall likewise invest any other sum
of money included in the estate or which may be derived from the
return of capitals during the usufruct.
Administrator may 
deviate from rule 
laid down in art. 
356.
357. (1) The administrator may, with the consent of the owner
and the usufructuary, deviate from the rule laid down in the last
preceding article.
(2) The court may also, on good cause being shown, upon the
demand of the owner or the usufructuary, dispense with the sale of
the movables, or order that the moneys be invested otherwise than
as laid down in the last preceding article, provided this can be done
without prejudice to the interests of the defendant.
Power of court 
where usufructuary 
fails to find 
security.
358.  If the usufructuary declares on oath that he has been
unable to find security, the court may order that an urban tenement
and the necessary furniture for the habitation and the personal use
of himself and his family be delivered to him, without security,
subject to the obligation of restoring them at the termination of the
usufruct.
Duty of 
administrator to 
render account.
359. (1) The administrator shall yearly render an account of
his administration to the usufructuary, and pay the balance to him. 
(2) At the termination of the administration, the administrator
shall render an account both to the owner and to the usufructuary. 
Removal of 
administrator.
360.   The administrator may at any time be removed for just
cause, upon the demand either of the owner or of the usufructuary.
Usufructuary may 
take over 
administration.
361.   The usufructuary may at any time give security and take
over the administration of the property.
Fruits due to 
usufructuary.
362.   Delay in giving security shall in no case deprive the
usufructuary of the fruits to which he may be entitled: such fruits
are due to him from the time of the vesting of the right to the
usufruct.
Repairs of property 
subject to usufruct.
363.   The usufructuary is only liable for ordinary repairs.
Extraordinary repairs shall be at the charge of the owner, unless
they have been occasioned by the non-execution of the ordinary
repairs, including those that have been required at the
commencement of the usufruct, in which case the usufructuary
shall be liable therefor.
Extraordinary 
repairs.
364.   The repairs to walls and vaults, the replacing of beams,
and the entire renewal of the roof, staircase, or pavement of any
part of a building, are extraordinary repairs.
Reimbursement of 
expenses incurred 
by usufructuary for 
repairs which are at 
charge of owner. 
365. (1) No action shall lie in favour of the usufructuary to
compel the owner to carry out the repairs which are at his charge;
but, if the owner refuses to carry out such repairs, it shall be lawful
88               CAP.16. ħ                CIVIL CODE
for the usufructuary to demand that he be authorized by the court to
effect such repairs, and to recover from the owner, at the
termination of the usufruct, the amount of the expenses incurred,
without interest, provided the utility of the repairs subsists at the
time of the termination of the usufruct:
Provided the usufructuary shall be entitled to recover only the
value of such repairs as determined by means of a valuation, regard
being had to the time of the demand, if he fails to give to the owner
an account of the expenses incurred by him together with the
respective vouchers within six months from the day on which the
repairs shall have been completed.
(2) The account shall be considered as accepted by the owner,
if he shall not, within two months, declare his intention to contest
it.
Where owner 
consents to carry 
out extraordinary 
repairs.
366. (1) If the owner consents to carry out the extraordinary
repairs, he shall be entitled to recover from the usufructuary, during
the continuance of the usufruct, the interest on the amount of the
expenses which he shall prove to have incurred.
(2) The said interest shall run from the day on which the
account of such expenses shall have been approved by the
usufructuary, or by the court upon a writ of summons issued against
the usufructuary.
Where part of 
building falls down 
through age, etc.
367. (1) The provisions of the last two preceding articles shall
likewise apply in the case where a building or a part of a building
constituting an accessory necessary for the enjoyment of the
tenement subject to the usufruct, or an accessory part of the
building constituting the principal subject of the usufruct, falls
down through age or by a fortuitous event.
(2) For determining whether the part which has fallen off the
building which constitutes the principal subject of the usufruct, is
an accessory part, regard shall be had not only to the destination of
such part, but also to the expense required for reconstructing such
part as against the expense which would be required for the
reconstruction of the whole building.
Usufructuary 
cannot prevent 
owner from 
carrying out 
repairs.
368.   The usufructuary cannot prevent the owner from carrying
out, in the manner least inconvenient to the usufructuary, the
repairs and works referred to in the last three preceding articles.
Expenses to be 
borne by 
usufructuary, 
369. (1) The expense for the whitewashing of a building, or
the cleansing of cisterns or sinks, when ordered by the Police in the
cases provided for by law, shall be at the charge of the
usufructuary.
by owner. (2) The expense for the construction of cisterns or sinks, or for
communicating sinks with the main sewer or with some other
outlet, as well as the expense for the demolition of buildings which
are in a ruinous state, shall be borne by the owner; and if the
usufructuary is compelled to carry out such works, he shall have a
remedy against the owner.
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Usufructuary to 
pay ground-rent, 
etc.
370.   The usufructuary is bound to pay the ground-rent and all
other annual charges upon the tenement.
Usufructuary of 
particular 
tenements not to 
pay charges on 
such tenements.
371.   The usufructuary of one or more particular tenements is
not bound to pay the debts for which any of such tenements may be
hypothecated, nor is he bound to pay any annuity with which such
tenements stand charged; and if he is compelled to pay, he may
claim relief against the owner.
Usufructuary of 
estate to pay 
maintenance 
allowances, etc.
372. (1) The usufructuary of an entire estate, or of a portion of
an estate, is bound to pay, in proportion to his enjoyment, and
without any right of recovery, any maintenance allowances, any
perpetual or life annuity, and any interest on debts to which the
estate may be liable.
(2) Where any capital has to be paid, if the usufructuary is
willing to advance the amount, such amount shall be returned to
him by the owner, without any interest, at the end of the usufruct.
(3) If the usufructuary is not willing to make such advance, the
owner may effect the payment either with his own money, in which
case the usufructuary shall pay to him interest thereon during the
continuance of the usufruct, or by causing a portion of the property
subject to the usufruct to be sold, to the extent of the sum due.
Costs of lawsuits 
concerning 
usufruct, etc.
373. (1) The costs of lawsuits relating to the usufruct
exclusively shall be borne by the usufructuary.
(2) The costs of lawsuits relating to the ownership exclusively
are at the charge of the owner.
(3) The costs of lawsuits concerning both the usufruct and the
ownership shall be borne by the owner; but the usufructuary shall
pay to the owner the interest thereon during the usufruct.
Encroachment on 
property held in 
usufruct.
374.   The usufructuary is bound, under pain of damages, to
notify the owner, without delay, of any encroachment or other act
committed by a third party to the prejudice of the rights of the
owner.
Where subject of 
usufruct is not a 
herd.
375 .  Where the subject of the usufruct is one or more animals,
not forming a herd, and such animals perish without the fault of the
usufructuary, he shall only be bound to account to the owner for the
skins or their value.
Where subject of 
usufruct is a herd.
376 . (1) The same rule shall apply where the subject of the
usufruct is a herd, and the whole herd perishes without the fault of
the usufructuary.
(2) Where, however, the herd does not perish entirely, the
usufructuary shall be bound to replace the heads which have
perished, but not beyond the number of the animals born since the
commencement of the usufruct and existing in his possession and
of those born after the herd commenced to be deficient in its
original number.
Insurance of ship 
subject to usufruct.
377. (1) Where the subject of the usufruct is a ship and the
usufructuary has failed to insure her, he shall be liable for the loss
of the ship and for average.
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(2) If the ship was insured, the usufructuary is discharged, to
the extent of the insurance, by assigning to the owner his rights of
action against the insurers, the premium remaining payable by the
usufructuary.
§  III.   O F THE  M ANNER IN WHICH  U SUFRUCT  T ERMINATES
Termination of 
usufruct.
378.   Usufruct terminates - 
( a ) by the death of the usufructuary;
( b ) by the expiration of the time for which it was
constituted; 
( c ) by the merger or reunion in one and the same person of
the two capacities of usufructuary and owner;
( d ) by non-user of the right during thirty years;
( e ) by the total loss of the subject of the usufruct.
Termination of 
usufruct by 
wrongful use 
thereof.
379. (1) Usufruct may also terminate by reason of the
wrongful use which the usufructuary makes of his right, either by
causing injury to the tenements, or by suffering them to run into
ruin for want of ordinary repairs.
(2) In any such case the court may, according to the gravity of
the circumstances, instead of ordering the absolute termination of
the usufruct, either appoint an administrator, or order that the
property be returned to the owner, subject to the condition,
however, of paying annually to the usufructuary, or to those
claiming under him, a fixed sum during the continuance of the
usufruct.
(3) The usufructuary, as well as any of his creditors, may
prevent the termination of the usufruct, the appointment of an
administrator, or the return of the property as aforesaid, by offering
to carry out the necessary repairs, and by giving security for the
performance of this obligation within a time to be fixed by the
court, provided the offer be made and the security given before
judgment is delivered on the demand of the owner, or within fifteen
days from the day on which the judgment has become a  res
judicata.
Duration of 
usufruct granted to 
body-corporate,
380.   The duration of a usufruct constituted in favour of a body-
corporate, cannot exceed thirty years; and if the usufruct is granted
without any limitation of time, or for a time exceeding thirty years,
its duration shall be limited to thirty years.
or until a third 
party reaches a 
given age, 
381.   Where the usufruct is granted until a third party shall
attain a given age, it shall last for all that time, even if the third
party dies before attaining that age.
or in favour of two 
or more persons 
conjointly.
382.   Where the usufruct is constituted in favour of two or more
persons conjointly, in terms of articles 738 and 739, it shall only
terminate at the death of the person last surviving, and the portion
of any predeceased person shall by accretion vest in the persons
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surviving.
Sale of thing 
subject to usufruct.
383.   The sale of the thing subject to the usufruct shall not
operate so as to alter in any way the right of the usufructuary; and
he shall continue in the enjoyment of his usufruct, unless he shall
have waived his right thereto.
Creditors of 
usufructuary can 
have waiver of 
usufruct declared 
null.
384.   The creditors of the usufructuary may sue for a declaration
of nullity of any waiver of the usufruct which the usufructuary may
have made to their prejudice.
Where a part only 
of subject of 
usufruct perishes.
385.   Where only a part of the thing subject to the usufruct
perishes, the usufruct shall continue to be operative as to the
remainder.
Rights of 
usufructuary in 
respect of soil or 
materials of a 
building that falls 
down.
386. (1) Where the only subject of the usufruct is a building,
and such building falls down through age or is destroyed by a
fortuitous event, the usufructuary shall not be entitled to enjoy
either the soil or the materials.
(2) Where, however, the usufruct was constituted over a
tenement of which such building was only a part, the usufructuary
shall be entitled to enjoy the soil, and he may use the materials
either in the reconstruction of the fallen building or in the repair of
other parts of the tenement subject to the usufruct.
(3) In each of the aforesaid cases, if the building is not
destroyed, or does not fall down except in part, the usufructuary
shall retain the right to enjoy the soil and the materials.
Where subject of 
usufruct is a ship 
beyond repair.
387.  Where the subject of the usufruct is a ship, and the ship is
in such condition as to be beyond repair, the usufruct terminates.
Usufruct of annuity 
or debt not to 
terminate on 
repayment of 
capital.
388.   The usufruct of an annuity or of a debt does not terminate
on the repayment of the capital; the usufructuary may re-invest
such capital or, as the case may be, demand that it be re-invested to
his profit.
Sub-title II
O F  U SE AND  H ABITATION
How use and 
habitation are 
acquired and lost.
389.  The rights of use and habitation are acquired and lost in
the same manner as the right of usufruct.
Rights of use and 
habitation to be 
created by public 
deed.
390.   The rights of use and habitation may not be created by the
owner otherwise than by a public deed, and they shall not be
operative as against third parties before the deed is registered in the
Public Registry, upon the demand of any of the interested parties,
or of the notary before whom the deed was executed. The note for
the registration of the deed shall be drawn up as provided in sub-
article (2) of article 330.
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Where extent of 
right of use or 
habitation is not 
fixed in deed.
391.   Where the extent of the right of use or of habitation is not
fixed in the deed creating such right, the rules laid down in the
following articles shall apply.
Definition of 
“use”.
392. (1) Use is the real right of a person of making use of a
thing belonging to another, or of taking the fruits thereof, but only
to the extent of his own needs and those of his family.
(2) The right of use of a house is the same as the right of
habitation.
(3) The right of use of things which are consumed by use is
considered as usufruct.
Definition of 
“habitation”. 
393.   Habitation is the real right of a person to live with his
family and according to his condition in a house belonging to
another.
Definition of 
“family”.
394.   For the purposes of the last two preceding articles, the
word "family" shall also include the children born since the
commencement of the right of use or habitation, even though the
grantee was not married at the time of the commencement of such
right, as well as acknowledged illegitimate children, adopted
children and servants.
Inventory and 
security.
395. (1) The grantee of a right of use or habitation shall make
up an inventory and give security as provided in the case of
usufruct.
(2) The court may, according to circumstances, exempt the
grantee from giving security.
Grantee to act as 
bonus 
paterfamilias.
396.   The grantee of a right of use or habitation shall in the
enjoyment thereof act as a  bonus paterfamilias.
Liabilities of 
grantee.
397. (1) Where a person having the right of use of a tenement,
takes all its fruits, or, having the right of habitation, occupies the
whole house, he is bound to pay the ground-rent and all other
annual charges on the tenement, to defray the expenses of
cultivation, and to make the ordinary repairs in the same manner as
a usufructuary.
(2) Where, however, he takes only a part of the fruits, or
occupies only a part of the house, he contributes thereto in
proportion to what he enjoys.
Where fruits do not 
exceed quantity 
required by person 
having right of use.
398. (1) Where the ordinary quantity of the fruits of the
tenement does not exceed the quantity which is necessary for the
person having the use of it, such person may demand that the
tenement be delivered to him.
(2) Where, however, only a portion of the fruits is necessary
for such person, he shall only be entitled to demand that portion of
the fruits in kind; and in such case, the administration of the
tenement shall remain vested in the owner, and the obligation of
giving security and of making the inventory will not arise.
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Rights of use and 
habitation may not 
be assigned, etc.
399.   The rights of use and habitation may not be assigned or
leased, and are not subject to the debts of the grantee.
Title  IV
O F  P RAEDIAL  E ASEMENTS
G ENERAL  P ROVISIONS
Definition of 
“easement”.
400. (1) An easement is a right established for the advantage
of a tenement over another tenement belonging to another person,
for the purpose of making use of such other tenement or of
restraining the owner from the free use thereof.
(2) The tenement subjected to the easement is called the
servient tenement; and the tenement in favour of which the
easement is created is called the dominant tenement.
How easements are 
created.
401.   Easements are created either by law or by act of man.
Sub-title I
E ASEMENTS  C REATED BY  L AW
Easements created 
for purposes of 
public or private 
utility.
402. (1) Easements created by law for purposes of public
utility are established by special laws or regulations.
(2) Easements are also created by law for private utility; and
such are those established in the following provisions of this sub-
title.
§  I.   E ASEMENTS ARISING FROM THE  S ITUATION OF  P ROPERTY
Duties of owners 
of tenements.
403. (1) Tenements at a lower level are subject in regard to
tenements at a higher level to receive such waters and materials as
flow or fall naturally therefrom without the agency of man.
(2) It shall not be lawful for the owner of the lower tenement to
do anything which may prevent such flow or fall.
(3) Nor shall it be lawful for the owner of the higher tenement
to do anything whereby the easement of the lower tenement is
rendered more burdensome.
Springs of water.
of it as he pleases, saving any right which the owner of a lower
tenement may have acquired by title or by prescription.
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Water running 
through public 
road.
405. (1) The owner of the higher tenement may cause the
water which runs through the public road to be led into his own
tenement, in preference to the owner of the lower tenement.
(2) In the case of owners of tenements placed on the same
level, each of such owners may cause the water which runs on that
half of the road, which is contiguous to his tenement, to be led into
such tenement.
Where water is 
required for the use 
of man, etc.
406.   The provisions of the last preceding article shall not
apply in the case where one of the owners requires the water for the
use of man, or for watering animals or for watering trees which are
ordinarily watered; in any such case the right of preference over
others who require the water for other uses belongs - 
( a ) to the person who requires the water for the use of
man;
( b ) to the person who requires it for watering animals; 
( c ) to the person who requires it for watering trees.
§  II.   O F  W ALLS AND  D ITCHES WHICH SEPARATE 
N EIGHBOURING  T ENEMENTS
Party wall.  
Amended by:
LV. 1975.4.
407.  A wall which serves to separate two buildings or a
building from a tenement of a different nature must have a
thickness of not less than thirty-eight centimetres.
How to be built. 408.   A party-wall between two courtyards, gardens or fields,
may be built of loose stones, but must be -
Height. ( a ) three and one-half metres high, if it is between two
courtyards, or between two gardens in which there are
chiefly orange or lemon trees;
( b ) two metres and forty centimetres high, if it is between
two gardens in which there are chiefly trees other than
those mentioned above; and
( c ) one and one-half metres high, if it is between two
fields.
Presumption of 
ownership of 
party-wall.
409. (1) In the absence of a mark or other proof to the
contrary, a wall which serves to separate two buildings is presumed
to be common up to the top, and, where such buildings have not the
same height, up to one metre and eighty centimetres from the point
at which the difference in height begins.
(2) The part of the wall above one metre and eighty centimetres
from the height of the lower building, is presumed to belong to the
owner of the higher building.
(3) Where there is a building on one side, and a courtyard,
garden or field on the other side, the wall is presumed to belong
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entirely to the owner of the building.
Party-wall between 
courtyards, 
gardens or fields.
410. (1) A   dividing wall between courtyards, gardens, or
fields, shall also be presumed to be common, in the absence of a
mark or other proof to the contrary.
(2) Where the wall separates courtyards, gardens or fields,
placed the one at a higher level than the other, the part of the wall
which, having regard to the lower tenement, exceeds the height
respectively prescribed in article 408 is presumed to belong to the
owner of the higher tenement.
Repairs to common 
wall.
411. (1) The repairs to a common wall or its reconstruction
shall be at the charge of all those who have a right thereto in
proportion to the right of each.
(2) Nevertheless, every co-owner of a wall may relieve himself
of the obligation of contributing to the expense of the repairs to the
said wall or of its reconstruction by waiving his right of co-
ownership, provided the common wall does not support a building
belonging to him.
(3) Such waiver, where competent, shall not relieve the party
making it of his liability for such repairs or reconstruction as may
have been occasioned by him.
Where common 
wall supports 
building which 
owner wishes to 
demolish.
412.   Where a common wall supports a building which the
owner wishes to demolish, he may not release himself from his
liability for the repairs or reconstruction of the wall by waiving his
right of co-ownership, unless he carries out for the first time such
repairs and works as are necessary so as to avoid causing to the
neighbour any damage by the demolition of the building.
Right of support.
against the common wall and insert therein beams up to half the
thickness of such wall.
(2) He may also indent his own wall into the common wall.
Raising of 
common wall.
414.   Every co-owner may raise the height of a common wall,
but he shall be liable for the expenses necessary -
( a ) for raising the height of the wall;
( b ) for keeping in good repair the part raised above the
height of the common wall;
( c ) for carrying out such works as may be necessary for
the support of the additional weight resulting from the
raising of the wall, so that the stability of the wall will
not be impaired.
Where common 
wall is not in 
condition to stand 
additional height.
415.   Where the common wall is not in a condition to sustain the
additional height, the person desiring to raise its height must have
it entirely reconstructed at his expense, and the additional thickness
must be taken on his own side.
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Party raising 
common wall, 
liable for damage 
to neighbour.
416.   In each of the cases mentioned in the last two preceding
articles, the party raising the height of the wall is moreover bound
to make good to his neighbour any damage which the latter may
suffer in consequence of the raising of the wall or the
reconstruction.
Neighbour may 
acquire co-
ownership of 
additional height of 
common wall.
417.   The neighbour who has not contributed to the raising of
the height of a common wall may acquire co-ownership of the
additional height by paying one-half of the cost thereof and the
value of half the land used for the additional thickness, if any.
Owner may make 
common a wall 
contiguous to his 
tenement.
418. (1) Every owner may also make common, in whole or in
part, a wall contiguous to his tenement by reimbursing to the owner
of the wall one-half of its total value, or one-half of the value of
that portion which he desires to make common, and one-half of the
value of the land on which the wall is built, and by carrying out
such works as may be necessary to avoid causing damage to his
neighbour.
(2) The provisions of this article shall not apply in the case of
buildings destined for public use.
Works to or on 
common wall, or 
deposit of manure, 
etc., against 
common wall.
419.   It shall not be lawful for one of the neighbours -
( a ) to make, without the consent of the other neighbour
any cavity in the body of a common wall;
( b ) to cause any new work to be affixed to or to lean
against a common wall, without the consent of the
other neighbour, or, in case of his refusal, without
having first determined by means of experts the
necessary measures to be taken in order that the new
work shall not injuriously affect the rights of the other
neighbour;
( c ) to deposit manure or other corrosive or damp
substance in such a manner as to be in contact with the
common wall;
( d ) to heap earth or other matter against a common wall
without taking the necessary precautions in order to
prevent such heaps from causing, by pressure or
otherwise, damage to the other neighbour.
Repairs to walls 
separating 
courtyards, etc.
420.   Any person may compel his neighbour to contribute to the
construction or repair of walls separating courtyards, gardens, or
fields, up to the height specified in article 408, regard being had to
the nature and level of the tenement of the defendant.
Construction or 
repair of party-wall 
between two 
tenements having 
different level.
421.   Where a wall separates two tenements, one of which is at a
higher level than the other, the owner of the higher tenement shall
bear the whole expense of the construction and repair of the wall up
to the level of his own tenement: the portion of the wall from that
level up to the height specified in article 408 shall be constructed
and repaired at joint expense.
     CIVIL CODE            ġ CAP. 16.             97
Where neighbour 
is unwilling to 
contribute to 
expense of 
construction or 
repair to wall.
422.   Saving the provisions of article 418, where, in the cases
referred to in the last two preceding articles, a neighbour is
unwilling to contribute to the expense of construction or repair of
the wall, he may release himself therefrom by giving up his half of
the land on which the party-wall is to be built, and waiving his right
of co-ownership of such wall.
Where several 
storeys or parts of 
building belong to 
different owners.
423.   Where the several storeys or other parts of a building
belong to different owners, the contribution of each of the owners
to the expense of the repairs or reconstruction which may be
required shall be in proportion to the benefit which the respective
part of the building derives from such repairs or reconstruction.
Old easements in 
regard to new 
common wall.
424.   Where a common wall or a house is reconstructed, any
active or passive easement shall be maintained also with regard to
the new wall or house, provided such easement is not rendered
more burdensome, and such reconstruction is made before
prescription has been acquired.
Openings in party-
walls.
425.   It shall not be lawful for one of the neighbours without the
consent of the other to make in the party-wall any window or other
opening.
Owners of storeys 
may make 
balconies, etc., in 
external wall.
426.   When the storeys of a house belong to different owners,
each of such owners may, in his own storey, make, in the external
wall, a balcony, window, door or other opening, provided the
stability of such wall is not affected thereby.
Raising of party-
wall if building has 
stairs leading to 
roof.
427. (1) The person in whose building there are stairs leading
to the roof, is bound to raise at his own expense the party-wall to
the extent of one metre and eighty centimetres above the level of
the roof.
(2) The portion of the wall above the level of the roof must be
of the same thickness as the party-wall below such level.
(3) Where both neighbours have stairs leading to their
respective roofs, each of them may compel the other to contribute
half the expense necessary for raising the height of the party-wall
as aforesaid.
Neighbours to 
avoid causing 
damage to party-
wall.
428.   Each of the neighbours is bound to carry out in his own
tenement such works as may be necessary to prevent any damage
which may be caused to the party-wall by the cisterns or sinks
existing in his tenement or by any flow of water or filth.
Ditch between two 
tenements is 
presumed to be 
common to both 
owners.
429.   In the absence of any title or mark to the contrary, any
ditch between two tenements, if it is proved to be private property,
is presumed to be the common property of the owners of those
tenements.
Indications that 
ditch is not 
common.
430.   Where the earth excavated for the formation of the ditch,
or the refuse accumulated therein for a period of three years, is only
on one side of the ditch, this shall be an indication that the ditch is
not common, and the ditch is presumed to be the exclusive property
of the party on the side of whose tenement the earth or the
accumulated refuse is found.
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Where ditch serves 
for the drainage of 
the lands of one 
owner only.
431.   Where the ditch serves for the drainage of the lands of one
owner only, this shall be an indication that the ditch is not common.
Repair of common 
ditch.
432. A common ditch shall be kept in repair at joint expense: 
        Provided that it shall be lawful for any co-owner to relieve
himself of such obligation by waiving his right of co-ownership.
Trees existing on 
boundary-line 
between two 
tenements.
433.   The trees which are on the boundary-line between two
tenements shall, in the absence of proof to the contrary, be deemed
to be common; and each of the neighbours may demand that such
trees be uprooted or cut if he proves that the damage they may
cause to his tenement is greater than the benefit he himself may
derive therefrom.
§  III.   O F  D ISTANCES REQUIRED IN CERTAIN CASES
Construction of 
walls, etc. on 
boundary-line of 
tenements.
434.   Every person may construct any wall or building on the
boundary-line of his tenement, saving the right of the neighbour to
acquire co-ownership of the wall as provided in article 418.
Space to be left 
when not building 
on boundary-line.
435. (1) Even where the construction is not made on the
boundary-line, the neighbour may, if a distance of at least one and
one-half metres has not been left, demand co-ownership of the
wall, and may build up to, and against such wall, on paying, besides
the value of half the wall, the value of the ground which he would
thus occupy, unless the owner of the ground prefers to extend his
building, at the same time, up to the boundary-line.
(2) If the neighbour does not wish to avail himself of such
power, he must construct his wall or building in such a manner that
there shall be a distance of three metres from the wall or building of
the other party.
(3) The same rule shall be observed in any other case where the
construction of the other party is at a distance of less than three
metres from the boundary.
(4) The mere raising of the height of a house or wall already
existing is deemed to be a new construction.
Exception. 436.   The provisions of the last two preceding articles shall not
apply in the case of buildings destined for public use, or of walls
bordering on public squares or streets.
Planting of trees, 
etc. 
Amended by: 
II.1920.2,3.
437. (1) It shall not be lawful for any person to plant in his
own tenement tall-stemmed trees at a distance of less than two
metres and forty centimetres, or other trees at a distance of less
than one metre and twenty centimetres from the boundary between
his tenement and that of his neighbour.
(2) Vines, shrubs, hedges, and all other dwarfed trees not
exceeding the height of two metres and ten centimetres, may be
planted at a distance of not less than forty-five centimetres from the
     CIVIL CODE            ġ CAP. 16.             99
said boundary.
(3) The neighbour may, unless the period required for
prescription has elapsed, demand that trees planted at a lesser
distance, or which, notwithstanding the observance of the aforesaid
distance, are causing him damage, be uprooted at the expense of the
owner.
(4) The court, however, may grant to the owner of such trees
the option either to uproot them, or to cause ditches or other works
to be made at his expense sufficient to prevent all damage to the
tenement of his neighbour.
(5) The provisions of this article shall not apply in cases where
the adjoining tenements are separated by a wall, provided the
aforesaid trees, shrubs or plants are so kept as not to exceed the
height of the wall.
Branches of trees 
overhanging 
adjoining 
tenement.
438. (1) A   person over whose tenement the branches of the
neighbour’s trees extend, may compel him to cut such branches,
and may gather the fruits hanging from them.
(2) Moreover, if the roots extend into his tenement, he may cut
them off himself.
Digging of wells, 
etc.
439.   It shall not be lawful for any person to dig in his own
tenement, any well, cistern or sink, or to make any other excavation
for any purpose whatsoever at a distance of less than seventy-six
centimetres from the party-wall.
Damage 
consequent on 
excavations.
440. (1) Notwithstanding the observance of the distance
prescribed in the last preceding article, whosoever makes any
excavation, shall be bound to make good any damage caused by
such excavation to his neighbour’s building, provided such
building has been constructed according to the usages and the rules
of art prevailing at the time of its construction.
(2) Nevertheless, no liability for damages is incurred, if the
excavation is made at the distance which the court, upon the
demand of the party wishing to make the excavation, shall have
fixed, according to circumstances, or if such party has executed
such works as, according to circumstances, shall have been ordered
by the court so as to avoid causing any damage to the neighbour.
Distance of sink-
pipes or water-
pipes.
441. (1) Any sink-pipe or any pipe for water dripping from the
roofs, or for water raised by means of a pump or other mechanical
device, shall be at a distance of at least one metre from the
boundary, to be measured from the nearest point of the external
part of such pipe.
(2) The observance of such distance is not required if the pipes
used are such as do not allow any dampness to penetrate into the
wall, or if other means are used fit to prevent the passage of any
such dampness.
(3) Nevertheless, if, notwithstanding the observance of the
distance prescribed under sub-article (1) of this article, or the use
of such pipes or means as are mentioned in sub-article (2) of this
100               CAP.16. ħ                CIVIL CODE
article, damage is caused to the neighbour, the owner of the pipes
shall be bound to make, at his own expense, any other work that
may be necessary for preventing the continuance of the damage,
and, if necessary, even to remove the pipes to a greater distance.
Where cistern 
extends under 
tenement of 
neighbour.
442. (1) Where a cistern extends under the tenement of the
neighbour, such neighbour may bore a hole and make use of the
water, subject to his obligation to refund to the owner of the
tenement in which the excavation of the cistern was commenced
one-half of the expense incurred.
(2) Each of the two neighbours may demand that the part of the
cistern which exists under his tenement be separated from that
existing under the other tenement by means of a wall to be
constructed and, when necessary, repaired at joint expense.
(3) Where, however, the part of the cistern existing under the
tenement of one of the neighbours is considerably larger than the
part existing under the tenement of the other, the court may,
according to circumstances, in ordering the separation, direct the
former to refund to the latter a proportionate part of the sum which
he may have paid for the excavation of the cistern.
Distance of 
windows, etc., 
from party-wall.
443. (1) It shall not be lawful for the owner of any building to
open windows at a distance of less than seventy-six centimetres
from the party-wall.
(2) In the case of balconies or other similar projections, the
distance prescribed under sub-article (1) of this article shall be
measured from the external line of that side of the balcony or other
projection, which is nearer to the party-wall, to the internal line of
such wall.
Distance of ovens 
from party-wall.
444. (1) It shall not be lawful for any person to construct any
oven except at a distance of at least thirty centimetres from the
party-wall, and with a passage for air between the wall and the
oven.
(2) Kitchen-stoves shall be at a distance of at least fifteen
centimetres from the party-wall.
§   IV. O F  E AVESDROP
Construction of 
roofs.
445.   Every owner shall construct the roofs of his building in
such a manner that the rainwater shall not fall on the neighbouring
tenement.
§  V. O F  R IGHT OF  W AY AND OF  W ATERCOURSE
Access to and 
passage over 
tenements. 
446.   Every owner is bound to grant access to and a way over his
tenement, provided such access or way be necessary, for the
purpose of repairing a wall or other work belonging to his
neighbour or held in common.
     CIVIL CODE            ġ CAP. 16.             101
Tenement having 
no outlet to public 
road.
447. (1) Any owner whose tenement has no outlet to the public
road, may compel the owners of the neighbouring tenements to
allow him the necessary way, subject to the payment of an
indemnity proportionate to the damage which such way may cause.
(2) Such right of way shall be exercised over that part where it
will be least injurious to the person over whose tenement it is
allowed.
Tenement 
becoming enclosed 
on all sides.
448.   Where the tenement has become enclosed on all sides in
consequence of a sale, exchange, or partition, the vendors, the
parties to the exchange, or the co-partitioners are bound to grant a
foot-way, horse-way or cart-way, as the case may be, without any
indemnity.
Discontinuance of 
right of way.
449.   Where the right of way granted as aforesaid shall, in
consequence of the opening of a new road, or of the incorporation
of the tenement with another tenement contiguous to the public
road, cease to be necessary, the owner of the servient tenement may
demand the discontinuance of such right of way on restitution of
the indemnity received or the cessation of the annual payment
agreed upon.
Right of 
watercourse.
450. (1) Any person who cannot receive water into his own
tenement from fountains or other deposits of public water, except
through rural tenements belonging to other persons, may compel
the owners of such tenements to grant him, in such manner as shall
least injuriously affect them, the right of watercourse, subject to the
payment of an indemnity proportionate to the damage.
(2) It shall not be lawful for such person to compel the said
owners to allow him to make new channels, if they grant to him
watercourse by means of the existing channels; in which case the
indemnity shall be determined having regard to the value of such
channels, and the expense necessary for their first repair, and the
person who makes use of them shall remain bound to contribute to
the expense of their upkeep as provided in article 452.
Action for 
indemnity subject 
to prescription.
451.   The action for the payment of the indemnity under articles
447 and 450 is subject to prescription: and the right of way or of
watercourse may continue to be exercised, although the action for
the payment of the indemnity can no longer be maintained.
Contribution 
towards necessary 
repairs of channels.
452.   Any person who is entitled to make use of the channels
made for the passage of water is bound to contribute to the
expenses for their necessary repairs, saving his right to relief,
where competent, against the persons through whose fault the
channels have been damaged.
Where enjoyment 
of way or of 
watercourse can be 
had in or over two 
or more tenements.
453. (1) Where the enjoyment of the way or the watercourse
can be had in or over two or more tenements belonging to different
owners, the easement shall be imposed on that tenement to the
owner of which it is least injurious.
(2) Where the easement will not affect one tenement more
injuriously than another, the easement shall be imposed on that
tenement where it shall be more convenient to the person
demanding it, and it shall not be lawful for such person to choose
102               CAP.16. ħ                CIVIL CODE
another tenement without the consent of its owner.
Sub-title II
O F  E ASEMENTS CREATED BY THE  A CT OF  M AN
§  I. O F THE  D IFFERENT  K INDS   OF  E ASEMENTS WHICH CAN BE 
CREATED BY THE  A CT OF  M AN, AND OF THE MANNER IN WHICH 
SUCH  E ASEMENTS ARE  C REATED
Creation of 
easements.
454.   It shall be lawful for owners to establish, in accordance
with article 400, any easement which is in no way contrary to
public policy.
Continuous or 
discontinuous, 
apparent or non-
apparent 
easements.
455. (1) Easements are continuous or discontinuous, apparent
or non-apparent.
(2) Continuous easements are those the enjoyment of which is
or may be continuous without the necessity of any actual
interference by man: such as the easement of watercourse,
eavesdrop, prospect and others of a like nature.
(3) Discontinuous easements are those the enjoyment of which
can only be had by the actual interference of man: such as the
easement of right of way, of drawing water, and others of a like
nature.
(4) Apparent easements are those the existence of which
appears from visible signs: such as a door, a window, or an
artificial watercourse.
(5) Non-apparent easements are those which have no visible
signs of their existence: such as the prohibition to build on a certain
land or to build above a specified height.
Affirmative or 
negative 
easements.
456. (1) Easements are, moreover, affirmative or negative.
(2) Affirmative easements are those which consist in the right
of making use of the servient tenement.
(3) Negative easements are those which consist in the right of
restraining the owner of the servient tenement from the free use
thereof.
Creation of 
continuous and 
apparent 
easements.
457.   Continuous and apparent easements may be created - 
( a ) by virtue of a title;
( b ) by prescription, if the tenement over which such
easements are exercised may be acquired by
prescription;
( c ) by the disposition of the owner of two tenements.
     CIVIL CODE            ġ CAP. 16.             103
Title to result from 
public deed.  
Registration 
thereof.
458.   The title creating an easement is null unless it results from
a public deed; and where the easement is created by a deed  inter
vivos ,   the easement shall not be operative as regards third parties
before the deed is registered in the Public Registry as provided in
article 330, on the demand of any of the parties interested, or of the
notary receiving the deed.
Creation of 
easements over 
tenements subject 
to usufruct.
459. (1) The owner of a tenement may, without the consent of
the usufructuary, establish any easement over the tenement,
provided the right of usufruct is not in any way prejudiced thereby.
(2) With the consent of the usufructuary, the owner may
establish even an easement diminishing the right of usufruct.
Easement granted 
by co-owner.
460. (1) An easement granted by one of the co-owners of an
undivided tenement, shall not be deemed to be established until the
other co-owners shall have also, jointly or separately, granted it.
(2) Any grant made under any title whatsoever by one of the
co-owners remains in abeyance until a like grant is made by all the
others.
(3) Nevertheless, any grant made by a co-owner, independently
of the other co-owners, shall operate so as to restrain not only the
grantor but also his successors, even if singular, or any person
claiming under him, from obstructing the exercise of the right so
granted.
Where co-owner 
granting easement 
becomes sole 
owner of tenement.
461.   An easement granted by one of the co-owners over an
undivided tenement, shall be deemed to be fully established as soon
as the grantor becomes the sole owner of the tenement.
Where easement is 
acquired by 
prescription.
462. (1) In order to acquire an easement by prescription,
possession for a period of not less than thirty years is necessary.
(2) If the servient tenement is subject to entail, or belongs to a
church or any other pious institution, the prescriptive period is
forty years.
(3) In the cases referred to in this article, the person pleading
prescription is not bound to produce a title, and no plea on the
ground of bad faith can be set up against him.
Prescription with 
regard to 
affirmative or 
negative 
easements.
463. (1) In the case of affirmative easements, possession to
found prescription commences from the day on which the owner of
the dominant tenement has commenced to exercise the right of
easement.
(2) In the case of negative easements, possession commences
from the day on which the owner of the dominant tenement, shall
have, by means of a judicial letter, protest, or other judicial act,
restrained the owner of the servient tenement from the free use
thereof.
Where easement is 
in respect of water 
flowing from 
neighbouring 
tenement.
464.   Where the easement is in respect of a flow of water issuing
from a tenement belonging to others, or from a spring existing in
such tenement, and consists in the right of preventing the diversion
of the water, any visible and permanent works which the owner of
the dominant tenement may have made in the servient tenement in
104               CAP.16. ħ                CIVIL CODE
order to collect the water, or to facilitate its flow in his own
tenement, shall be equivalent to the restraint mentioned in the last
preceding article.
Where 
emphyteuta, etc., 
suffers exercise of 
easement. 
465.   Any easement which the emphyteuta, usufructuary or
tenant suffers to be exercised over the tenement, without any pre-
existing title, shall not prejudice the  dominus  or   the owner of such
tenement, notwithstanding any length of time during which the
easement may have been exercised.
Owner of tenement 
subject to easement 
of receiving rain-
water falling on 
neighbouring 
building, may 
cause such 
easement to cease.
466.   The owner of a tenement subject, in virtue of an easement
constituted without title, to receive the rain-water falling on the
roofs of a neighbouring building, may, at any time, on payment of
an indemnity, compel the owner of such building to cause such
easement to cease.
Owner of building 
subject to easement 
of allowing rain-
water falling on 
such building to 
flow to 
neighbouring 
tenement, may 
cause such 
easement to cease.
467.   The owner of a building in which there is no cistern, who,
in virtue of an easement constituted without title, is obliged to
allow the rain-water falling on the roofs of that building to flow to
a neighbouring tenement, may, at any time, on payment of an
indemnity, cause such easement to cease if he has constructed in
such building a cistern for the collection of such rain-water.
When easement is 
said to be created 
by “the disposition 
of the owner of two 
tenements”.
468.   An easement is created by "the disposition of the owner of
two tenements" if it is proved that the two tenements, now divided,
belonged to the same owner, and it was such owner who placed or
left things in the state which gives rise to the easement.
Easements that 
cannot be acquired 
by prescription.
469. (1) Continuous non-apparent easements, and discontin-
uous easements, whether apparent or non-apparent, can only be
created by a title; they cannot be created by prescription or by the
disposition of the owner of two tenements.
(2) Nevertheless, the easement of right of way for the use of a
tenement may be acquired by the prescription of thirty years, if
such tenement has no other outlet to the public road; and any other
easement which, on the 11th February, 1870, was already acquired
under previous laws, may not be impeached.
§ II. O F THE MANNER IN WHICH  E ASEMENTS ARE  E XERCISED
Principal easement 
to include 
secondary 
easements.
470.   The creation of an easement shall be deemed to include the
granting of all that is necessary for the enjoyment of such easement
with the least possible damage to the servient tenement. Thus the
right of drawing water carries with it the right of way, and the right
to cause water to be led over another person’s tenement includes
the right of way along the sides of the channel in order to watch
over the flow of the water, and to clean the channel and make the
necessary repairs.
     CIVIL CODE            ġ CAP. 16.             105
Right to carry out 
works necessary 
for enjoyment and 
preservation of 
easement.
471.   Any person to whom an easement is competent may carry
out at his expense and in such manner as to cause as little
inconvenience as possible to the owner of the servient tenement,
the works that are necessary for the exercise and preservation of the
easement.
When owner of 
servient tenement 
is bound to carry 
out repairs.
472. Where the owner of the servient tenement is bound, in the
terms of the title, to bear the expense necessary for the exercise or
preservation of the easement, such obligation shall remain attached
to that tenement, even though it passes into other hands:
Provided that the possessor of such tenement may release himself
from such obligation by abandoning, in favour of the owner of the
dominant tenement, that part of the servient tenement over which
the easement is exercised.
Where dominant 
tenement is 
divided.
473.   If a severance of the dominant tenement takes place, the
easement which attached to the tenement will continue to attach to
the several portions, without, however, increasing the burden on
the servient tenement. Thus, where the easement is that of right of
way, the owners of all the portions of the tenement so divided shall
make use of the same path.
Owner of servient 
tenement cannot do 
anything injurious 
to easement.
474. (1) The owner of the servient tenement cannot do
anything which tends to diminish the exercise of the easement or to
make such exercise more inconvenient. He may not alter the
condition of the tenement, nor may he assign for the exercise of the
easement any part of the tenement other than that over which it was
originally established.
(2) Nevertheless, if the exercise of the easement in or over the
part originally assigned has become more burdensome to the owner
of the servient tenement, or if such owner is thereby prevented
from carrying out works, repairs, or improvements in his tenement,
he may offer to the owner of the dominant tenement a part equally
convenient for the exercise of the easement, and the latter may not
refuse it.
(3) The part of the tenement assigned for the exercise of the
easement may likewise be changed upon the demand of the owner
of the dominant tenement, if he proves that such change will be of
considerable advantage to him, and will cause no damage
whatsoever to the servient tenement.
Owner of dominant 
tenement may not 
render easement 
more burdensome.
475.   Any person having a right of easement shall exercise such
right in the terms of his title, and it shall not be lawful for such
person to make either in the servient or in the dominant tenement,
any alteration which may increase the burden on the servient
tenement.
Doubt as to extent 
of easement.
476.   In case of doubt as to the extent of an easement, its
exercise shall be restricted to what is necessary, having regard to
the destination of the dominant tenement at the time the easement
was created and to the convenient use of such tenement, with the
least damage to the servient tenement.
106               CAP.16. ħ                CIVIL CODE
Duty of person 
granting water 
from a spring or 
channel.
477.   In the absence of an agreement, the owner or other person
making a grant of water from a spring or a channel is bound,
towards those who, under such grant, are entitled to make use of
such water, to carry out the works required to lead the water from
its source to the place from which the water is to be taken.
Owner of tenement 
subject to easement 
in respect of flow 
of water may freely 
use such water.
478.   The easement in respect of a flow of water, does not
deprive the owner of the servient tenement of his right of freely
using such water to his advantage.
§  III.   O F THE MANNER IN WHICH  E ASEMENTS ARE 
E XTINGUISHED
Easements are 
extinguished when 
they can no longer 
be exercised,
479. (1) An easement is extinguished when the things subject
thereto are in such a condition that it can no longer be exercised.
(2) Nevertheless, the easement will revive if the things are
restored in such a manner that it can be again exercised, unless a
period of time sufficient to raise a presumption of the
extinguishment of the easement under article 481 shall have
elapsed.
by merger or unity 
of possession,
480. (1) An easement is extinguished where the dominant and
the servient tenements become united in the ownership of one
person.
(2) Where, however, a visible sign of an easement exists, and
the owner disposes of one of the said tenements without there being
in the contract any declaration as to the easement, such easement
shall continue to be operative, actively or passively, in favour of, or
over, the tenement so alienated.
by non-user. 
Amended by:
L.N. 148 of 1975.
481. (1) An easement is extinguished by non-user for the
period of forty years, in the case of property belonging to the
Government of Malta or to a church or other pious institution, and
of thirty years, in the case of any other property.
(2)  The provisions of this article shall not apply where the
non-user was due to the conditions referred to in article 479
provided the owner of the dominant tenement could not, according
to law, cause such conditions to cease.
Running of periods 
of non-user.
482.   The periods of non-user referred to in the last preceding
article, shall begin to run, according to the different kinds of
easements, either from the date of the last exercise thereof, if the
easement is discontinuous, or from the date of the first act done in
contravention thereof, if the easement is continuous.
Prescription in 
favour of third 
party in 
possession.
483.  In regard to a third party in possession of the servient
tenement, the easement shall be extinguished by the lapse of the
time required for the prescription of the ownership of the tenement
itself according to the provisions relating to prescription under
Title XXV of Part II of Book Second of this Code.
Prescription as to 
manner of use of 
easement.
484.  The manner of enjoying an easement may be prescribed as
the easement itself.
     CIVIL CODE            ġ CAP. 16.             107
Interruption of 
prescription by a 
co-owner.
485 .  Where the dominant tenement belongs to two or more
persons in common, the use of the easement made by any one of the
co-owners shall operate so as to bar prescription with regard to all
the co-owners.
Suspension or 
interruption of 
prescription with 
regard to a co-
owner.
486. (1) Where among the co-owners there is one against
whom prescription could not run, such fact shall operate so as to
preserve the right of all the others.
(2) Any act which interrupts prescription with regard to one of
the co-owners shall benefit also the others.
Cessation of 
easement on 
partition.
487.  Where two buildings which belonged to one owner, are
about to be divided, it shall be competent to each of the co-
partitioners to demand, before proceeding to the partition, the
cessation of any easement between the two tenements, provided
this can be done without any serious prejudice.
Easements 
acquired in favour 
of dotal or 
emphyteutical 
tenements.
488. (1) Any easement acquired by the husband in favour of a
dotal tenement, or by an emphyteuta in favour of the emphyteutical
tenement, shall not be extinguished on the dissolution of the
marriage or on the termination of the emphyteusis.
(2) Easements, however, imposed over the said tenements by
the said persons shall be extinguished.
Title  V
O F  C OMMUNITY OF  P ROPERTY
Sub-title I
O F THE  N ATURE OF THE  C OMMUNITY OF  P ROPERTY, AND OF 
THE  R IGHTS OF THE  C O-OWNERS DURING THE  C OMMUNITY
Definition of 
community of 
property.
489. (1) Community of property exists where the ownership of
one and the same thing, or of one and the same right, is vested  pro
indiviso  in two or more persons.
(2) In the absence of any special agreement or provisions, the
community of property shall be governed by the following rules.
Share of co-
owners.
490. (1) The shares of the co-owners shall, unless the contrary
is proved, be presumed to be equal.
(2) Every co-owner shall participate in the advantages and
burdens of the community in proportion to his share.
Right of co-owner 
to make use of 
common property.
491.   Each of the co-owners is entitled to make use of the
common property, provided -
( a ) that the use be made according to the destination of the
property as established by usage;
( b ) that it be not made against the interest of the
community, or in such a manner as to prevent the other
108               CAP.16. ħ                CIVIL CODE
co-owners from making use of the common property
according to their rights.
Contribution 
towards expenses.
492.   Each of the co-owners may compel the others to share
with him the expense necessary for the preservation of the common
property, saving the right of any of such other co-owners to release
himself from his liability therefor by abandoning his right of co-
ownership.
No alterations to be 
made without 
consent of co-
owners.
493.   It shall not be lawful for any co-owner to effect any
alteration in the common property without the consent of the other
co-owners, even though he claims that such alteration is beneficial
to all.
Power of court to 
appoint 
administrator of 
common property.
494. (1) Where the co-owners fail to agree, the court shall give
the necessary directions as to the management and better enjoyment
of the common property, and may appoint an administrator, even
from among the co-owners themselves.
(2) The court shall give effect to the opinion of the majority,
regard being had to the total number of the co-owners, unless the
dissentient co-owners show they will be prejudiced thereby.
Each co-owner has 
full ownership of 
his share.
495. (1) Each co-owner has the full ownership of his share and
of the profits or fruits thereof.
(2) He may freely alienate, assign, or hypothecate such share,
and may also, subject to the provisions of article 912, substitute for
himself another person in the enjoyment thereof, unless personal
rights are concerned:
Provided that the effect of any alienation or hypothecation shall
be restricted to that portion which may come to the co-owner on a
partition.
Sub-title II
P ARTITION OF  C OMMON  P ROPERTY
Each co-owner 
may demand 
partition of 
common property.
496. (1) No person can be compelled to remain in the
community of property with others, and each of the co-owners may,
at any time, notwithstanding any agreement to the contrary,
demand a partition, provided such partition has not been prohibited
or suspended by a will under the provisions of article 906.
(2) Nevertheless, an agreement to the effect that property shall
continue to be held in common for a fixed period not exceeding
five years is valid; and any agreement for a longer period, is null in
so far as it exceeds five years.
(3) Any such agreement may be renewed.
Power of court to 
order dissolution of 
community 
notwithstanding 
prohibition of 
testator, etc.
497. (1) Notwithstanding the prohibition or agreement
referred to in the last preceding article, it shall be lawful for the
court, if serious and urgent reasons so require, to order the
dissolution of the community of property, and any waiver of the
right to demand a partition in similar cases is null.
     CIVIL CODE            ġ CAP. 16.             109
(2) Where any of the co-owners has, through his fault, given
cause to the existence of the reasons referred to in sub-article (1) of
this article, the court may, according to circumstances, in ordering
the dissolution, condemn such co-owner in all damages.
Partition may be 
demanded even if 
co-owner enjoyed 
separately a 
portion of the 
property. 
498.   Partition may be demanded even though one of the co-
owners may have enjoyed separately a portion of the common
property, unless there has been a partition or a possession sufficient
to give rise to prescription.
Partition of 
immovable 
property to be 
made by public 
deed.
499. (1) A partition of immovable property is null unless it is
made by a public deed.
(2) As to the effect of any such partition in regard to third
parties, and as to the registration of the deed of partition, the
provisions of article 330 shall apply.
Manner and form 
of partition.
500. (1) Subject to the provisions of the last preceding article,
where all the co-owners are present and capable of alienating
property, the partition may be made in any manner and form they
may deem convenient.
(2) In the absence of an agreement to the contrary, the
following rules shall be observed, both in the partition of the bulk
of the property as well as in any sub-division which may be
necessary.
Valuation of 
property and 
making up of 
shares. 
Cap. 12.
501. (1) The property shall be appraised by experts chosen by
the parties, or appointed by the court as provided in the Code of
Organization and Civil Procedure.
(2) The experts shall state in their report, whether the property
can be conveniently divided without being injuriously affected,
and, in case the property can be so divided, the experts shall in the
same report determine each of the portions which may be made up
and the value thereof, regard being had, as far as it is practicable
without considerable damage, to the provisions contained in the
next following three articles.
Right of co-owner 
to have his share in 
kind.
502.   Each of the co-owners may claim his share of the property
in kind.
Right of co-owner 
possessing 
immovables 
adjacent to those in 
community.
503.   A   co-owner possessing property immovable by its nature
adjacent to any of the immovables in community about to be
divided, may demand that such immovables be assigned to him
upon a valuation, provided there be other immovables in
community out of which an approximately equal portion may be
assigned to each of the other co-partitioners.
Dismemberment of 
tenements and 
creation of 
easements to be 
avoided.
504.   In forming and making up the shares, the dismemberment
of tenements or the creation of easements shall be avoided; and it
shall be sought to include in each share the same quantity of
movables, immovables, rights or claims of the same nature and
value.
110               CAP.16. ħ                CIVIL CODE
Payment of a sum 
of money in case of 
inequality of 
shares.
505.   Any inequality of the shares in kind, where it cannot be
conveniently avoided, shall be set off by the payment of a sum of
money equal to the difference between the larger and the smaller
share.
Rent-charge in lieu 
of sum of money.
Amended by: 
XIII.1983.5.
506. (1) It shall be lawful for the court, according to
circumstances, to order, in lieu of the payment of the sum of money
mentioned in the last preceding article, the imposition of a rent-
charge on the larger share in favour of the smaller share, secured by
the hypothecation of one or more of the immovables included in
such larger share.
(2) For the purposes of sub-article (1) of this article, the
experts shall, unless exempted by the co-partitioners themselves,
establish in their report the amount of such rent-charge as may be
required for owelty of partition.
(3) The provisions of this article shall not apply unless the
inequality exceeds the sum of fifty liri and is greater than the value
of one-fourth part of the larger share.
Other cases where 
rent-charge may be 
imposed.
507.   The provisions of the last preceding article shall also
apply where the immovables held in community cannot be divided
in such a manner as to include a portion thereof in each share, and,
in consequence, one of the shares will consist entirely of money or
other movables; in any such case it shall be lawful for the court,
according to circumstances, to order that the share which contains
no immovables be made up of a rent-charge on the immovables
included in the other shares.
Limitation of 
amount of rent-
charge.
508.   Nevertheless, the rent-charge imposed on any immovable
shall in no case be greater than the fifth part of the estimated annual
rental value of such immovable on lease.
Formation of 
shares.
509.   Where the experts, chosen or appointed to make the
valuation of the property, are not competent to make up the shares,
such shares shall be made up by one of the co-partitioners or by any
other person, if the choice is agreed upon by all, and if the party so
chosen accepts to act. Otherwise the shares shall be made up by a
person to be appointed by the court.
Drawing of lots. 510. (1) The shares shall be drawn by lot.
(2) Where, however, the shares of the co-partitioners are not
equal, the court shall determine whether the shares are to be drawn
by lot, or whether the partition is to be carried out by assignment in
whole or in part.
When partition is 
to be made with the 
assistance of the 
judge or 
magistrate.
511. (1) Where any of the co-owners is subject to tutorship or
curatorship, or is an absentee represented by a curator appointed by
the court, the partition is null unless it is made with the assistance
of the judge or magistrate of the court of voluntary jurisdiction.
(2) The judge or magistrate shall countersign the draft deed.
(3) A partition made with the assistance of such judge or
magistrate cannot be impeached, even by the persons mentioned in
sub-article (1) of this article, on the ground of non-compliance with
the rules laid down in the foregoing articles.
     CIVIL CODE            ġ CAP. 16.             111
Delivery of 
documents relating 
to the subjects of 
the partition.
512. (1) Each of the co-partitioners shall, on completion of the
partition, be put in possession of the documents relating to the
things allotted to him, if such documents exist among the things
held in community.
(2) The documents relating to a thing which has been divided
shall be kept by the party having the greatest portion thereof,
subject to his obligation to show such documents, whenever
requested, to such of the co-partitioners as may be interested
therein.
(3) The documents relating generally to all the property
formerly held in community shall be delivered to the party chosen
by all the co-partitioners, or, failing their agreement, by the court,
as a depositary thereof, subject to his obligation to show such
documents, whenever requested, to any of the co-partitioners.
Effects of partition.
articles 947 to 952 inclusive of this Code relating to co-heirs, shall
be applicable generally to co-partitioners.
Supplement in 
money and 
supplementary 
partition.  
Substituted by: 
LVIII.1975.3.
514. (1) Where in a partition, or in any other act whereby the
community of property, whether movable or immovable, is
terminated, even though such act be designated as a sale, an
exchange or a compromise, or by any other name, the fair value of
the property allotted or assigned to one of the co-partitioners is,
having regard to the time of such partition or other act, less than
three-fourths of the fair value of the share to which such co-
partitioner was entitled, such co-partitioner shall be entitled to
demand from the other co-partitioner a supplement in money.
(2) No action for a supplement under sub-article (1) of this
article may be maintained where difficulties arisen between the co-
partitioners have been settled by a compromise, even if no suit had
been commenced in relation thereto; nor may such action be
maintained in the case of a sale of the right of co-ownership made
without fraud to one of the co-owners at his risk and peril by the
other co-owners or any of them.
(3) The action for demanding a supplement in money under
sub-article (1) of this article shall be barred by the lapse of two
years from the date of the partition or other act terminating the
community, and the provisions of sub-article (2) of article 1407
shall apply in respect of the running of such period of limitation.
(4) The mere omission from a partition of a thing held in
community shall only give rise to a supplementary partition.
Sub-title III
O F  S ALE BY  L ICITATION
Sale by licitation
conveniently and without being injuriously affected, and
112               CAP.16. ħ                CIVIL CODE
compensation cannot be made with other common property of a
different nature but of equal value, it shall be sold by licitation for
the purpose of distributing the proceeds thereof.
(2) The same rule shall apply if, in a partition of things in
community, there are some which no one of the co-partitioners is
able or willing to take.
may be demanded 
by any of the co-
owners.
516.   Any of the co-owners, whatever his share of the property,
may demand the sale by licitation, where competent.
Strangers may be 
invited to bid.
517.   It shall be lawful for each of the co-owners to demand that
strangers be invited by means of an advertisement to bid at the sale
by licitation, such advertisement being published in one or more
newspapers, at least six days before that fixed for the sale.
No formalities 
required where 
licitation takes 
place with the 
consent of all co-
owners,
518. (1) A sale by licitation which takes place with the consent
of all the co-owners, is not subject to any formality, and may be
made by means of any person and in whatsoever manner the co-
owners may agree upon; but in any such case there is no sale until
the highest bid has been accepted and, if the licitation is in respect
of immovable property, until a contract is made by means of a
public deed.
(2) The same rule shall apply where, although the sale by
licitation has been ordered by a judgment, the parties agree to carry
it out in a manner other than that established for judicial sales by
auction.
even, in certain 
cases where one of 
the co-owners is 
subject to 
tutorship.
Amended by: 
XIII.1983.5.
519.   The provisions of the last preceding article shall apply
even where any of the co-owners is subject to tutorship or
curatorship, or is an absentee represented by a curator appointed by
the court, provided the sale does not relate to immovable property,
or, if the sale relates to movable property, the value thereof does
not exceed thirty liri.
Licitation of 
immovable 
property, etc., 
where any of the 
co-owners is 
subject to 
tutorship, etc. 
Amended by: 
XIII.1983.5
520.   Where the sale by licitation relates to immovable property,
or to movable property of a value exceeding the sum of thirty liri,
and any of the co-owners is subject to tutorship or curatorship or is
an absentee represented by a curator appointed by the court, such
sale shall be ineffectual if it is not made under the authority of the
court of voluntary or contentious jurisdiction, as the case may be.
Licitation under 
authority of court, 
to be carried out as 
a judicial sale.
521. (1) Where under the provisions of the last preceding
article the sale by licitation takes place under the authority of the
court, it shall be carried out according to the rules laid down for
judicial sales by auction, in so far as such rules are applicable,
unless the court deems it more beneficial for the parties interested
that it should be carried out otherwise.
(2) In all cases, strangers shall be invited to bid.
(3) The adjudication made by the registrar shall be equivalent
to the deed of sale, even if the sale relates to immovable property.
     CIVIL CODE            ġ CAP. 16.             113
Applicability of 
certain provisions 
relating to sale of 
immovables.
522.   In case of sale of immovables by licitation, the provisions
relating generally to the sale of immovables shall apply with regard
to the registration of the contract or of the act of adjudication, in
the interest of third parties.
Licitation of 
common property 
subject to entail.
Sec.1 of Ordinance 
VI of 1895, 
incorporated.
523. * The provisions of articles 515, 516 and 517 shall also
apply to common property which is subject to any entail, in whole
or in part:
Provided that the sale by.licitation shall not be operative unless it
is made under the authority of the court of voluntary or contentious
jurisdiction, as the case may be, and in any such case the provisions
of the last two preceding articles shall apply.
Title  VI
O F  P OSSESSION
Sub-title  I
O F THE  N ATURE OF  P OSSESSION
Definition of 
possession.
524. (1) Possession is the detention of a corporeal thing or the
enjoyment of a right, the ownership of which may be acquired, and
which a person holds or exercises as his own.
(2) A person may possess by means of another who holds the
thing or exercises the right in the name of such person.
(3) A person who has the detention or custody of a thing but in
the name of another person, is called a holder.
A person is pre-
sumed to possess 
on his own behalf.
525. (1) A person is in all cases presumed to possess in his
own behalf, and by virtue of a right of ownership, unless it is
proved that he has commenced his possession in the name of
another person.
(2) Where a person has commenced his possession in the name
of another person, he shall be presumed always to possess upon the
same title unless the contrary be proved.
Facultative acts, 
etc., cannot found 
possession.
526.  Acts which are merely facultative or of mere sufferance
cannot found the acquisition of possession.
Violent or 
clandestine acts.
527. (1) In like manner, acts of violence or clandestine acts
cannot found the acquisition of possession.
(2) Nevertheless, possession may commence when the violence
or clandestinity ceases.
*  Se e art. 2 of the Investment of Certain Moneys Ordinance (Cap. 26.) 
114               CAP.16. ħ                CIVIL CODE
When intermediate 
possession may be 
presumed.
528.  Any person actually in possession who proves that he
formerly possessed shall, in the absence of proof to the contrary, be
presumed to have continued to possess during the intervening
period.
Actual possession 
without title does 
not raise 
presumption of 
former possession.
529.  Actual possession shall not operate so as to raise a
presumption of former possession unless the possessor has a title;
in which case, in the absence of proof to the contrary, he shall be
presumed to have possessed since the date of the title.
Possession by 
universal or 
singular successor.
530. (1) Possession continues as of right in the person of a
successor by universal title.
(2) A successor by a singular title, whether gratuitous or
onerous, may conjoin his own possession with that of his
predecessor in order to claim and enjoy the effects thereof.
Possessor in good 
faith.
531. (1) A person who, on probable grounds, believes that the
thing he possesses is his own, is a possessor in good faith.
Possessor in bad 
faith.
(2) A person who knows or who ought from circumstances to
presume that the thing possessed by him belongs to others, is a
possessor in bad faith.
Good faith to be 
presumed.
532.   Good faith is presumed, and the party alleging bad faith is
bound to prove it.
Rules to be 
observed with 
regard to rights and 
obligations arising 
from possession.
533.  Save as otherwise provided in this Code, the provisions of
the following articles of this title shall be observed with regard to
the rights and obligations arising from possession.
Sub-title II
O F THE  R IGHTS   OF THE  P OSSESSOR IN CASE OF  M OLESTATION
Action to secure 
possessor in his 
rights in case of 
molestation.
534.   Where any person, being in possession, of whatever kind,
of an immovable thing, or of a  universitas  of movables, is molested
in such possession, he may, within one year from the molestation,
demand that his possession be retained, provided he shall not have
usurped such possession from the defendant by violence or
clandestinely nor obtained it from him precariously.
Action for 
restoration of 
possession in case 
of spoliation. 
Cap. 12.
535. (1) Where any person is by violence or clandestinely
despoiled of the possession, of whatever kind, or of the detention of
a movable or an immovable thing, he may, within two months from
the spoliation, bring an action against the author thereof demanding
that he be reinstated in his possession or retention, as provided in
article 791 of the Code of Organization and Civil Procedure.
(2) Such reinstatement shall be ordered by the court even
though the defendant be the owner of the thing of which the
plaintiff has been despoiled.
     CIVIL CODE            ġ CAP. 16.             115
Restoration of 
possession does 
not bar other 
possessory actions.
536.  The reinstatement in the case provided for in the last
preceding article shall not operate so as to bar the exercise of any
other possessory action competent to any possessor.
Issues as to 
possession in 
matters concerning 
easements.
537.  In questions of possession in matters concerning
easements, the rights and obligations of the dominant and the
servient owners and of any other party interested shall be
determined by the mode of enjoyment during the preceding year,
or, where the easement is exercised at intervals of more than one
year, by the last user thereof.
Action to restrain 
continuation of 
new work where 
damage is feared.
538. (1) Where a person has reason to apprehend that in
consequence of a new work undertaken by any other person either
in such other person’s own tenement or in the tenement of others,
damage may be caused to an immovable thing possessed by him, he
may bring an action demanding that such other person be restrained
from continuing such new work, provided this shall not have as yet
been completed and one year shall not have elapsed from the
commencement thereof.
(2) The court, after summarily taking cognizance of the facts of
the claim, may, according to circumstances, either restrain or allow
the continuation of such new work, ordering such security as it may
deem proper.
(3) Where the continuation of the work has been restrained,
such security shall be in respect of the payment of any damages
which may be caused by the suspension of the work, in case the
opposition to the continuation thereof shall prove to be groundless.
(4) Where the continuation of the work has been allowed, such
security shall be for the total or partial demolition of the work, and
for the payment of the damages which the plaintiff may suffer, in
case he obtains, notwithstanding that the work was allowed to be
continued, a final and absolute judgment in his favour.
Action competent 
to person 
apprehending 
damage from any 
building, tree, etc.
539.   Where any person has reasonable cause to apprehend any
serious and impending damage to a tenement or other thing
possessed by him, from any building, tree or other thing, he may
bring an action demanding, according to circumstances, either that
the necessary steps be taken to obviate the danger, or that the
neighbour be ordered to give security for any damage the plaintiff
may suffer therefrom.
116               CAP.16. ħ                CIVIL CODE
Sub-title III
O F THE  R IGHTS AND  O BLIGATIONS AS BETWEEN 
THE  P OSSESSOR AND THE  O WNER
§  I.  OF THE  F RUITS OF THE  T HING POSSESSED, OF THE 
E XPENSES INCURRED IN CONNECTION THEREWITH AND 
OF THE  R IGHT OF  R ETENTION
Right of possessor 
in good faith with 
regard to fruits of 
thing possessed.
540. A possessor in good faith acquires the fruits of the thing
possessed, even though such thing be an inheritance; and he is not
bound to restore except such fruits as he shall have collected, or, by
the exercise of the diligence of a  bonus paterfamilias , could have
collected, after a judicial demand:
Provided that he shall not be bound to restore the price of
unplucked or uncut fruits, received by him before the judicial
demand, even though, at the time of such demand, the fruits may be
as yet unplucked from the trees or uncut from the ground.
Possessor in bad 
faith.
541.   A possessor in bad faith is bound to restore all the fruits
which he has collected, or, by the exercise of the diligence of a
bonus   paterfamilias , could have collected from the day of his
unlawful occupation.
Right of possessor 
in good faith as to 
expenses.
542. (1) A possessor in good faith may demand from the
owner the reimbursement of the necessary expenses whether their
effect continues or not.
(2) As regards useful expenses, the owner is bound either to
refund to the possessor the cost of the work or, at his option, to pay
to him a sum corresponding to the enhanced value of the thing.
(3) The court may, according to circumstances, direct that the
refund of the expenses made on an immovable, be effected by the
owner by means of a rent-charge secured by the hypothecation of
the immovable, or in any other manner as to fully satisfy the debt
and which is at the same time less onerous to the debtor.
Possessor in bad 
faith.
543. (1) In relation to a possessor in bad faith, the owner has,
in respect of necessary expenses, and of useful expenses for
meliorations which cannot be removed, the same obligations as an
owner has in relation to a possessor in good faith, provided
possession of the thing shall not have been obtained by theft or
some other offence which does not fall under the class of
contraventions.
(2) As regards useful expenses for meliorations which can be
removed, the owner may elect either to retain such meliorations or
to compel the possessor to remove them.
(3) If the owner demands the removal of such meliorations, the
possessor shall remove them at his expense without any right to
indemnity, and he shall be bound to make good to the owner any
damage which the latter may have suffered.
(4) If the owner elects to retain the meliorations, he shall, at his
     CIVIL CODE            ġ CAP. 16.             117
option, either refund to the possessor the cost thereof or pay to him
a sum corresponding to the enhanced value of the thing.
Rights of possessor 
as to decorative 
expenses. 
544.   With regard to decorative expenses the possessor, whether
in good or bad faith, shall only be entitled to take back the
adornments in kind, provided this be advantageous to the possessor
and not injurious to the thing, unless the owner desires to retain
such adornments, and pay to the possessor a sum corresponding to
the profit that the latter might make by taking them away.
Definition of 
necessary, useful 
and decorative 
expenses.
545. (1) Necessary expenses are those without which the thing
would have perished or deteriorated.
(2) Useful expenses are those which ameliorate the thing by
making it more convenient, or capable of yielding more fruit, but
the omission of which is not prejudicial to the thing.
(3) Decorative expenses are those which serve only to adorn
the thing, without rendering it more convenient or capable of
yielding more fruit, and which if omitted would not cause the thing
to deteriorate.
(4) Decorative expenses may, however, in certain cases, be
considered as useful expenses, regard being had to the condition of
the owner, or to the existence of particular circumstances which
may afford the owner an immediate opportunity of deriving profit
from such expenses.
Possession of thing 
obtained by theft or 
other offence.
546.   Any person who shall have obtained possession of the
thing by theft or any other offence, not being a mere contravention,
shall not be entitled to any indemnity for any kind of expenses, or
to remove any meliorations made on the thing; and he may be
compelled by the owner to remove at his expense, and without any
right to indemnity, such objects as may be removed, and also to
make good any damage which the owner may have suffered.
Set-off of fruits 
against expenses.
547. The set-off of the fruits against the expenses mentioned in
the foregoing articles shall take place even with regard to the
possessor in good faith:
Provided such possessor shall, besides the fruits which he is
bound to restore according to the provisions of article 540, be
bound to bring into account only the fruits which he shall have
collected during the five years preceding the judicial demand of the
owner.
Where possessor in 
good or bad faith is 
not bound to 
restore fruits of 
meliorations.
548.   The possessor, whether in good or bad faith, shall not be
bound to restore, or to bring into account for the purposes of the
set-off mentioned in the last preceding article, the fruits of any
meliorations which, under the provisions of the foregoing articles,
he has the right to remove, or for which he is to be indemnified by
the owner, unless the owner agrees to pay to him interest on the
cost of such meliorations.
Expenses for the 
production or 
preservation of 
fruits.
549. (1) The expenses for the production or preservation of the
fruits of a thing are not comprised in those referred to in the
foregoing articles of this sub-title.
(2) Such expenses shall always be deducted from the said
118               CAP.16. ħ                CIVIL CODE
fruits. 
Right of retention 
competent to 
possessor.
550.   Where under the provisions of the foregoing articles, a
possessor, whether in good or bad faith, is entitled to recover the
expenses made on a thing belonging to others, either by taking back
the subject of such expenses, or by the reimbursement of the said
expenses, he shall, saving the provisions of article 2079, be entitled
to retain the thing until he shall have obtained what is due to him,
provided his demand for the recovery of such expenses is made,
even orally, during the hearing of the action, before judgment is
delivered on the demand of the owner for the restoration of the
thing.
§  II. O F THE  O BLIGATIONS OF THE  P OSSESSOR WITH REGARD
TO THE RESTORATION OF THE  T HING
Possessor in good 
faith to make good 
damage.
551.   A possessor in good faith is bound to make good such
damage as, by his own act or otherwise, even before the judicial
demand of the owner, may have been caused to the thing, but only
to the extent of the benefit which he has derived from such damage.
If the thing 
possessed be an 
inheritance.
552.   Where the thing possessed is an inheritance or a portion of
an inheritance, the possessor, even if in good faith, who has
alienated any hereditary thing, is, moreover, bound to restore, but
always to the extent of the benefit which he has derived from such
alienation, the value of such thing.
Where possessor is 
deemed to have 
derived a benefit.
553.   For the purposes of the provisions of the last two
preceding articles, the possessor is deemed to have derived a
benefit from the said damage or alienation in each of the following
cases only:
( a ) if the subject of the benefit so derived is found, at the
time of the judicial demand, to exist separately from
the things belonging to the possessor;
( b ) if, where the subject of such benefit has been
intermixed with things belonging to the possessor, his
estate is found, at the time of such demand, to have
been enhanced thereby;
( c ) if, where the subject of such benefit has been
consumed by the possessor, such possessor has in
consequence saved his own things, and such saving
still exists:
Provided that it shall be lawful for the possessor in any of the
foregoing cases to retain the subject of such benefit on paying to
the plaintiff the value of the things at the time he shall have
disposed thereof or their value at the time of the demand,
whichever is the greater.
Possessor in good 
faith not bound to 
restore value of 
things given, etc.
554.   A possessor in good faith is not, even in the case of
possession of an inheritance, bound to restore the value of things
given, lost or destroyed without profit.
     CIVIL CODE            ġ CAP. 16.             119
Applicability of 
ss.552, 553 and 
554 to possessor of 
other  universitas 
rerum.
555.   The provisions of the last three preceding articles shall
apply to the possessor of any other  universitas rerum .
Possessor in bad 
faith to restore 
things wrongfully 
occupied by him.
556. (1) A   possessor in bad faith shall in all cases be bound to
restore all the things which he has wrongfully occupied.
(2) Where such possessor has, whether voluntarily or through
his own fault, ceased to possess any of such things, he shall be
bound to restore to the plaintiff any profit which he may have
derived therefrom or, at the option of the plaintiff, to pay to him the
value of the thing at the time of the cesser of possession or the
value thereof at the time of the demand, whichever is the greater,
notwithstanding that, in such case, he shall not have derived any
profit therefrom.
Possessor in bad 
faith answerable 
for damage caused 
to thing.
557.  A possessor in bad faith shall also be liable for all damage
which may have been occasioned by his own act as well as for that
occasioned by a fortuitous event unless, whatever the manner in
which he may have obtained possession of the thing, he shows that
the thing would have equally perished or deteriorated if it had been
in the possession of the owner.
§  III. O F THE  P ARTICULAR  E FFECTS OF THE  P OSSESSION OF 
M OVABLES
Possession of 
movables by third 
parties in good 
faith.
558. (1) In the case of movables by nature, or securities to
bearer, possession shall produce in favour of third parties in good
faith the same effects as the title, saving, in regard to vessels, the
provisions of any other law.
(2) The provisions of this article shall not apply in the case of a
universitas  of movables.
Owner of thing lost 
or stolen may 
recover it.
559. (1) It shall, nevertheless, be lawful for any person who
has lost a thing, or has been robbed thereof, to recover it on
indemnifying the possessor.
(2) Such person may even recover the thing without any
obligation to indemnify the possessor if the latter has not obtained
the thing in good faith, under an onerous title, from a party who
was presumably the owner thereof or a person charged by the
owner to dispose of it.
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PART II
O F THE  M ODES OF ACQUIRING AND TRANSMITTING  P ROPERTY 
AND OTHER  R IGHTS OVER OR 
RELATING TO  T HINGS
G ENERAL  P ROVISIONS
Acquisition and 
transmission of 
property by 
succession, etc.
560. (1) Ownership and other rights over things, or relating to
things, may be acquired and transmitted by succession, or by virtue
of an agreement or by means of prescription.
(2) Ownership may also be acquired and transmitted by
occupancy or by accession.
Title I
O F  O CCUPANCY
Definition of 
occupancy.
561. (1) Occupancy consists in taking possession of a
corporeal thing which is not, but can be, the property of any one,
with the intention of becoming the owner of it.
(2) The occupant shall acquire the ownership thereof, unless
the law provides otherwise.
Rights of owners 
of swarms of bees.
562. (1) The owner of a swarm of bees has the right to pursue
them over the tenement of any other person, subject to his
obligation of making good any damage caused to such tenement.
(2) Where the owner has not pursued the bees within ten days
to be reckoned from the day on which he became aware of the
tenement on which they had settled, or has discontinued the pursuit
for ten days, the possessor of such tenement shall be entitled to take
and retain them.
(3) The provisions of this article shall also apply to the owner
of domesticated animals; but such animals shall become the
property of the person who has taken and retained them, unless they
are claimed within thirty days to be reckoned from the day on
which the owner has had knowledge of the place in which such
animals were to be found.
Treasure trove.  
Cap. 54.
563. (1) Saving the provisions of the Antiquities (Protection)
Act, where a treasure trove is discovered in a tenement of another
person, such treasure trove if discovered by mere chance, shall
belong as to one-half to the finder, and as to the other half to the
owner of the tenement wherein it is found, and if discovered as a
result of searches made for the purpose, it shall belong entirely to
the owner of the tenement.
(2) The expression "treasure trove" means and includes any
movable thing, even though not precious, which is concealed or
buried, and of which no one can prove himself to be the owner.
     CIVIL CODE            ġ CAP. 16.             121
Lost property.  
Amended by: 
L.N 148 of 1975; 
XXII.1979.2.
564. (1) Any person who finds a movable thing, not being a
treasure trove, is bound to restore it to its previous possessor, if
known: otherwise he is bound to deliver it without delay to the
Police.
(2) The Commissioner of Police shall publish by means of a
notice in the Gazette a list of the movable things referred to in sub-
article (1) of this article, and shall re-publish such list, with the
exception of the things claimed by their owner, after three months
of the said notice.
(3) At   the expiration of three months from the date of the
publication of the second notice, if the owner has not appeared to
claim the thing, such thing or, where circumstances have rendered
its sale expedient, the price thereof, shall belong to the finder.
(4) The owner or the finder, as the case may be, shall, on
withdrawing the thing or its price, pay any expenses which may
have been incurred.
(5) Moreover, the owner who withdraws the thing, shall pay to
the finder a reward to be regulated according to circumstances, and
not exceeding one-tenth part of the value of the thing found.
(6) If, within the lapse of six months of the first notice
published in the Gazette under sub-article (2) of this article, neither
the finder nor the owner claims the thing or the price thereof, such
thing or price, as the case may be, shall belong to the Government.
Things thrown or 
falling into the sea.
Amended by:
L.N. 46 of 1965; 
LVIII. 1974.68.
565. (1) The provisions of the last preceding article shall not
apply to such things as are cast or have fallen into the sea, or are
thrown by the sea upon the shore, or to plants and herbs which
grow on the seashore, or in the bottom of the sea, except in so far as
the rights over such things are not regulated by special laws.
(2) It shall not be lawful, without the permission of the
President of Malta, to fish for coral or other similar things that are
formed or grown in the bottom of the sea.
Title  II
O F  A CCESSION
Definition of 
accession.
566.   Accession is the right whereby the person who has the
property of a thing acquires the property of all that the thing
produces, or that becomes united to, or incorporated with it,
whether naturally or artificially.
Sub-title I
O F THE  R IGHT OF  A CCESSION TO WHAT IS PRODUCED BY THE 
T HING
Ownership of 
natural, industrial 
or civil fruits.
567.   Natural, industrial, or civil fruits belong, by right of
accession, to the owner of the thing that produces them subject to
122               CAP.16. ħ                CIVIL CODE
the obligation of refunding the expenses incurred by third parties
for the production or preservation of such fruits.
Sub-title II
O F THE  R IGHT OF  A CCESSION IN REGARD TO  I MMOVABLE 
T HINGS
Constructions, 
plantations, or 
works made with 
materials 
belonging to 
others.
568.   Where the owner of a land has made thereon
constructions, plantations, or works with materials belonging to
others, he shall be bound to pay the value of such materials, and, in
case of bad faith, to pay also damages and interest; but the owner of
the materials shall not have the right of taking them back unless he
can do so without destroying the work so constructed, or causing
the plantation to perish.
Constructions, etc., 
made by third party 
in possession with 
his own materials,
569. (1) Where any such constructions, plantations, or works
have been made by a third party in possession, with his own
materials, the provisions relating to Possession under Title VI of
Part I of Book Second of this Code shall apply, regard being had as
to whether such possessor was in good or bad faith.
(2) If such third party was not a possessor within the meaning
of article 524 the provisions contained in article 543 shall in all
cases be applied.
with materials 
belonging to 
others.
570.   Where such constructions, plantations, or works have been
made by a third party with materials belonging to others, the owner
of such materials shall not be entitled to recover them back, but he
may demand to be indemnified by the third party who has made use
of such materials, and even by the owner of the tenement to the
extent of any amount which may be still due by such owner.
Occupation in 
good faith of a 
portion of a 
contiguous 
tenement.
571.   Where in the construction of any building a portion of a
contiguous tenement has been occupied in good faith, and the
construction has been made with the knowledge of the neighbour
and without any opposition on his part, the ground so occupied and
the building constructed thereon may be declared to be the property
of the person who made the construction, subject to his obligation
to pay to the owner of the ground the value of the surface occupied,
and to make good any damage which may have been caused.
Sub-title III
O F THE  R IGHT OF  A CCESSION IN REGARD TO  M OVABLE  T HINGS
Right of accession 
in regard to 
movable things.
572. (1) The right of accession in regard to movable things
belonging to several owners shall be governed by the principles of
natural equity.
(2) The provisions contained in the following articles shall
guide the court in the disposal of cases not specifically provided
for, regard being had to the particular circumstances of each case.
     CIVIL CODE            ġ CAP. 16.             123
Where two things 
belonging to 
different owners 
have been united 
so as to form a 
whole.
573. (1) Where two things belonging to different owners have
been united in such a manner as to form a whole, but can
nevertheless be separated without considerable damage to either of
them, each of the owners shall retain the ownership of his own
thing, and shall be entitled to demand separation.
(2) Where, however, the two things cannot be separated
without considerable damage to one of them, the whole shall
belong to the owner of the thing which forms the principal part
thereof, subject to his obligation to pay to the other owner the value
of the thing united to his own.
Which part is to be 
considered as 
principal.
574.   The part to be considered as principal shall be that to
which the other has been united merely for the use, adornment, or
completion of the former.
Where accessory is 
much more 
precious than 
principal.
575.   Nevertheless, if the thing united is much more precious
than the principal thing, and has been made use of without the
concurrence of the owner, such owner may elect either to
appropriate the whole and pay to the owner of the principal thing
the value thereof, or to demand the separation of the thing united,
even though such separation may cause injury to the other.
When thing is 
considered as 
principal by reason 
of its value or bulk.
576.   Where of two things united to form a whole neither can be
considered as the accessory of the other, the one which has the
greater value, or, if the values are approximately equal, the greater
bulk shall be deemed to be the principal.
Where artificer 
employs materials 
not belonging to 
him,
577.  Where an artificer or any other person has made use of
materials not belonging to him, for the purpose of producing a
thing of a new species, the owner of such materials shall,
independently of whether the materials can be restored to their
primitive condition or not, be entitled to the ownership of the thing
so produced, subject to his obligation of paying to the artificer or
other person the price of the workmanship.
or materials 
belonging partly to 
him and partly to 
others. 
578.  Where any person has, for the purpose of producing a
thing of a new species, made use of materials partly belonging to
him, and partly belonging to others, in such a manner that, although
neither the materials of the one nor those of the other have been
entirely transformed, such materials cannot, nevertheless, be
separated without injury, the thing shall belong in community to
both owners in such shares as correspond to the value of their
respective contribution, that is, in regard to the one, to the value of
the materials which belonged to him, and, in regard to the other, to
the value of the materials which belonged to him and the price of
the workmanship.
Where 
workmanship is 
much more 
valuable than 
materials.
579.   Where, however, the workmanship is so valuable that it
considerably surpasses the value of the materials employed, the
workmanship shall be considered as the principal subject, and the
artificer shall be entitled to retain the thing so formed on paying to
the owner the price of the materials.
Commixture of 
several materials.
580. (1) Where a thing has been formed by a mixture of
different materials belonging to different owners, and such
materials can be separated without injury, the owner who has not
given his assent to the commixture, may demand separation.
124               CAP.16. ħ                CIVIL CODE
(2) If the materials cannot be separated or if such separation
cannot take place without injury, the thing created by the
commixture becomes common property in proportion to the value
of the materials belonging to each party.
Where materials 
belonging to one 
owner can be 
considered as the 
principal subject.
581.   Where, however, the materials belonging to one of the
owners can be considered as the principal subject, or are far
superior in value to the other materials, and the different materials
cannot be separated, or would, if separated, suffer injury, it shall be
lawful for the owner of such materials as are reputed to be the
principal subject, or are superior in value, to claim the ownership of
the thing created by the commixture, subject to his obligation of
paying to the other owner the value of his materials.
Owners of 
materials may 
demand sale by 
auction of new 
subject of property.
582.   Where the new subject of property remains in community
between the owners of the several materials with which the subject
was created, each co-owner may demand the judicial sale thereof
by auction for the common benefit and at joint expense.
Rights of owner of 
materials 
employed without 
his concurrence.
583.   In all cases in which the owner of the materials employed
without his concurrence is entitled to claim the ownership of the
thing, he may demand, at his option, either that materials of the
same quality and quantity be returned to him, or the value thereof.
Liability for 
damages.
584.   Any person who has made use of materials belonging to
others without their consent may also be condemned to pay
damages, saving any criminal proceedings to which he may be
liable.
Title  III
O F  S UCCESSIONS
G ENERAL  P ROVISIONS
Definition of 
inheritance.
585.   An inheritance is the estate of a person deceased, and it
devolves either by the disposition of man or, in the absence of any
such disposition, by operation of law.
How inheritance is 
disposed of.
586. (1) Saving the provisions relating to donations made in
contemplation of marriage, it shall not be lawful to dispose of an
inheritance, either wholly or in part, or of any sum of money or
other particular subject belonging to an inheritance otherwise than
by a will.
(2) The denominations "codicil" and "donation  mortis causa "
are hereby abolished.
Testamentary 
instruments made 
before 11th 
February 1870.
587. The provisions of this Code shall not supersede any other
law previously in force with regard to any testamentary instrument
made before the 11th February, 1870, even though on such date the
disponer may have been still alive:
Provided that if any such instrument is not valid according to
such other law it may, unless it is revoked by the disponer, be
     CIVIL CODE            ġ CAP. 16.             125
maintained under the provisions of this Code, provided it satisfies
the requirements thereof.
Sub-title I
O F  T ESTATE  S UCCESSIONS
§ I. O F  W ILLS
Definition of will.
person, according to the rules laid down by law, disposes, for the
time when he shall have ceased to live, of the whole or of a part of
his property.
Dispositions by 
universal or 
singular title.
589. (1) A   will may contain dispositions by universal as well
as by singular title.
(2) It may also contain dispositions by singular title without
any disposition by universal title.
Definition thereof.
testator bequeaths to one or more persons the whole of his property
or a portion thereof.
(2) Any other disposition is a disposition by singular title. 
Heir.
the testator has disposed by universal title.
Legatee.
the testator has disposed by singular title.
Will  unica charta.
instrument, or, as is commonly known,  unica charta ,   is   valid.
(2) Where such will is revoked by one of the testators with
regard to his or her estate, it shall continue to be valid with regard
to the estate of the other.
Where surviving 
spouse revokes 
will  unica charta  
with regard to his 
or her estate.
593. (1) Where, however, by a will  unica   charta,  the testators
shall have bequeathed to each other the ownership or the usufruct
of all their property, or of the greater part thereof, the survivor,
who shall revoke the will with regard to his or her estate, shall,
unless the predeceased shall have otherwise ordained, forfeit all
rights which he or she may have had in virtue of such will on the
estate of the predeceased spouse.
(2) The same rule shall apply in any case in which, although
the surviving spouse has not revoked the will, yet such will, by his
or her own act, cannot be effectual with regard to his or her estate.
Effects of such 
revocation.
594.   In any of the cases referred to in the last preceding article,
the estate of the predeceased spouse, together with all the fruits
thereof from the day of his or her death, shall, unless otherwise
ordained by such spouse, vest wholly in the heirs instituted by him
126               CAP.16. ħ                CIVIL CODE
or her or, in default thereof, in his or her heirs-at-law, without
prejudice to any legacy which may have been bequeathed to any
person other than such of the spouses as shall have revoked his or
her dispositions, or by whose act such dispositions cannot take
effect.
Will  unica charta  
admissible only 
between husband 
and wife.  
Amended by: 
XXX.1981.8.
595. It shall not be lawful for any two or more persons, other
than a husband and wife, to make a will in one and the same
instrument, whether for the benefit of any third party or for mutual
benefit:
Provided that a secret will in one and the same instrument shall
not be made by husband and wife after the 15th August, 1981.
§  II. O F THE  C APACITY OF  D ISPOSING OR  R ECEIVING BY  W ILL
Capacity of 
disposing or 
receiving by will. 
Amended by: 
LVIII.1975.4. 
Cap. 201 .
596.   Saving the provisions of the Mortmain Act, any person not
subject to incapacity under the provisions of this Code, may
dispose of, or receive property by will.
Testamentary 
incapacity.
597.   The following persons are incapable of making wills:
( a ) those who have not completed the fourteenth year of
their age;
( b ) congenital deaf-mutes, who do not know how to write;
( c ) those who are interdicted on the ground of insanity; 
( d ) those who, not being interdicted, are not of sound
mind at the time of the will;
( e ) those who are interdicted on the ground of prodigality
unless they have been authorized to dispose of their
property by the court which had ordered their
interdiction:
  Provided that a person interdicted on the ground of
prodigality may, even without the authority of the
court, revoke any will made by him prior to his
interdiction.
Persons under 
eighteen can only 
make remuneratory 
dispositions.
598. (1) Those who have not completed the eighteenth year of
their age cannot make by will other than remuneratory dispositions.
(2) Nevertheless, where any such disposition, regard being had
to the means of the testator and to the services in reward of which it
is made, is found to exceed a reasonable amount, it may be reduced
by the court to such amount.
Wills made by 
persons subject to 
incapacity are null 
even though 
incapacity ceases 
before testator’s 
death.
599.   Any will made by a person subject to incapacity is null,
even though the incapacity of the testator may have ceased before
his death.
     CIVIL CODE            ġ CAP. 16.             127
Those not yet 
conceived cannot 
receive by will.
600. (1) Those who, at the time of the testator’s death or of the
fulfilment of a suspensive condition on which the disposition
depended, were not yet conceived are incapable of receiving by
will.
(2) The provisions of this article shall not apply to the
immediate children of a determinate person who is alive at the time
of the death of the testator, nor to persons who may be called to the
enjoyment of a foundation.
Those not born 
viable cannot 
receive by will.
601. (1) Those who are not born viable are incapable of
receiving by will.
(2) In case of doubt, those who are born alive shall be
presumed to be viable.
Portion which 
illegitimate 
children may 
receive by will.
602.   Where the testator leaves legitimate children or
descendants, or children or descendants legitimated by a
subsequent marriage, or adopted children or their descendants,
legitimate or legitimated as aforesaid, any illegitimate children,
even though acknowledged, or legitimated by decree of court,
cannot receive by will more than that to which they are entitled
under paragraph   ( a ) of sub-article (1) of article 640.
Portion which 
surviving spouse 
may receive by 
will where 
deceased leaves 
children or 
descendants.
603.   Where the testator leaves children or descendants as stated
in the last preceding article, the surviving spouse cannot receive, in
ownership, more than one-fourth of the deceased’s property.
Portion which may 
be received by 
husband or wife in 
case of second  or 
subsequent 
marriage.
Amended by: 
XXI.1962.11.
604. (1) Where a spouse having children or descendants as
stated in article 602, has contracted a second or subsequent
marriage, such spouse cannot bequeath to his last wife or her last
husband, or to any of the children of the second or subsequent
marriage, more than that which the least favoured of the children of
any former marriage will receive.
(2) Where the testator leaves legitimate children or
descendants, or children or descendants legitimated by a
subsequent marriage, or adopted children or their descendants,
legitimate or legitimated as aforesaid, he cannot bequeath to the
adopted children or their descendants aforesaid more than that
which the least favoured of the legitimate children or descendants
or children or descendants legitimated by a subsequent marriage
will receive.
Persons unworthy 
of receiving by 
will. 
Amended by 
XLIX.1981.4.   
605. (1)   Where any person has - 
( a ) wilfully killed or attempted to kill the testator; or
( b ) charged the testator before a competent authority with
a crime punishable with imprisonment, of which he
knew the testator to be innocent; or
( c ) compelled, or fraudulently induced the testator to
make his will, or to make or alter any testamentary
disposition; or
( d ) prevented the testator from making a new will, or from
128               CAP.16. ħ                CIVIL CODE
revoking the will already made, or suppressed,
falsified, or fraudulently concealed the will,
he shall be considered as unworthy, and, as such, shall be incapable
of receiving property under a will.
(2) The provisions of this article shall also apply to any person
who has been an accomplice in any of the said acts.
Rehabilitation. 606.   Any person who has incurred any of the disqualifications
stated in the last preceding article may receive by will if the
testator has rehabilitated him by a subsequent will or by any other
public deed.
Unworthy heir or 
legatee to restore 
fruits.
607.   Any heir or legatee, excluded as unworthy from receiving
the inheritance or legacy, is bound to restore any fruits or revenues
which he may have received since the opening of the succession.
Descendants of 
person unworthy 
are entitled to the 
legitim.
608. The descendants of a person excluded as unworthy shall, in
all cases, be entitled to the legitim, which would have been due to
the person so excluded:
Provided that such person shall not have, over the portion of the
estate vested in his children, the right of usufruct and
administration which the law grants to parents.
Incapacity of tutors 
or curators to 
receive by will.
609. (1) A   tutor or curator cannot benefit under a will made
during the tutorship or curatorship by the person under his charge.
(2) The same rule shall apply where the will is made after the
termination of the tutorship or curatorship, but before the rendering
of the final account, even if the testator dies after the approval of
such account.
(3) The disability laid down in this article shall not apply to the
tutor or curator who is an ascendant, descendant, brother, uncle,
nephew, cousin or spouse of the person making the will.
Incapacity of 
notary receiving a 
public will to 
benefit under the 
same.  
Amended by: 
V.1993.2.
610. (1) Nor can the notary by whom a public will has been
received, or the person by whom a secret will has been written out,
benefit in any way by any such will, unless immediately after the
disposition made in favour of the said notary or person there be
affixed the signature of the testator.
(2) The provisions of this article shall not apply where a secret
will is made with the assistance of a judge or magistrate as
provided in article 663.
Incapacity of 
members of 
monastic orders, 
etc. 
Amended by: 
V.1993.2.
611. (1) The members of monastic orders or of religious
corporations of regulars cannot, after taking the vows in the
religious order or corporation, dispose by will.
(2) Nor can such persons receive under a will except small life
pensions, saving any other prohibition laid down by the rules of the
order or corporation to which they belong.
(3) * Where such persons are lawfully released from their vows,
they shall again acquire the capacity to receive under a will, as well
*For the application of this provision  see  article 4 of Act V of 1993.
     CIVIL CODE            ġ CAP. 16.             129
as to dispose of such property as they may have subsequently
acquired, and any disposition made in favour of a person who at the
time of the testator’s death was a member of a monastic order or of
a religious corporation of regulars shall remain suspended until
such person is either released from his vows as aforesaid or dies
while still a member of such order or corporation, and shall be
ineffectual if the person, in whose favour it is made, dies while still
such a member.
Disposition in 
favour of incapable 
persons is null 
even if made 
through 
intermediaries.
612. (1) Any testamentary disposition in favour of a person
who is incapable in terms of articles 602, 603, 604, 609 and 610 is
void, even if such disposition is made in the name of
intermediaries.
(2) Where the incapacity is partial any such disposition shall be
void only in part.
Persons deemed to 
be intermediaries.
613.   The father, the mother, the descendants, and the husband
or wife of the person under any such incapacity, as the case may be,
shall be deemed to be intermediaries.
§  III. O F THE  P ROPERTY WHICH MAY BE DISPOSED OF BY  W ILL
Property which 
may be disposed of 
by will.
614. (1) Where the testator has no descendants, ascendants,
spouse or illegitimate children, he may dispose by universal or
singular title of the whole of his estate in favour of any person
capable of receiving under a will.
(2) Where the testator has descendants, ascendants, spouse or
illegitimate children, the disposable portion of his estate shall be
that which remains after deducting such share as is due to the said
descendants, ascendants, spouse or illegitimate children under any
of the provisions of articles 615 to 653.
O F  L EGITIM AND  D ISHERISON
Legitim due to 
descendants.
615. (1) Legitim is a portion of the property of the deceased
which is saved by law to the descendants, and on failure of
descendants, to the ascendants of the deceased.
(2) The provisions of this article shall not supersede the
provisions contained in articles 12 and 13 Chapter I Book III of the
Municipal Law of Malta, commonly called "Code De Rohan", with
regard to children born from marriages contracted before the 11th
February, 1870 according to the custom referred to in that Code, in
which case the provisions of such Code shall apply.
Portion assigned as 
legitim.
616. (1) The legitim due to legitimate children, or to children
legitimated by a subsequent marriage, or to adoptive children, shall
be a third part of the property of the deceased, if such children are
not more than four in number, or one-half of such property if they
130               CAP.16. ħ                CIVIL CODE
are five or more in number.
(2) The legitim is divided in equal shares among the children
who participate in it.
(3) Where there is only one child, he shall receive the whole of
the aforesaid third part.
“Children” to 
include 
descendants.
617.   For the purposes of the last preceding article the word
"children" shall include the descendants of the children in
whatsoever degree they may stand. Nevertheless, such descendants
shall only be reckoned for the child from whom they descend.
Rules for 
determining the 
number of children 
for regulating the 
legitim.
618. (1) Children or other descendants who are incapable of
receiving property by will, or who have been disinherited by the
testator, or have renounced their share, shall also be taken into
account in determining the number of children for the purpose of
regulating the legitim.
(2) Saving the provisions of articles 608 and 626 the portions
of the children or other descendants who are incapable, or who
have been disinherited, or have renounced their share, shall devolve
in favour of the other children or descendants taking the legitim.
(3) A   child or other descendant who has been instituted heir,
shall share the legitim with the others.
Legitim due to 
ascendants. 
Amended by: 
XLVI.1973.52.
619. (1) Where the testator does not leave children or other
descendants as stated in articles 616 and 617 or illegitimate
children legitimated or acknowledged as provided in article 819,
and is not survived by the spouse, the right of legitim shall vest in
the ascendants of such testator.
(2) The legitim shall, in such case, consist of the third part of
the property of the deceased, and shall be distributed as follows:
( a ) where both the father and mother survive, the said
third part shall be divided between them in equal
portions;
( b ) where only the father or only the mother survives, the
legitim shall belong entirely to such surviving father
or mother;
( c ) where the testator is not survived by either his father
or mother, but only by other paternal and maternal
ascendants in equal degree, the legitim shall be due, as
to one-half, to the paternal ascendant or ascendants,
and, as to the other half, to the maternal ascendant or
ascendants;
( d ) where such ascendants stand in different degrees the
legitim shall entirely belong to the ascendant nearest
in degree, irrespective of whether such ascendant is
paternal or maternal.
Legitim to be free 
from burdens or 
conditions.
620. (1) The legitim is due in full ownership, and it shall not
be lawful for the testator to encumber it with any burden or
condition.
     CIVIL CODE            ġ CAP. 16.             131
(2) The legitim is computed on the whole estate, after
deducting the debts due by the estate, and the funeral expenses.
(3) There shall be included in the estate all the property
disposed of by the testator under a gratuitous title, even in
contemplation of marriage, in favour of any person whomsoever,
with the exception of such expenses as may have been incurred for
the education of any of the children or other descendants.
(4) The person to whom the legitim is due shall impute to it all
such things as he may have received from the testator and as are
subject to collation under any of the provisions of articles 913 to
938.
Where subject of 
testamentary 
disposition is a 
usufruct or life 
annuity.
621. (1) Where the subject of the testamentary disposition is a
right of usufruct or a life annuity, and it appears to the persons
entitled to the legitim that the value of such usufruct or life-rent
surpasses the disposable portion of the estate of the testator, they
shall only have the option either to abide by the testamentary
disposition or to take the share due to them by way of legitim free
from every charge, on abandoning in favour of the disponees of the
usufruct or life-annuity the full ownership of the disposable
portion.
(2) Where any of the persons entitled to legitim elects in his
own interest to abide by the testamentary disposition, it shall,
nevertheless, be lawful for any other of such persons to elect to
take the legitim on abandoning, as aforesaid, the disposable
portion.
Disherison.
unworthy to inherit, the persons entitled by law to a  legitima portio
may be deprived thereof by a specific declaration of the testator on
any of the grounds specified in this Code, to be stated in the will.
Grounds on which 
a descendant may 
be disinherited. 
Amended by: 
XXI.1993.66.
623.   Saving the provisions of article 630, the grounds on
which a descendant may be disinherited are the following only:
( a ) if the descendant has without reason refused
maintenance to the testator;
( b ) if, where the testator has become insane, the
descendant has abandoned him without in any manner
providing for his care;
( c ) if, where the descendant could release the testator
from prison, he has without reasonable ground failed
to do so;
( d ) if the descendant has struck the testator, or has
otherwise been guilty of cruelty towards him;
( e ) if the descendant has been guilty of grievous injury
against the testator;
( f ) if, in the case of a son or daughter or other descendant,
he or she publicly prostitutes himself or herself
without the connivance of the testator;
( g ) in any case in which the testator, by reason of the
marriage of the descendant, shall have been, under the
132               CAP.16. ħ                CIVIL CODE
provisions of Sub-title II   of Title I of Book First of this
Code, declared free from the obligation of supplying
maintenance to such descendant.
Grounds on which 
an ascendant may 
be disinherited.
624.   The grounds on which ascendants may be disinherited
are the following only:
( a ) if the ascendants have entirely neglected the education
of the descendant, or have without reason refused him
maintenance;
( b ) if, where the descendant has become insane, the
ascendants have abandoned him without in any manner
providing for his care;
( c ) if the ascendants have attempted to take the life of any
of their descendants;
( d ) if one of the ascendants has attempted to take the life
of the other or has grossly outraged him.
Grounds of 
disherison to be 
proved by party 
alleging 
disherison.
625. (1) The ground of disherison must be proved by the party
alleging such disherison.
(2) Where more grounds are stated, the proof of one is
sufficient.
Rights of children 
of persons 
disinherited.
626. (1) If the person disinherited has children or other
descendants, the legitim of which such person has been deprived
shall be due to them.
(2) In any such case the person disinherited shall not have over
the legitim the usufruct or administration to which he may be
entitled by law.
Where person 
disinherited 
predeceases 
testator.
627.   Where the person disinherited predeceases the testator, the
disherison shall not prejudice the rights of his descendants.
Maintenance of 
person 
disinherited.
628.   Where the person disinherited has no other means of
subsistence, those who in consequence of his disherison shall
benefit by his legitim, shall be bound to give him maintenance to
the extent of the fruits of the legitim, saving any other right to
maintenance competent according to law.
Right to legitim 
when cause of 
disherison is not 
stated or proved.
629.   Where the ground of disherison is not stated, or is not
proved, the person disinherited shall only be entitled to the legitim.
Disherison on the 
ground of 
prodigality.
630.   Where the person entitled to the legitim is interdicted on
the ground of prodigality, or is so burdened with debts that the
legitim, or at least the greater part of it would be absorbed by such
debts, it shall be lawful for the testator by an express declaration to
disinherit such person, and to bequeath the legitim to the children
or descendants of such person.
     CIVIL CODE            ġ CAP. 16.             133
O F THE  R IGHTS OF THE SURVIVING  S POUSE AND 
OF  I LLEGITIMATE  C HILDREN
Right of surviving 
spouse, if there is 
issue.  
Amended by: 
XLVI.1973.53; 
XXI.1993.67.  
631. (1) Subject to the provisions of article 633A, where a
deceased spouse is survived by children or other descendants,
legitimate or legitimated by a subsequent marriage, or by adoptive
children or their descendants, the surviving spouse shall be entitled
to the usufruct of one-half part of the estate of the deceased.
(2) Such portion shall be subject to the expenses of the last
illness and to the funeral expenses of the spouse who shall have
enjoyed such portion.
Power of court.
spouse in order to provide for his or her maintenance, to
hypothecate or alienate, wholly or in part, the portion referred to in
the last preceding article.
Right of surviving 
spouse, if there is 
no issue. 
633.   On failure of children or descendants as stated in article
631, the surviving spouse shall be entitled to one-fourth part of the
estate in full ownership.
Right of habitation.  
Added by: 
XXI.1993.68.
633A. (1) The surviving spouse shall be entitled to the right of
habitation over the tenement occupied as the principal residence by
the said surviving spouse at the time of the decease of the
predeceased spouse, where the same tenement is held in full
ownership or emphyteusis by the deceased spouse either alone or
jointly with the surviving spouse.
(2) The extent of the tenement subject to the right of habitation
shall not be limited on the grounds that, after the death of the
predeceased spouse the surviving spouse requires a lesser part of
the tenement.
(3) For the purposes of article 631 of this Code the tenement
subject to the right of habitation under this article shall be excluded
from the estate of the deceased over which the surviving spouse has
the usufruct of one-half part.
(4) In the circumstances referred to in article 633, the right
referred to in sub-article (1) of this article shall be in addition to the
right conferred on the surviving spouse by the said article 633.
(5) The right conferred in sub-article (1) of this article shall
subsist even where such right has the effect of reducing, during the
lifetime of the surviving spouse, the legitim or any portion of the
estate of the deceased spouse reserved to any other person.
(6) Where a creditor of the deceased spouse enforces his right
over the tenement subject to the right under this article, or where
the heirs who have accepted the inheritance with the benefit of
inventory sell such tenement in satisfaction of any debt due by the
inheritance, and in either case there exists other assets of the
inheritance with which such debts may be satisfied, the surviving
spouse shall have a right to demand, within one year of the sale,
damages from the heirs of the deceased spouse, or from the heirs of
the deceased spouse who have accepted with the benefit of
inventory who shall not have taken any possible action to pay such
134               CAP.16. ħ                CIVIL CODE
debts out of the other assets.
(7) The spouses may, in a pre-nuptial or post-nuptial
agreement, in accordance with this Code, whichever patrimonial
regime is to regulate their property, exclude or reduce the right
competent to the surviving spouse in virtue of this article.
(8) The right of habitation conferred in this article shall cease
on the remarriage of the surviving spouse.
Right of surviving 
spouse limited in 
certain cases. 
Substituted by: 
XLVI.1973.54. 
Amended by: 
XXI.1993.69. 
634. (1) Where the income from the property comprised in the
portion of the community of acquests belonging to the surviving
spouse, in the donations made and legacies bequeathed to such
spouse by the predeceased spouse is at least equal to the usufruct
mentioned in article 631, the provisions of that article shall not
apply.
(2) Where the value of the property referred to in sub-article
(1) of this article is at least equal to the value of the fourth part of
the estate referred to in article 633, the provisions of that article
shall not apply.
(3) Where in any of the cases referred to in sub-article (1) or
(2) of this article, the income or value of the property therein
mentioned is not equal to the usufruct or the property referred to in
article 631 or 633, as the case may require, the surviving spouse
shall be entitled to take out of the inheritance so much as is
required to make up what is due to him or her.
Where surviving 
spouse ceases to 
possess property 
disentitling him or 
her to  legitima 
portio. 
Amended by: 
XLVI.1973.55. 
635.   Nevertheless, the surviving spouse who, by reason of the
property referred to in the last preceding article, has not received
the portion of the estate saved to such spouse under articles 631 and
633 may, if he or she, without any fault on his or her part, ceases to
possess such property, demand maintenance out of such property of
the predeceased spouse as may still be in the possession of the heirs
of the latter, to the extent of one-half of the usufruct or, as the case
may be, one-fourth of the value of such property, without prejudice
to the rights of the creditors of such heirs: moreover, such property
shall, in such case, be also subject to the expenses of the last illness
and to the funeral expenses of the surviving spouse.
Other cases where 
surviving spouse 
cannot claim 
legitima portio.
Amended by: 
XLVI.1973.56; 
XXI.1993.70. 
636.   Nor shall the provisions of articles 631, 633 and 633A
apply in any of the following cases:
( a ) if, at the time of the death of one of the spouses, the
spouses were separated by a judgment of the
competent civil court, and the surviving spouse had, in
terms of articles 48, 51 and 52 of this Code, forfeited
the rights referred to in those articles;
( b ) where the predeceased spouse has, by his will, on any
of the grounds mentioned in paragraphs ( a ), ( b ), ( c ),
( d ) and ( e ) of article 623, expressly deprived the
surviving spouse of the portion referred to in articles
631 and 633, or the right of habitation referred to in
article 633A, and such ground, or, where more grounds
are stated, any of such grounds is proved;
( c ) if, in regard to the surviving spouse, there exists any of
     CIVIL CODE            ġ CAP. 16.             135
the grounds on which such spouse would under article
605 be, as unworthy, incapable of receiving by will.
Remarriage of 
surviving spouse.  
Forfeiture of 
certain rights.
637.  Where the surviving spouse has entered into a second or
subsequent marriage, and, at the time of such marriage, there are
still children or descendants of the predeceased spouse, as stated in
article 631, the surviving spouse shall forfeit the ownership of all
things which he or she may have received under a gratuitous title
from the predeceased spouse, including donations in contemplation
of marriage, and shall only retain the usufruct thereof, unless the
predeceased spouse has otherwise ordained. In such case the
ownership shall vest in the said children or descendants of the
predeceased spouse.
Forfeiture of 
dower.
638.   Repealed by: XXI. 1993.71.
Property given or 
bequeathed by 
husband to wife to 
be deemed given or 
bequeated on 
account of her 
dowry or dower.
639.   Repealed by: XXI. 1993.71.
Portion due to 
illegitimate 
children 
legitimated by 
decree or 
acknowledged.
640. (1) Illegitimate children acknowledged in the act of birth,
or in any other public deed whether before or after their birth, or
legitimated by a decree of the competent court, shall be entitled to a
portion of the estate of the parent who has so acknowledged them,
or at whose demand they have been so legitimated, and such
portion shall be as follows:
( a ) if the testator leaves children or descendants, as stated
in article 631, the portion of the illegitimate children
shall be one-third part of the legitim to which they
would have been entitled if they had been legitimate
children;
( b ) in default of any such children or descendants, the
portion of the illegitimate children shall be one-half of
the said legitim.
(2) In computing the legitim for the purpose of establishing the
share due to each of the illegitimate children, the rule laid down in
article 618 shall be observed, including also the illegitimate
children.
(3) It shall, in all cases, be lawful for the heirs to pay the share
saved by law to the illegitimate children, either in cash, or in
movable or immovable property of the estate, on a valuation.
Rights of 
illegitimate 
children not 
acknowledged on 
mother’s property,
641.   With regard to the estate of the mother, the provisions of
the last preceding article shall also apply in favour of illegitimate
children not acknowledged as stated in that article, but whose
filiation shall have been declared by a judgment of the competent
court.
on father’s 
property.  
Amended by: 
XXXI.1965.20.
642. (1) With regard, however, to the estate of the father, the
portion saved to the illegitimate children not acknowledged as
aforesaid, but whose filiation shall have been declared by a
136               CAP.16. ħ                CIVIL CODE
judgement of the competent court, shall be regulated and may be
paid according to the provisions of article 640 but it shall in no case
exceed such amount as may be necessary for the maintenance of
each of such children during his or her lifetime.
(2) The heirs may, if they elect to pay a maintenance
allowance, pay such allowance either directly in cash, monthly in
advance, or by granting the usufruct of one or more immovables.
(3) Once the amount of the allowance has been fixed, it shall
not be subject to any alteration, notwithstanding any change of
circumstances.
Property which 
illegitimate child 
must impute to his 
share.
643.   The illegitimate child shall impute to his share, besides the
property bequeathed to him by will, also the property which may
have been given to him by his parent during the latter’s lifetime,
and which is subject to collation under any of the provisions of
articles 913 to 938.
Forfeiture of rights 
by illegitimate 
child.
644. (1) The illegitimate child may, in the same cases and on
the same grounds in and on which disherison of legitimate children
may take place, be, by an express declaration of the testator,
deprived of the rights saved to him under the foregoing articles,
provided such ground be duly proved as stated in article 625.
(2) The illegitimate child shall also forfeit the aforesaid rights
if there be in his regard any of the circumstances which, under the
provisions of article 605, would make him, as unworthy, incapable
of inheriting by will.
Rights competent 
to children of 
predeceased 
illegitimate child. 
Amended by: 
XXI.1962.12.
645.   In case of the predecease of an illegitimate child, his
children or descendants, legitimate, adopted or legitimated by a
subsequent marriage, may claim the rights to which he would have
been entitled under the provisions of the foregoing articles.
Portions due to 
spouse or 
illegitimate 
children not 
chargeable to 
legitim. 
Amended by: 
XXI.1993.72.
646.   Without prejudice to the provisions of article 633A, the
portions due to the spouse and to illegitimate children shall not
diminish the legitim due to legitimate descendants or ascendants,
but shall be a charge on the disposable portion of the estate.
O F THE  A BATEMENT OF  T ESTAMENTARY  D ISPOSITIONS 
EXCEEDING THE DISPOSABLE  P ORTION
Testamentary 
dispositions 
exceeding 
disposable portion, 
liable to 
abatement.
647.   Testamentary dispositions exceeding the disposable
portion, shall be liable to abatement and limited to that portion, at
the time of the opening of the succession, provided the demand is
made within the time established in article 845.
How abatement is 
determined.
648.   For the purpose of determining the abatement, the
following rules shall be observed:
( a ) all the property of the testator, existing at the time of
his death, shall be formed in one bulk, after deducting
therefrom the debts due by the estate;
     CIVIL CODE            ġ CAP. 16.             137
( b ) any property which has been disposed of by way of
donation shall be then fictitiously added, movable
property being reckoned at its value at the time of the
donation, and, immovable property according to its
condition at the time of the donation and its value at
the time of the death of the donor;
( c ) the disposable portion shall then be computed
according to the estate thus formed, regard being had
to the rights of such persons as are by law entitled to a
share of the estate of the testator in accordance with
any of the provisions of articles 615 to 646.
Subject of donation 
perished before 
death of donor not 
to be included in 
the bulk.
649.   Where a thing forming the subject of a donation has
perished, without the fault of the donee, before the death of the
donor, it shall not, for the purposes of the last preceding article, be
included in the bulk of the property.
When value of 
donations exceeds 
or is equal to 
disposable portion.
650.   Where the value of the donations exceeds, or is equal to,
the disposable portion, all testamentary dispositions shall be
ineffectual.
Proportionate 
abatement.
651.   Where the testamentary dispositions exceed either the
disposable portion, or the residue thereof after deducting the value
of the donations, they shall abate proportionately without any
distinction between heirs and legatees.
Declaration by 
testator that a 
disposition shall 
have effect in 
preference to 
others.
652.   Nevertheless, in all cases where the testator has expressly
declared his intention to be that a disposition shall have effect in
preference to the others, such preference shall take place, and any
such disposition shall not abate except in so far as the value of the
property included in the other dispositions shall not be sufficient to
make up the share reserved by law.
Separation of 
subject of legacy.
653. (1) Where the legacy subject to abatement is a thing from
which the part exceeding the disposable portion can conveniently
and without being injuriously affected be separated, the abatement
shall be effected by means of such separation.
(2) Where, however, such separation cannot conveniently and
without injury be effected, it shall be lawful for the legatee to pay
in cash the amount due by him to the party claiming the abatement.
§  IV. O F THE  F ORM OF  W ILLS
O F  O RDINARY  W ILLS
Will is either 
public or secret.
654.   A will may be either public or secret.
Form of public 
will.
Cap. 55.
655. (1) Saving any other provision of this Code, a public will
is received and published by a notary in the presence of two
witnesses in the same manner as any other notarial instrument, in
accordance with the provisions of the Notarial Profession and
Notarial Archives Act, even in regard to the signature of the
testator, according as to whether the testator knows how to, and can
138               CAP.16. ħ                CIVIL CODE
write, or not.
(2) The signature of the witnesses is in no case dispensed with
whatever may be the value of the thing disposed of by the will.
Form of secret 
will.
656. (1) A secret will may be written out either by the testator
himself or by a third person.
(2) Where the testator knows how to, and can write, the will
shall, in all cases, be signed by him at the end thereof.
(3) Where the testator does not know how to, or cannot write,
the provision of article 663 shall apply.
Paper containing 
secret will to be 
closed and sealed.
657. (1) The paper on which a secret will is written, or the
paper used as its envelope shall be closed and sealed.
(2) The testator shall on delivering such paper declare that it
contains his will.
Delivery of secret 
wills.
658. (1) A secret will shall be delivered by the testator to a
notary, or, in the presence of the judge or magistrate sitting in the
court of voluntary jurisdiction, to the registrar of such court.
(2) The will shall be deemed to have been made on the day on
which it is so delivered.
Duties of notary 
receiving a secret 
will.
659. (1) The notary who receives a secret will shall draw up
the act of delivery, recording therein the declaration prescribed in
sub-article (2) of article 657, on the paper itself on which the will is
written, or on the paper used as its envelope.
(2) The act of delivery shall be signed by the testator, the
witnesses, and the notary.
(3) Where the testator declares that he does not know how to,
or cannot write, the notary shall enter such declaration at the foot of
the act, and such entry shall be equivalent to the signature.
Notary to present 
secret will to court 
of voluntary 
jurisdiction. 
Cap. 12.
660.   A notary who has received a secret will, shall, within four
working days, to be reckoned from the day of the delivery, present
such will to the court of voluntary jurisdiction for preservation by
the registrar, as provided in the Code of Organization and Civil
Procedure.
Penalty to be 
inflicted on notary 
contravening the 
provisions of 
s.660. 
Amended by: 
L.N. 46 of 1965; 
LVIII.1974.68; 
XI.1977.2; 
XIII.1983.5. 
Cap.55.
Cap. 9.
661. (1) Any notary who acts in contravention of the provision
of the last preceding article shall, upon civil proceedings instituted
at the suit of the Attorney General, be condemned to interdiction
from his office for a period not exceeding two years, or to a fine
( multa ) of not less than five, nor exceeding fifty liri. 
(2) Where the delay in presenting the will does not exceed two
days, the contravention shall fall under the class of those provided
for in the Notarial Profession and Notarial Archives Act punishable
with a fine ( ammenda )   not exceeding five liri.
(3) The provisions of this article shall not supersede the
provisions of the Criminal Code, where the facts constitute an
offence under that Code. 
     CIVIL CODE            ġ CAP. 16.             139
Note of particulars 
prescribed by Code 
of Org. and Civ. 
Proc. to be 
equivalent to act of 
delivery.  
Cap. 12.
662.   Where a secret will is presented directly to the court, the
note of particulars required under article 527 of the Code of
Organization and Civil Procedure shall be equivalent to the act of
delivery. 
Secret will by 
illiterate person. 
663.  It shall not be lawful for any person who does not know
how to, or cannot write, to make any disposition by a secret will
without the assistance of a judge or magistrate.
Duties of judge or 
magistrate 
assisting an 
illiterate person.
664.  The judge or magistrate requested to give his assistance
under the last preceding article, shall read out and explain to the
testator the contents of the paper which the testator declares to be
his will, and shall enter, at the foot thereof, a declaration to the
effect that he has complied with such requirements, and that he is
satisfied that the contents of the paper are in accordance with the
intention of the testator. Such declaration shall be dated and signed
by the judge or magistrate.
Formalities to be 
observed by judge 
or magistrate 
assisting an 
illiterate person.
665. (1) The said judge or magistrate shall, after the will is
duly closed and sealed, enter on the paper itself on which the will is
written, or on that used as its envelope, a declaration to the effect
that such paper or envelope contains the will of the person making
it, and shall affix his signature to such declaration.
(2) Such declaration shall not operate so as to dispense with the
act of delivery referred to in article 659 or the note of particulars
referred to in article 662.
Any judge or 
magistrate even 
temporarily present 
in Malta or Gozo 
may assist illiterate 
person.
666.  It shall be lawful for a testator who does not know how to,
or cannot read and write, to apply for the assistance of any judge or
magistrate being, even temporarily, in the island or place in which
his assistance is required, including the judge or magistrate sitting
in the court of voluntary jurisdiction in which the will is to be
deposited.
Contents of will to 
be kept secret.
667.   The judge or magistrate giving his assistance, as provided
in the last four proceeding articles, shall be bound not to disclose
the contents of the will. 
Secret will by a 
deaf-mute.
668. (1) A person who is deaf-and-dumb, or dumb only,
whether congenitally or otherwise, may, if he knows how to write,
make a secret will, provided the will is entirely written out and
signed by him, and provided he himself, in the presence of the court
or of the notary to which or to whom he presents such will, and of
the witnesses of the delivery, writes down on the paper which he
presents, that such paper contains his will.
(2) The notary in the act of delivery, or, as the case may be, the
registrar, in the note of particulars referred to in article 662, shall
state that the testator wrote the declaration mentioned in sub-article
(1) of this article, in the presence of the notary and the witnesses,
or in the presence of the court.
Secret will be 
person totally deaf.
669. (1) Where a person who is totally deaf, but can read,
desires to make a public will, he shall read such will himself in the
presence of the notary and the witnesses, and the notary shall,
before the will is signed by himself and the witnesses, enter, at the
140               CAP.16. ħ                CIVIL CODE
foot of the will, a declaration to the effect that the will has been so
read by the testator.
(2) Where, however, such deaf person cannot read, he himself
shall declare his will in the presence of the notary and the
witnesses, and the notary shall, before the will is signed by himself
and the witnesses, enter, at the foot of the will, a declaration to the
effect that the will is in accordance with the will as declared by the
testator.
Persons 
incompetent as 
witnesses in public 
wills.
670.   In public wills, the heirs, legatees, or their relations by
consanguinity or affinity within the degree of uncle or nephew,
inclusively, shall not be competent witnesses.
Testator may 
withdraw secret 
will.
671.   The testator may at any time withdraw his secret will from
the notary to whom he shall have delivered it, if the will is still with
such notary, or from the registry in which it shall have been
deposited.
Nullity of will. 672.   Non-compliance with the requirements of articles 655,
656, 657, 658, 659, 663, 668, 669 and 670 shall, saving the
provisions of articles 673 to 682 inclusive relating to privileged
wills render the will null and void.
O F  P RIVILEGED  W ILLS
Wills in places 
where 
communications 
are interrupted.
673. (1) In places with which communications have been
interrupted by order of the public authority, a will may be received
in writing, in the presence of two witnesses, by a judge, magistrate,
or notary, or by the parish priest, or other ecclesiastic in holy
orders.
(2) Such will shall in all cases be, on pain of nullity, signed by
the person receiving it.
(3) Such will shall, moreover, on pain of nullity, be signed,
where practicable, by the testator and the witnesses. If under the
circumstances the signing of the will by the testator and the
witnesses is not practicable, there shall, on pain of nullity, be
entered in the will a declaration stating the reason for which such
signatures have not been affixed.
(4) In any such will, any person of either sex, provided he or
she has attained the age of eighteen years, may act as a witness. 
When such will 
becomes void.
674.   Any such will shall become void on the lapse of two
months from the day on which communications with the place in
which the testator is, shall have been re-established, or from the
day on which the testator shall have removed to any place with
which communications are not interrupted, provided the testator is
still alive after the lapse of the said time.
     CIVIL CODE            ġ CAP. 16.             141
Person receiving 
such will to deposit 
it in court of 
voluntary 
jurisdiction.
675. (1) A   will made in accordance with the provisions of the
foregoing articles shall, within a month from the day on which
communications shall have been re-established, be deposited by the
person receiving it in the registry of the court of voluntary
jurisdiction of the island in which it has been received unless such
will shall have been, before the expiration of such time, withdrawn
by the testator.
(2) Any person acting in contravention of the provisions of this
article shall, on proceedings taken in accordance with the
provisions of article 661, be liable to the punishments therein
mentioned, in so far as such punishments may be applicable.
Wills made at sea.
Malta, may be received, in writing, by the master, or the person
acting in his stead.
(2) A   will made by the master may be received by the person
who in his absence, would have the command of the ship.
(3) In all cases, the will shall be received in duplicate, and in
the presence of two male witnesses who have attained the age of
eighteen years.
(4) Non-compliance with any of the foregoing requirements
shall render the will null and void.
By whom such 
wills are to be 
signed.
677 . (1) The will referred to in the last preceding article shall
be signed by the testator, by the person receiving it, and by the
witnesses.
(2) Where the testator or the witnesses do not know how to, or
cannot write, there shall be entered in the will a declaration stating
the reason for which such signature was not affixed.
(3) Non-compliance with the provisions of this article shall
render the will null and void.
Entry relating to 
the receipt of any 
such will to be 
made in log-book 
and muster-roll.  
Amended by: 
XIII.1983.5.
678.  The master, or the person keeping the log-book and the
ship’s papers, shall, under penalty of a fine ( multa )   not exceeding
ten liri, recoverable by civil proceedings as provided in article 661,
make and sign an entry relating to the receipt of such will, both in
the log-book and in the muster-roll.
Duty of master, 
etc., on return to 
Malta to present 
will to Civil Court, 
Second Hall.  
Amended by: 
XXXI.1965.21; 
IX.1971.3; 
LVIII.1974.68; 
L.N. 148 of 1975; 
XVII.1991.81.
679. (1) Where, after the receipt of any such will, the ship
returns to the port of Malta, the master, or the person in possession
of the will, shall, within the time of eight working days, present
such will to the Civil Court, Second Hall, unless such will shall
have been, before the expiration of such time, withdrawn by the
testator.
Where vessel 
touches at port 
outside Malta.
(2) If the ship touches at any port outside Malta, the master, or
the person in possession of the will, shall deposit one of the
duplicates with the diplomatic or consular representative of the
Government of Malta in that port or with a person serving in a
diplomatic, consular or other foreign service of any country which,
142               CAP.16. ħ                CIVIL CODE
by arrangement with the Government of Malta, has undertaken to
represent that Government’s interests in that port or with a person
authorized in that behalf by the President of Malta, or in the
absence of such persons, with some trustworthy person being a
citizen of Malta or other Commonwealth citizen, and shall, with all
possible dispatch, transmit the other duplicate to the Malta
Maritime Authority at Malta who shall, within the time of eight
days, present it to the said court.
(3) Any person acting in contravention of any of the provisions
of this article shall, on proceedings taken in accordance with the
provisions of article 661, be liable to interdiction from his office or
profession for a time not exceeding two years, or to any of the other
punishments prescribed in that article.
Will made at sea to 
have effect only if 
testator dies at sea, 
etc.
680.   A   will made at sea in the manner prescribed in article 676
and the articles following, shall have effect only if the testator dies
at sea or within two months after he shall have landed in a place
where he could have made another will in the ordinary form.
Nullity of 
dispositions made 
in favour of person 
receiving will, etc.
681. (1) Any testamentary disposition made in favour of the
person receiving any of the wills referred to in article 673 and the
articles following, or in favour of the witnesses, or, in the case of a
will made at sea, in favour of any member of the crew, shall be
void.
(2) Any disposition in favour of the father, the mother, the
child or other descendant, or the spouse of any of the persons
referred to in sub-article (1) of this article shall likewise be void.
Effect of wills 
made outside 
Malta.
682.   A   will made outside Malta, shall have effect in Malta,
provided it is made in the form prescribed by the law of the place in
which the will is made.
§  V. O F THE  I NSTITUTION OF  H EIRS, OF  L EGACIES, AND 
OF THE  R IGHT OF  A CCRETION
O F THE  I NSTITUTION OF  H EIRS, AND OF  L EGACIES
Institution of heir. 683.   Any testamentary disposition, whether made under the
designation of institution of heir, or under the designation of
legacy, or under any other designation whatsoever, shall have
effect, provided it be so expressed that the intention of the testator
may be ascertained, and it be not contrary to the provisions of this
Code.
Where only a 
portion of 
inheritance is 
disposed of.
684. (1) If the testator has disposed only of a portion of the
inheritance, the residue thereof shall vest in his heirs-at-law,
according to the order established in the case of intestate
succession.
(2) The same rule shall apply if the testator has only made
singular legacies.
     CIVIL CODE            ġ CAP. 16.             143
Where reason 
constituting sole 
inducement of 
disposition is false.
685. (1) Any testamentary disposition founded on a reason
which constituted the sole inducement of the testator, and which is
false, shall have no effect.
(2) If the testator has stated a reason, and the indications of the
will are not such as to show that such reason was the sole
inducement, the testamentary disposition, even if such reason is
proved to be false, shall have effect, unless it is proved that the
testator was solely induced by the reason stated in the will.
O F  P ERSONS AND  T HINGS FORMING THE SUBJECT OF A 
D ISPOSITION
Wills  per 
relationem ad 
schedulam  are 
void.
686.   Any testamentary disposition made, by what is commonly
known as implied nuncupation, or  per relationem ad schedulam  is
void.
Disposition in 
favour of person 
uncertain.
687.  Any testamentary disposition in favour of a person so
uncertain that he cannot be identified even upon the happening of a
contingency referred to in the will, is also void.
Disposition in 
favour of person or 
body corporate to 
be designated by 
heir or third party.
688. (1) Any testamentary disposition made in favour of an
uncertain person to be designated by the heir or by a third party is
likewise void.
(2) Nevertheless, it shall be lawful to make a testamentary
disposition by singular title in favour of a person to be selected by
the heir or by a third party among several persons specified by the
testator, or belonging to families, or bodies corporate, specified by
him.
(3) It shall likewise be lawful to make a disposition by singular
title in favour of a body corporate to be selected by the heir or by a
third party, among several bodies corporate specified by the
testator.
Disposition in 
favour of next of 
kin.
689.   A   testamentary disposition made in favour of the nearest
relation of a person shall, in default of any other designation, be
deemed to have been made in favour of the persons in whom the
intestate succession of the said person would legally vest.
Disposition in 
favour of the poor.
690.   A   disposition made in general terms in favour of the poor,
shall be deemed to be made in favour of the poor of the island in
which the testator resided at the time of his death.
Disposition in 
favour of testator’s 
soul. 
691.   Any disposition made in general terms in favour of the
soul of the testator or of any other person shall, if the pious use has
not been specified, have no effect.
Inadmissibility of 
evidence to show 
that the words of 
the will are 
contrary to the 
intention of the 
testator.
692. (1) No evidence is admissible which is intended to show
that the institution or legacy, made in favour of any person, or body
corporate, or for any use specified in the will, is merely fictitious,
and that such institution or legacy is in reality made in favour of a
person or body corporate, or for a use, not disclosed in the will,
notwithstanding any expression contained in the will calculated to
constitute an indication or a presumption of any such intention.
144               CAP.16. ħ                CIVIL CODE
(2) The provisions of this article shall not apply in any case in
which the institution or legacy is impeached on the ground that
such institution or legacy was made through intermediaries in
favour of persons under a disability.
Fiduciary 
dispositions.
693.   Any testamentary disposition whereby even a sum of
money or any other determinate thing is bequeathed to a person
designated in the will for the purpose of making such use thereof as
the testator shall have declared to have confided to such person,
shall be null, even though such person shall offer to prove that such
disposition is in favour of persons capable of receiving property by
will, or for lawful purposes.
Erroneous 
designation of heir, 
legatee or thing 
disposed of.
694. (1) If the person of the heir or of the legatee is
erroneously designated, the testamentary disposition shall have
effect, if the identity of the person whom the testator intended to
designate is otherwise certain.
(2) The same rule shall apply where the thing forming the
subject of the legacy shall have been erroneously indicated or
described, if it is otherwise certain what thing the testator wished to
dispose of.
Disposition left 
entirely to the 
discretion of the 
heir.
695.   Any testamentary disposition giving to the heir or to a
third party absolute discretion in fixing the quantity of the legacy is
null, except where it is a legacy made by the testator by way of
remuneration for services rendered to him during his last illness.
Legacy of thing 
belonging to 
others.
696. (1) Where the thing forming the subject of a legacy
belongs to a person other than the testator, such legacy shall be
null, unless it is stated in the will that the testator knew that the
thing was not his property, but the property of others, in which case
the heir may elect either to acquire the thing bequeathed in order to
make delivery thereof to the legatee, or to pay to such legatee the
fair value thereof.
(2) Where, however, the thing so bequeathed, although
belonging to others at the time of the will, is the property of the
testator at the time of his death, the legacy shall be valid.
Legacy of thing 
belonging to heir 
or legatee.
697.  The provisions of the last preceding article shall also
apply if the thing forming the subject of the legacy belongs to the
heir, or to the legatee required under the will to give it to a third
party.
Where a part only 
of the thing 
bequeathed 
belongs to the 
testator.
698.  Where a part of the thing bequeathed, or a right over such
thing, belongs to the testator, the legacy of such thing shall be valid
only to the extent of such part or right, unless it is stated in the will
that the testator knew that the thing did not wholly belong to him.
Legacy of an 
indeterminate 
thing.
699.   Where the thing forming the subject of a legacy is an
indeterminate movable thing included in a genus or species, such
legacy is valid, even though no thing pertaining to such genus or
species existed in the estate of the testator at the time of the will or
is found to exist at the time of the death of the testator.
     CIVIL CODE            ġ CAP. 16.             145
Where thing 
bequeathed is not 
found to exist in 
estate of testator.
700. (1) Where the testator shall have bequeathed as belonging
to him any determinate thing, or any thing included in a given
genus or species, the legacy shall have no effect, if the thing is not
found to exist in the estate of the testator at the time of his death.
(2) If the thing is found to exist in the estate of the testator at
the time of his death, but not in the quantity specified in the will,
the legacy shall have effect to the extent of the quantity so existing.
Legacy of thing or 
quantity to be 
taken from a 
specified place.
701.   Where the subject of the legacy is a thing or a quantity to
be taken from a specified place, such legacy shall only have effect
if such thing is found therein; and, if only a part thereof is found in
the place specified by the testator, it shall only have effect to the
extent of such part.
Legacy of a thing 
belonging to 
legatee.
702. (1) Where the subject of the legacy is a thing which, at
the time of the will, was already the property of the legatee, such
legacy shall be null.
(2) If the legatee shall have acquired the thing forming the
subject of the legacy at any time after the will, either from the
testator himself under an onerous title, or from any other person
under any title whatsoever, he shall, in the event of the existence of
the circumstances referred to in article 696 be entitled to claim the
value of such thing, notwithstanding the provisions of article 743.
(3) Where the legatee shall have acquired the thing from the
testator under a gratuitous title, the legacy shall be considered to be
adeemed.
Legacy of a debt 
due to testator.
703.   Where the subject of the legacy is a sum owing to the
testator, or consists in discharging a debtor from a debt due to the
testator, the legacy shall only have effect with regard to such
portion of the debt as shall still be owing at the time of the death of
the testator.
Legacy of a thing 
or sum as due by 
testator to legatee.
704. (1) Where the testator bequeaths by way of legacy any
determinate thing or sum, as due by him to the legatee, the legacy is
valid, even though such thing or sum is not due.
(2) If such thing or sum is due by the testator, the legatee
acquires a new action for the recovery of the thing or sum due to
him, and, where otherwise the thing or sum would not have been
exigible except after the lapse of a certain time, or if the payment
thereof was dependent upon the fulfilment of a condition, the
legatee shall not be bound to wait until the expiration of such time,
or the fulfilment of such condition.
(3) The legacy, however, shall be ineffectual if the testator
shall pay the debt at any time after the will.
Legacy of debt to 
creditor.
705. (1) Where the testator, without mentioning the debt due
by him, makes a legacy in favour of his creditor, such legacy shall
not be deemed to have been made in satisfaction of the debt due to
the legatee.
Legacy to servant.
to have been made in satisfaction of his wages.
146               CAP.16. ħ                CIVIL CODE
Legatum 
liberationis  to 
include only debts 
due at the time of 
the will.
706.   Where the legacy consists in discharging the debtor from
the debts due by him to the testator, such legacy shall be deemed to
include only such debts as were due to the testator at the time of the
will, and not such other debts as may have been subsequently
contracted.
Legacy of 
maintenance.
707.   A legacy of maintenance shall include food, clothing,
habitation, and other necessaries during the life of the legatee; and
it may also, according to circumstances, include the education of
the legatee according to his condition.
Legacy of 
immovable 
increased by 
subsequent 
acquisitions.
708.   Where the testator who has bequeathed the ownership of
an immovable property, has subsequently increased such property
by further acquisitions, such acquisitions, even though contiguous,
shall not be deemed to form part of the legacy, unless a fresh
bequest is made.
Pre-legacy to heir. 709.   The testator may leave a pre-legacy to his heir and, in any
such case, the heir, with regard to such pre-legacy, shall be
considered as a legatee.
O F  C ONDITIONAL OR  L IMITED  D ISPOSITIONS
Dispositions may 
be pure or 
conditional.
710.   Any disposition, by universal or singular title, may be
either pure or conditional.
Impossible 
conditions, etc.
711. (1) Where the condition is impossible, or contrary to law
or morals, it shall vitiate the disposition to which it is attached.
(2) Where the condition is unintelligible it shall be considered
as if it had not been attached.
Condition in 
restraint of 
marriage.
712. (1) A   condition prohibiting a first or a subsequent
marriage shall be considered as if it had not been attached.
(2) Nevertheless, where a legacy consisting in a right of
usufruct, use, or habitation, or in a pension or other periodical
payment, is contingent on the legatee remaining, and limited to the
period during which he or she remains a bachelor or spinster, or a
widower or widow, the legatee shall be entitled to enjoy the legacy
only as long as he or she shall remain a bachelor or spinster, or a
widower or widow.
(3) A condition in restraint of remarriage, attached to a
testamentary disposition by one of the spouses in favour of the
other, shall be valid.
Condition 
restraining heir 
from availing 
himself of benefit 
of inventory.
713.   Any condition restraining the heir from availing himself of
the benefit of inventory shall be considered as if it had not been
attached.
Limitation of com-
mencement or ces-
sation of institution 
of heir. 
714.   If, in any testamentary disposition by universal title, the
testator shall fix a day on or from which the institution of the heir
shall commence or cease, such limitation shall be considered as if it
had not been attached.
     CIVIL CODE            ġ CAP. 16.             147
Disposition on 
condition of 
mutual benefit, is 
null.
715.   Any testamentary disposition, whether by universal or
singular title, made by the testator on condition that he shall in
return benefit by the will of the heir or legatee, is null.
Disposition 
depending upon an 
uncertain event.
716.   Any testamentary disposition made subject to a condition
depending upon an uncertain event, and being such that, in the
intention of the testator, the validity thereof is dependent upon the
happening or non-happening of such event, shall be ineffectual if
the person, in whose favour it is made, dies before the fulfilment of
the condition.
Condition 
suspending the 
execution of the 
disposition.
717.   A   condition which, in the intention of the testator, is
merely meant to suspend the execution of the testamentary
disposition, shall not operate so as to bar the heir or legatee from
acquiring, even before the fulfilment of the condition, a vested
right transmissible to the heirs of such heir or legatee.
Where heir or 
legatee is bound to 
give security for 
fulfilment of 
condition. 
718.   If the testator has left the inheritance or legacy subject to
the obligation that the heir or legatee shall forbear from doing or
from giving a specified thing, the heir or legatee shall be bound to
give sufficient security, for the fulfilment of such obligation, by
means of sureties or by means of a hypothecation or pledge in
favour of the persons in whom, in case of non-fulfilment, the
inheritance or legacy would vest.
Person charged 
with delivery of 
conditional legacy 
must give security.
719.   Likewise, where a legacy is bequeathed conditionally, or
as not exigible before a certain time, the person charged with the
payment of the legacy, may be compelled to furnish security as
aforesaid in favour of the legatee.
Appointment of 
administrator in 
certain cases.
720. (1) If the heir has been instituted subject to a condition of
the nature of those mentioned in article 716, there shall be
appointed an administrator of the inheritance until such condition is
fulfilled or it is certain that it cannot be fulfilled.
(2) An   administrator shall also be appointed when the heir or
the legatee fails to give the security required under the last two
preceding articles, as well as in the case in which the instituted heir
is the immediate issue, as yet unconceived, of a person living at the
time of the death of the testator as provided in article 600.
(3) Such administrator shall have the same powers and duties
as the curator of a vacant inheritance, subject to any other direction
which, according to circumstances, the court shall deem fit to give.
O F THE  E FFECTS OF  L EGACIES AND OF THE  P AYMENT THEREOF
Right to receive 
pure and simple 
legacy, 
transmissible to 
heirs of legatee.
721 . (1) Any pure and simple legacy shall vest the legatee, as
from the day of the death of the testator, with the right to receive
the thing bequeathed, transmissible to the heirs of such legatee, or
to any person claiming under him.
(2) Where the legacy is made conditionally, such right shall not
vest in the legatee before the fulfilment of the condition.
148               CAP.16. ħ                CIVIL CODE
Rule as to selection 
of thing, where 
legacy is in respect 
of an indeterminate 
thing. 
722. (1) Where the subject of the legacy is an indeterminate
thing, included in a given genus or species, the right of selection
shall belong to the heir, who cannot be compelled to deliver a thing
of the best quality, but cannot offer a thing of the worst quality.
(2) The same rule shall apply where the right of selection is left
to a third party.
(3) Where such third party refuses or is, in consequence of
death or other impediment, unable to make the selection, such
selection shall be made by the court, according to the rule laid
down in sub-article (1) of this article.
Where a right of 
selection is left to 
the legatee. 
723.  Where the right of selection is left to the legatee, he may
select the best of the things of the given genus or species existing in
the inheritance: but if there be none, he cannot select one of the
best quality.
Right of selection 
in alternative 
legacies.
724.  In the case of alternative legacies, the right of selection
shall be deemed to be given to the heir.
When right of 
selection passes to 
heir of heir or 
legatee.
725. (1) Where the heir or legatee to whom the right of
selection belongs, has not been able to make such selection, the
right thereof shall vest in his heir.
(2) The selection, once made, shall be irrevocable.
(3) Even where in the estate of the testator there shall be only
one of the things included in the genus or species, the heir or
legatee having the right of selection, shall not, in the absence of an
express disposition to the contrary, be entitled to select other than
the thing existing in the estate.
Legatee to demand 
of heir delivery of 
thing bequeathed.
726.   The legatee must demand of the heir possession of the
thing bequeathed.
Fruits of or interest 
on legacy.
727.   It shall not be lawful for the legatee to claim the fruits of,
or interest on the legacy, except from the day on which he shall
have, even by a judicial letter, called upon the heir to deliver or pay
the legacy, or from the day on which the delivery or payment shall
have been promised to him.
When fruits or 
interest accrue in 
favour of legatee, 
immediately on 
death of testator.
728.   The interest on, or the fruits of, the thing bequeathed,
shall, even in the absence of a judicial intimation, as prescribed in
the last preceding article, accrue in favour of the legatee
immediately upon the death of the testator in any of the following
cases:
( a ) where the testator shall have expressly so directed;
( b ) where the subject of the legacy is a tenement, or a
capital sum, or any other thing producing fruits.
Legacy of life 
annuity or pension.
729.   Where the subject of a legacy is a life annuity or a
pension, such annuity or pension shall commence to run from the
day of the death of the testator.
     CIVIL CODE            ġ CAP. 16.             149
When subject of 
legacy is a 
determinate 
quantity to be 
delivered or paid at 
fixed periods.
730. (1) Where the subject of the legacy is a determinate
quantity to be delivered or paid at fixed periods, as every year,
every month or at other periods, the first period shall commence to
run from the death of the testator, and the legatee shall acquire the
right to the whole quantity due for each of the periods, even though
he may have been alive at the commencement only of the said
period.
(2) Nevertheless, the legacy unless it is by way of maintenance
cannot be claimed until after the expiration of the period.
(3) If the legacy is by way of maintenance, it can be claimed at
the commencement of the period.
Thing bequeathed 
to be delivered 
with accessories.
731. (1) The thing forming the subject of the legacy shall be
presumed to have been bequeathed, and shall be delivered, with its
necessary accessories and in the condition in which it shall be on
the day of the death of the testator.
(2) The contrary shall be presumed with regard to
embellishments or to new constructions made in the tenement
bequeathed, or to a tenement of which the testator shall have
enlarged the boundary, including therein new acquisitions.
Where thing 
bequeathed is 
charged with a 
right of usufruct, 
etc.
732. (1) Where before the will is made or subsequently, a right
of usufruct, an annuity, or any other perpetual or temporary burden,
shall have been imposed on the thing bequeathed, the legatee shall
receive the thing as so encumbered.
(2) Where the thing bequeathed is charged with a hypothec in
respect of any other debts, the person who is to pay the legacy
shall, unless the testator has otherwise directed, be bound to
disencumber it.
Expense for 
delivery of legacy.
733.  The expense necessary for the delivery or payment of the
legacy shall be charged to the estate, provided this shall not
prejudice the rights of the persons in whose favour the law reserves
a portion of the hereditary property.
By whom legacy is 
to be paid.
734. (1) Where no one of several heirs has been particularly
charged by the testator with the payment of the legacy, all the heirs
shall be liable for the payment thereof, each in proportion to his
share in the succession.
(2) They shall also be liable for the whole, to the extent of the
value of any immovable property of the estate which they hold.
Where one of the 
heirs is particularly 
charged with the 
payment of the 
legacy.
735. (1) Where any one of the heirs has been particularly
charged with the payment of the legacy, he alone shall be liable for
such payment.
(2) Where the subject of the legacy is a thing belonging to one
of the co-heirs, the other co-heirs shall, unless a contrary intention
of the testator is shown, compensate such co-heir for its value,
either in cash or in hereditary property, each in proportion to his
share of the inheritance, provided such legacy is not void, in whole
or in part, under articles 696, 697 and 698.
150               CAP.16. ħ                CIVIL CODE
Testator may 
declare pension or 
usufruct not 
subject to 
attachment.
736. (1) It shall be lawful for the testator, in bequeathing a
pension or a usufruct, to declare such pension or usufruct as not
liable to attachment under a garnishee order, and even inalienable,
wholly or in part.
(2) Any such declaration, if made in general terms, shall be
operative even where the garnishee order is applied for, or the
alienation is sought to be made or is demanded, in respect of debts
incurred by the legatee after he has commenced to enjoy the legacy.
O F THE  R IGHT OF  A CCRETION
Right of accretion. 737.   Saving the provisions of article 745 and article 866, where
two or more persons have been instituted heirs or named as legatees
conjointly, and any one of such persons predeceases the testator, or
is incapable of receiving, or refuses the inheritance or the legacy,
or has no right thereto owing to the non-fulfilment of the condition
under which he was so instituted or named, the share of such
person, with the obligations and burdens attaching to it, shall
accrue to that of the other co-heirs or co-legatees.
Institution or 
legacy deemed to 
be made conjointly 
if it depends upon 
one and the same 
disposition, etc. 
738. (1) An institution or a legacy is deemed to be made
conjointly, if it depends upon one and the same disposition, and the
testator shall not have specified the share of each co-heir or co-
legatee in the inheritance or in the thing bequeathed.
(2) The shares are deemed to have been specified, only if the
testator has expressly fixed the share of each. The words "in equal
parts" or "in equal portions" alone shall not operate so as to bar the
right of accretion.
Legacy is also 
deemed to be made 
conjointly if thing 
bequeathed is not 
divisible.
739.  A legacy is likewise deemed to be made conjointly if a
thing which cannot be divided without injury has been bequeathed
by one and the same will to two or more persons, even separately.
Co-heir or co-
legatee may not 
refuse accrued 
share unless he 
renounces original 
share. 
740.   Where the right of accretion takes place, it shall not be
lawful for the co-heir or the co-legatee to refuse the accrued share,
unless he shall renounce his own original share.
Vesting of vacant 
portion of 
inheritance or 
legacy, when 
accretion does not 
take place.
741.   Where the right of accretion does not take place, the
vacant portion of the inheritance, with such obligations and
burdens as attach to it, shall vest in the heirs-at-law of the testator,
and the vacant portion of the legacy, with such obligations and
burdens as attach to it, shall, where any of the heirs or any legatee
was particularly charged with the payment of the legacy, vest in
such heir or legatee, or, where the inheritance was so charged, in all
the heirs, in proportion to the share of each in the inheritance.
Where usufruct is 
bequeathed to two 
or more persons 
conjointly.
742. (1) Where a right of usufruct is bequeathed to two or
more persons conjointly, as provided in articles 738 and 739, the
provisions of article 382 shall apply, even after the acceptance of
the legacy.
     CIVIL CODE            ġ CAP. 16.             151
(2) Where the usufruct is not bequeathed to such persons
conjointly, the vacant portion shall merge in the ownership.
O F THE  R EVOCATION AND  L APSE OF  T ESTAMENTARY 
D ISPOSITIONS
Alienation by 
testator of thing 
bequeathed 
operates as a 
revocation of 
legacy. 
743. (1) Any alienation of the thing bequeathed whether in
whole or in part, made by the testator, even though made by way of
sale with the reservation of the power of redemption, or by way of
exchange, shall operate as a revocation of the legacy in regard to
the subject of the alienation, notwithstanding that such alienation
be void, or simulated, or that the thing itself come again to belong
to the testator.
(2) The same rule shall apply if the testator has converted the
thing bequeathed into another in such a manner that it has lost its
previous form and designation.
Where thing 
bequeathed 
perishes.
744. (1) The legacy shall lapse if the thing bequeathed has
entirely perished during the lifetime of the testator.
(2) The same rule shall apply if the thing has perished after the
death of the testator, without the agency or fault of the heir, even
though such heir may have been put in default for delay in the
delivery thereof, provided the thing would have equally perished in
the possession of the legatee.
(3) Where several things have been alternatively bequeathed,
the legacy shall subsist, even though there shall remain one only of
such things.
Effect of 
testamentary 
disposition in case 
of predecease of 
person benefited.
745. (1) A   testamentary disposition shall lapse, if the person in
whose favour it is made shall not survive the testator.
(2) Nevertheless, the descendants of the heir or legatee shall
succeed in his place to the inheritance or legacy whenever, in case
of intestacy, they would have benefited by the rule of
representation, unless the testator has otherwise directed, or unless
the subject of the legacy is a right of usufruct, use, or habitation, or
any other right which is of its own nature personal.
Where heir or a 
legatee renounces 
disposition.
746.   A   testamentary disposition shall lapse with regard to the
heir or legatee who renounces it, or who is incapable of taking.
Revocation of 
disposition by the 
subsequent birth of 
children to the 
testator, 
747. (1) Any testamentary disposition, whether by universal or
singular title, made by a person who, at the date of the making of
the will, had no children or other descendants, or was not aware
that he had any children or other descendants, shall  ipso jure  be
revoked, if there is found to exist or there is born after the will any
legitimate child or descendant of the testator, even though
posthumous, or a child or descendant legitimated by a subsequent
marriage or adoptive.
(2) The same rule shall apply, even though the child or
152               CAP.16. ħ                CIVIL CODE
descendant of the testator shall have already been conceived at the
time of the making of the will, or, in the case of a legitimated child,
even though such child shall have already been acknowledged
before the will, and only afterwards legitimated.
unless testator 
makes provision 
for such 
contingency.
748.   The revocation of the will, on any of the grounds
mentioned in the last preceding article, shall not take place if the
testator shall have made provision for the contingency of the
existence or subsequent birth of children or descendants, or if the
children or descendants found to exist or subsequently born shall
predecease the testator.
Right of children 
born after the 
making of the will.  
Amended by: 
XXI.1962.13.
749.   Where at the time of the making of the will, the testator
has one or more children or descendants, legitimate, or legitimated
by subsequent marriage, or adoptive, and thereafter other children
or descendants are born or adopted, each of the latter shall be
entitled to a share of the estate equal to that which, upon the
proportional abatement of all the shares left to the former, is found
to be due to the child or descendant least favoured in the will.
Preterition of 
children of testator 
of whose existence 
he was aware does 
not void 
disposition.
750. (1) The preterition of children or descendants of whose
existence the testator was aware shall not operate so as to void the
disposition, saving the right of the children or descendants so
passed over to legitim to which they may be entitled under this
Code.
(2) Nevertheless, until the contrary is proved, the testator shall
be deemed to have been unaware of the existence of such children
or descendants, and the provisions of article 747 shall apply.
§  VI. O F  S UBSTITUTION AND OF  E NTAILS
Substitutio 
vulgaris. 
751. (1) It shall be lawful for the testator to substitute another
person for the heir-institute or for the legatee, in the event of such
heir or legatee not being able or willing to accept the inheritance or
the legacy.
(2) Any such disposition is termed  substitutio vulgaris .
Substitution in the 
case of minors, 
imbeciles or insane 
persons.  
Amended by: 
XXI.1962.14.  
752. (1) It shall be lawful for the father, the mother, the other
ascendants, the uncle or aunt, brother or sister, to substitute a third
party in the place of a minor in the event of the latter dying without
issue, legitimate, adopted or legitimated by subsequent marriage,
before attaining the age of eighteen years, but only with regard to
the property in which such minor shall have been instituted heir or
appointed legatee.
(2) It shall also be lawful for any of the said persons to
substitute a third party in the place of any imbecile or insane
person, in regard to such property only as they shall have devised to
him, in the event of his dying in a state of imbecility or insanity,
without issue, legitimate, adopted or legitimated by a subsequent
marriage.
     CIVIL CODE            ġ CAP. 16.             153
(3) Any substitution referred to in this article, if made by the
father, the mother or any other ascendant by whom the legitim is
due to the heir-institute or legatee, may only include such portion
of the property as the minor, on attaining majority, or the imbecile
or insane person, if of sound mind at the time of his death, could
dispose of.
Substitution of 
several persons in 
the place of one, or 
vice versa.
753.   It shall be lawful to substitute under the provisions of the
preceding articles, several persons in the place of one, or one in the
place of several.
Where in the 
substitution clause 
only one of the two 
contingencies is 
stated. 
754.   Where in the substitution clause only one of the two
contingencies is stated, that is, either that the institute should be
unable, or that he should be unwilling to receive the inheritance or
legacy, the other contingency shall, unless the disponer shall have
stated the contrary, be deemed to be included.
Performance of 
obligations by sub-
stitutes.
755. (1) The substitute shall be bound to perform all such
obligations as may have been imposed on the party for whom he
shall have been substituted, unless it shall appear that the testator
wished to impose such obligations solely on the party called in the
first place.
(2) Nevertheless, such obligations as particularly affect the
person of the heir or legatee shall not, in the absence of an express
declaration to the contrary, be deemed to be operative in regard to
the substitution.
Proportion of 
shares in case of 
reciprocal 
substitution of 
heirs or legatees 
taking unequally 
among themselves.
756. (1) Where two or more co-heirs or legatees in unequal
shares shall have been reciprocally substituted, the proportion of
shares fixed by the first disposition shall be deemed to be operative
in regard to the substitution.
(2) Where the substitution includes another person in addition
to the persons called in the first place, the evacuated portion shall
vest in all the substitutes in equal shares.
Prohibition of 
entails. 
Cap. 12.
757. (1) Entails are prohibited:
Provided that entails created before the date of the
commencement of Ordinance No. IV of 1864, hereby repealed,
shall continue to be regulated by the provisions of the law in force
before that date including the provisions contained in Chapter II of
Book IV of the Municipal Code of Malta, commonly called "Code
De Rohan", saving the provisions of Title I of Part II of Book
Second of the Code of Organization and Civil Procedure.
(2) Any provision by which the heir or legatee is required to
preserve and return the inheritance or legacy to a third person shall
be considered as if it had not been written.
Provision  
restraining heir or 
legatee from 
alienating or from 
disposing by will, 
to be ineffectual.
758. (1) Any provision restraining the heir or legatee from
alienating or from disposing by will, shall, subject to the provisions
of article 736, be considered as if it had not been written.
(2) Nevertheless, it shall be lawful to bequeath the usufruct to
one person, and the  nuda proprietas  to another, subject, however,
to the provisions of article 331.
154               CAP.16. ħ                CIVIL CODE
Where usufruct is 
left to one person 
and ownership to 
another.
759.   Where the usufruct of a thing is left to one person, and the
ownership of the same thing to another person, under the condition
that the latter be still alive at the time of the cesser of the usufruct,
it shall be lawful to substitute a third person in the place of the
person in whose favour the ownership is devised in the event of
such condition not being fulfilled.
Disposition under 
condition that 
cannot be fulfilled 
before death of heir 
or legatee.
760.   It is not forbidden to institute heirs, or bequeath legacies
under a condition which cannot be fulfilled except at the time of the
death of the heirs or legatees, and to substitute others in their place
in the event of the non-fulfilment of the condition.
When annuities or 
other burdens in 
favour of more 
persons 
successively are 
permitted.
761. (1) Any perpetual or limited burden by reason of which
the whole usufruct of the inheritance or of the legacy, or a portion
of such usufruct, or any other annuity, is to be given to two or more
persons successively, shall be considered as if it had not been
written.
(2) Nevertheless, it is not forbidden to impose the payment of
an annuity, whether in perpetuity or for a limited time, for the
purpose of creating a sacred patrimony, or of being employed for
the relief of the poor, or in reward for virtue or merit, or for any
other purpose of public utility, even though the disposition be in
favour of persons belonging to a certain class or to certain families.
 §  VII. O F  T ESTAMENTARY  E XECUTORS
Appointment of 
executors by 
testator.
762.   It shall be lawful for a testator to appoint one or more
testamentary executors.
Who may be 
executor.
763.  No person who is under a disability to contract
obligations, may be a testamentary executor.
Minor.  
Amended by: 
XLVI.1973.58.
764.   A minor may not hold the office of testamentary executor
even though with the authority of the parent to whose authority he
is subject, or of his tutor or curator.
Executor cannot 
intermeddle with 
estate before 
confirmation.
765.   It shall not be lawful for any testamentary executor to
intermeddle with the administration of the estate before he is
confirmed by the court of voluntary jurisdiction of the island in
which the testator resided at the time of his death.
Recognizance to be 
entered into by 
executor.
766. (1) The court shall not confirm the testamentary executor
before he shall have entered into a recognizance in the records of
the court, with hypothecation of his property to be registered in the
Public Registry, faithfully to carry into effect the will of the
testator, and to render an account of his administration every year
or once only, as the court shall, according to circumstances, direct.
(2) The court may, on the demand of the executor, limit the
amount for which his property is to be hypothecated.
Inventory. 767.   It shall be in the power of the court, before confirming the
executor to require him to make up an inventory of the property
which he is charged to administer, or, a statement of such property
     CIVIL CODE            ġ CAP. 16.             155
to be verified by his oath, unless he shall have been exempted from
making such inventory or statement by the persons to whom the
property devolves, wholly or in part.
Executor cannot be 
exempted from 
rendering account.
768.   Any disposition calculated to exempt the testamentary
executor from the obligation of rendering an account shall be
inoperative.
Powers of executor 
pending procedure 
in confirmation.
769.   The executor may, pending the procedure in confirmation,
perform such acts as cannot without prejudice be delayed, and take
such measures as are necessary for the preservation of the estate.
Fee payable to 
executor.
770.   It shall be in the power of the said court, at any time, to
grant to the testamentary executor a moderate fee, regard being had
to the value of the estate to be administered by him, unless the
testator himself shall have made provision as to such fee, or the
executor shall have waived his right thereto.
Power of executor 
to sell property.
771. (1) The testamentary executor, for the purpose of paying
the debts of the estate or of discharging the legacies, may, in the
absence or insufficiency of funds in the estate, collect sums owing
to the estate, or, in default, sell property.
(2) Such sale shall be made by public auction, unless the heirs
agree, or the court, on the application of the executor, allows, that
the sale be made otherwise.
Heir may prevent 
sale.
772.   The heir may prevent the sale by offering the means with
which to pay the debts and discharge the legacies.
Office of executor 
not to descend to 
heirs.
773.   The office of the testamentary executor shall not descend
to his heirs.
More executors to 
act conjointly.
774.  Where the testator has appointed two or more testamentary
executors, they can only act conjointly, unless the testator shall
have authorized them to act even separately, in which case each
shall be responsible for his own act only.
Expenses incurred 
by executor to be 
borne by estate.
775.   The expenses incurred by the testamentary executor in the
discharge of his duties shall be borne by the inheritance.
Executor may 
renounce office. 
776. (1) The testamentary executor may, at any time, renounce
his office, even though he shall have already commenced to act as
executor.
(2) He may also on good cause shown be removed from office.
Power of court 
when two or more 
executors are 
appointed.
777. (1) Where the testator has appointed two or more
executors, and one or more has or have declined to accept the
office, or renounced it, or has or have been suspended or removed
therefrom, the said court may confirm the executor or executors
remaining, and authorize him or them to carry into effect the will as
if the testator had appointed him or them only, provided he or they
be considered fit by the court.
(2) The same rule shall apply in case of the death, absence, or
illness of one or more of the executors.
156               CAP.16. ħ                CIVIL CODE
Death, etc. of only 
executor - 
nominate or of all 
executors - 
nominate.
778.  In case of the death, absence, renunciation, or illness of
the only executor, or of all the executors-nominate, the execution
of the will shall vest in the heirs, unless the court of voluntary
jurisdiction, with the consent of such heirs, or, the court of
contentious jurisdiction, for just cause on the demand of any
interested party, shall have conferred the office upon another
person.
 §  VIII. O F THE  O PENING AND  P UBLICATION OF  W ILLS
Opening of secret 
will.  
Cap. 12.
779.   Any person claiming to have any interest in a secret will
may, upon the death of the testator being ascertained, demand the
opening of such will in the manner laid down in the Code of
Organization and Civil Procedure.
Applicability of 
s.779 to cases of 
long absence of 
testator, etc.
780.   The provisions of the last preceding article shall also
apply in any case where the competent court shall have adjudged
and declared that the testator is, in consequence of his long
absence, to be presumed to have died, as well as in any case where
the testator shall have taken the vows in a monastic order or in a
religious corporation of regulars.
§  IX. O F THE  R EVOCATION OF  W ILLS
Power of revoking 
will cannot be 
waived.
781. (1) No person may waive the power of revoking or
altering any testamentary disposition made by him.
(2) Any clause or condition purporting to waive such power,
shall be considered as if it had not been written.
Will may be 
revoked by 
subsequent will or 
notarial 
instrument.
782. (1) Saving the provisions of article 743 and the articles
following, a will may be revoked, wholly or in part, by a
subsequent will.
(2) It may also be revoked by any other act received by a notary
with the formalities required for the execution of notarial acts,
whereby the testator personally or through an attorney specially
authorized, declares that he revokes his will, wholly or in part.
Implied revocation 
of secret will.
783.  The mere withdrawal of a secret will from the notary, or,
in any of the cases referred to in articles 673 and 676 from the
person to whom the will shall have been delivered, or from the
registry of the court, or from the office of the consul wherein it
shall have been deposited, shall operate as an implied revocation of
the will.
Will if null cannot 
revoke previous 
will.
784.   A will which is void cannot have the effect of a notarial
act so as to revoke a previous will.
Revival of revoked 
disposition.  
785.   Any testamentary disposition which has been revoked, can
only revive by a fresh will.
     CIVIL CODE            ġ CAP. 16.             157
Implied revocation 
by subsequent 
contrary 
dispositions.
786.   Where a subsequent will has not expressly revoked a
previous will or previous wills, it shall annul such only of the
dispositions contained in the previous will or wills as shall be
shown to be contrary to, or inconsistent with, the new dispositions.
Revocation to sub-
sist, although sub-
sequent will lapses.
787.  The revocation made by a subsequent will shall be fully
operative even if such subsequent will lapses, by reason of the
predecease or disability of the heir-institute or legatee, or of the
renunciation of the inheritance or legacy.
Sub-title II
O F  I NTESTATE  S UCCESSIONS
G ENERAL  P ROVISIONS
When intestate 
succession takes 
place.
788.   Where there is no valid will, or where the testator has not
disposed of the whole of his estate, or where the heirs-institute are
unwilling or unable to accept the inheritance, or where the right of
accretion among the co-heirs does not arise, intestate succession
takes place, wholly or in part, by the operation of law.
Persons succeeding 
ab intestato. 
Amended by:
L.N. 148 of 1975.
789.   Intestate succession is granted in favour of the des-
cendants, the ascendants, the collateral relatives, the illegitimate
children and the spouse of the deceased, and the Government of
Malta, in the order and according to the rules hereafter laid down.
Rules regarding 
succession among 
relations.
790.   In regulating succession among relations, the law takes
into consideration the proximity of the relationship, and does not
consider either the prerogative of the line or the origin of the
property, except in the cases and in the manner expressly provided
for by law.
How proximity or 
relationship is 
determined.
791. (1) The proximity of relationship is established by the
number of generations.
(2) Each generation forms a degree.
(3) The series of degrees forms the line.
Direct line.
one from the other is called the direct line.
Collateral line.
one from the other, but from a common ancestor, is called the
collateral line.
Direct line may be 
descending or 
ascending.
793. (1) The direct line may be descending or ascending.
(2) The descending direct line connects the ancestor with those
who descend from him.
(3) The ascending direct line connects a person with those from
whom he descends.
Computation of 
degrees in the 
direct line.
794.   In the direct line, as many degrees are counted as there are
generations, not including the common ancestor.
158               CAP.16. ħ                CIVIL CODE
Computation of 
degrees in 
collateral line.
795 .  In the collateral line, the degrees are counted by the
generations, commencing from one of the relations up to, and
exclusive of, the common ancestor, and then from the latter down
to the other relation.
O F THE  C APACITY TO  S UCCEED
Persons incapable 
or unworthy of 
succeeding  ab 
intestato. 
796.   Persons who are incapable or unworthy of receiving under
a will, for the causes stated in this Code, are also incapable or
unworthy of succeeding  ab   intestato.
Other persons so 
incapable.
797.  Persons who, by fraud or violence, shall have prevented
the deceased from making a will, shall also be, as unworthy,
incapable of succeeding  ab intestato.
Applicability of ss. 
606 and 607. 
798.   The provisions contained in articles 606 and 607 shall
apply to any person who, for the causes stated in the last two
preceding articles, shall have become unworthy of succeeding  ab
intestato.
Children or 
descendants of 
persons excluded 
as unworthy.
799. (1) The children or descendants of a person excluded as
unworthy shall not be excluded by reason of the unworthiness of
their parent or ascendant, whether they succeed in their own right
or whether, in order to succeed, they have to stand, under the rule
of representation, in the place of the parent or ascendant so
excluded.
(2) Nevertheless, the father may in no case claim, over such
inheritance, either the usufruct or the administration which the law
grants to parents over the property of their children.
Members of 
monastic orders.
800.   With regard to members of monastic orders, or religious
corporations of regulars, their capacity or incapacity to succeed  ab
intestato  shall be governed by the same rules laid down in regard to
testamentary successions.
O F  R EPRESENTATION
Rule of 
representation,
801.   Representation operates so as to put the representative in
the place, degree, and rights of the person represented.
in the descending 
direct line.
802.   Representation in the descending direct line takes place  in
infinitum  and in all cases, whether the children of the deceased take
with the descendants of a predeceased child, or whether, all the
children of the deceased having predeceased him, the descendants
stand amongst themselves in equal or unequal degrees.
Representation 
does not take place 
between ascend-
ants.
803.   Representation does not take place between ascendants:
the nearest relation excludes the others.
Representation in 
collateral line.
804. (1) In the collateral line, representation is allowed in
     CIVIL CODE            ġ CAP. 16.             159
favour of children and descendants of brothers or sisters of the
deceased, whether such children or descendants take with their
uncles or aunts, or whether, all the brothers and sisters of the
deceased having predeceased him, the succession devolves to their
descendants in unequal degrees.
(2) If the children or descendants of brothers or sisters stand in
equal degree, they shall all take  per capita ,   without representation. 
Partition  per 
stirpes  and  per 
capita.
805. (1) In all cases in which representation is allowed, the
partition shall be made  per stirpes.
(2) Where in one and the same stock there are several branches,
the sub-partition shall be made  per stirpes  in each branch; and the
partition among the members of the same branch shall be made  per
capita.
No representation 
of persons who are 
alive.
806.   Representation cannot take place in regard to persons who
are alive, but only in regard to persons who are dead, or incapable
of succeeding, or who, by reason of a long period of absence, are,
in virtue of a judgment of the competent court, presumed to have
died.
Representation of 
person whose 
estate has been 
renounced. 
807. It shall be lawful to represent the person whose inheritance
has been renounced.
§  I. O F  R EGULAR  S UCCESSIONS
O F  S UCCESSION BY  L EGITIMATE  D ESCENDANTS
Succession to 
parents or other 
ascendants.
808. (1) Children or their descendants succeed to their father
and mother or other ascendants, without distinction of sex, and
whether they are the issue of the same marriage or of different
marriages.
(2) They succeed  per capita  when they are all in the first
degree; they succeed  per stirpes , when all, or some of them, take by
representation.
Definition of 
“legitimate 
children”. 
Amended by: 
XXI.1962.15.
809.   The expression "legitimate children" shall mean and
include legitimate children, children legitimated by subsequent
marriage, adopted children as well as the children of a marriage
discovered to be null by reason of an impediment which, at the time
of the procreation of such children, was unknown to either of the
parents and the expression "legitimate descendants" shall include
adopted children of persons themselves adopted.
O F  S UCCESSION BY  L EGITIMATE  A SCENDANTS
When parents 
succeed.
810.   Where the deceased has left neither children or other
descendants, nor brothers or sisters, or descendants from them, the
160               CAP.16. ħ                CIVIL CODE
succession devolves upon the father and mother of the deceased in
equal portions, or upon the parent who may have survived him.
When other 
ascendants 
succeed.
811. (1) Where the deceased has left no issue, nor parents, nor
brothers or sisters, nor descendants from brothers or sisters, but
only ascendants in the paternal and the maternal lines, standing in
an equal degree, the inheritance shall devolve, as to one moiety,
upon the ascendant or ascendants of the one line, and, as to the
other moiety, upon the ascendant or ascendants of the other line.
(2) Where such ascendants stand in a different degree, the
inheritance devolves upon the nearest ascendant, without any
distinction of line.
Reversion of 
certain property.
812. (1) Ascendants, even though they be not in a degree
enabling them to succeed, or have renounced the inheritance, shall
take back, to the exclusion of all others, such things as they may
have given, by way of dowry, to their daughters or descendants, or
otherwise given to their children or descendants, where such
daughters or descendants or, as the case may be, such children or
descendants have died without issue and without having disposed
of such things, provided such things still exist in kind in the
inheritance.
(2) If such things have been alienated, the ascendants shall be
entitled to the price thereof which may still be due; and shall,
moreover, succeed to any right of action which the deceased could
have exercised for the recovery of such things.
(3) The ascendants shall, however, be bound to contribute to
the payment of the debts of the inheritance in proportion to the
value of the property which they shall have obtained under the
provisions of this article.
(4) The provisions of this article shall only have effect if no
contrary agreement was made in the act by which the things were
given; and shall be without prejudice to any portion of the
succession which may be competent to the said ascendants on the
other property of the inheritance.
Where brothers or 
sisters of deceased 
or their 
descendants 
compete with 
parents or other 
ascendants.
813.   Where brothers or sisters of the deceased, or descendants
of predeceased brothers or sisters, whether of the half or full blood,
compete with the father and the mother, or, with the one of them
surviving, or, in default of both parents, with the ascendants, or the
nearest ascendant, in any such case the parents, the ascendants, the
brothers and sisters shall succeed  per capita ,   and in equal portions;
and the descendants of brothers or sisters, whether of the half or
full blood, shall succeed by right of representation,  per   stirpes .
O F  S UCCESSION BY  L EGITIMATE  C OLLATERALS
Succession of 
brothers or sisters 
in default of 
parents or issue.
814. (1) If the deceased has left neither issue, nor ascendants,
his brothers and sisters, whether of the half or full blood, and the
descendants of his predeceased brothers or sisters, of the half or
     CIVIL CODE            ġ CAP. 16.             161
full blood, shall be entitled to the succession.
(2) The brothers and sisters shall succeed  per capita ,   and their
descendants by right of representation  per   stripes.  
Other collaterals.
and descendants of brothers or sisters, the succession devolves
upon the uncles and aunts, and then upon the nearest collateral
relation, in whatever line such uncles, aunts, or collateral relation
may be.
Extent of 
succession 
between 
collaterals.
816.   Succession between collaterals shall not extend beyond
the twelfth degree.
§  II. O F  I RREGULAR  S UCCESSIONS 
O F THE  R IGHTS OF  I LLEGITIMATE  C HILDREN OVER THE 
P ROPERTY OF THEIR  P ARENTS, AND OF  S UCCESSION TO 
I LLEGITIMATE  C HILDREN DYING WITHOUT ISSUE.
Right of succession 
of illegitimate 
child, legitimated 
by decree of court, 
etc.,
817.  An illegitimate child has no right to the succession of his
parents, unless he has been legitimated by a decree of court, or
acknowledged in any of the modes referred to in article 640, or his
filiation has been declared by a judgment of the competent court.
if not legitimated 
by decree of court, 
etc. 
Amended by:
L.N. 148 of 1975.
818. (1) An illegitimate child who has not been legitimated by
a decree of the competent court, or acknowledged in any of the
modes referred to in article 640, shall, if there are others, excepting
the Government, called to the succession, be only entitled to a
share to be fixed in accordance with the provisions of articles 640,
641 and 642 relating to such children.
(2) Where there is no other person called to the succession, the
child shall, in preference to the Government, be entitled to the
whole inheritance.
Rule as to right of 
succession of 
illegitimate 
children, 
legitimated or 
acknowledged. 
Amended by: 
XLVI.1973.59.
819.   The right of succession of illegitimate children
legitimated by a decree of court, or acknowledged in any of the
modes referred to in article 640 shall be regulated as follows:
( a ) where the deceased has left such children or
descendants as are mentioned in paragraph ( a ) of sub-
article (1) of article 640, the said illegitimate children
shall be entitled to a share equal to that fixed in favour
of such children in the said paragraph;
( b ) where the deceased has left no such children or
descendants, but is survived by his parents or one of
them, or any other ascendant, or the spouse, the
illegitimate children shall be entitled to two-thirds of
the inheritance, and the remainder shall devolve upon
the parents, or ascendants, or spouse of the deceased:
 Provided that where both the spouse and the
ascendants survive the deceased, the remaining one-
162               CAP.16. ħ                CIVIL CODE
third of the inheritance shall devolve upon the spouse
to the exclusion of the ascendants;
( c ) where the deceased is not survived by any of the said
children or descendants, nor by ascendants, nor by the
spouse, the illegitimate children shall be entitled to the
whole of the inheritance.
Collation by 
illegitimate 
children.
820.   The illegitimate child shall impute to the portion to which
he succeeds any property which he may have received from the
deceased, and which is, of its nature, subject to the collation under
any of the provisions of articles 913 to 938.
Legitimate 
children of 
predeceased 
illegitimate child.
821.   The legitimate children and descendants of a predeceased
illegitimate child may claim the rights competent to such child
under the foregoing articles.
Illegitimate 
children have no 
right over property 
of relations of their 
parents.
822.   An   illegitimate child even though acknowledged or
legitimated otherwise than by subsequent marriage, shall have no
right over the property of the relations of either of his parents; nor
shall such relations have any right over the property of the
illegitimate child.
Succession to 
property of 
illegitimate child 
dying without issue 
or spouse.
823.   Where the illegitimate child dies without leaving issue, or
spouse, the inheritance of such child devolves upon the parent
whose child, whether by legitimation, or acknowledgment or a
judgment of the competent court, he is proved to be, or upon both
parents, in equal shares, if, in any of the modes aforesaid, he is
proved to be the child of both of them.
Succession to 
property of 
illegitimate child 
dying without 
issue, but survived 
by spouse.
824.   Where the illegitimate child dies without issue, but is
survived by the spouse, the inheritance shall devolve, as to two-
thirds, upon the surviving spouse, and, as to the remaining third,
upon the father or mother of such child, or upon both father and
mother in equal shares, as the case may be, according to the
provisions of the last preceding article.
O F THE  R IGHTS OF THE  S URVIVING  S POUSE
Rights competent 
to surviving spouse 
by person leaving 
children.  
Substituted by: 
XXI.1993.73.
825.   Where the deceased leaves such children or descendants as
are mentioned in article 631, the surviving spouse shall only have
the rights granted under the provisions of the said article and of
articles 632, 633A, 634 and 635, and the provisions of article 637
shall also apply.
Rights competent 
to surviving spouse 
of person dying 
without issue but 
survived by 
ascendants or 
illegitimate 
children, etc. 
Substituted by: 
XLVI.1973.60. 
Amended by: 
XXI.1993.74.
826. (1)   Where the deceased is not survived by such children
or descendants as are mentioned in article 631, the surviving
spouse shall be entitled to the right of habitation referred to in
article 633A, and with regard to the property of the deceased
spouse not subject to such right of habitation -
( a ) if the deceased is survived by illegitimate children
legitimated or acknowledged as provided in article
819, the surviving spouse shall be entitled to a third
part of the property of the deceased in full ownership
     CIVIL CODE            ġ CAP. 16.             163
as provided in that article;
( b ) if the deceased is not survived by illegitimate children
as aforesaid, but is survived by ascendants, or by
brothers or sisters or their descendants, the surviving
spouse shall be entitled to one-half of the property of
the deceased in full ownership.
(2) The rule laid down in paragraph  (b)  of sub-article (1) of this
article shall also apply when, besides the ascendants there are
brothers or sisters of the deceased or their descendants; and in such
case the provisions of article 813 shall apply to the remaining half
of the property of the deceased.
Rights competent 
to surviving spouse 
of person dying 
without issue, and 
not survived by 
ascendants, or 
illegitimate 
children, etc.  
Substituted by: 
XLVI.1973.61.
827.   On failure of all the persons mentioned in the last
preceding article, the surviving spouse shall be entitled to the
whole of the inheritance, after deducting therefrom such portion as,
under the provisions of article 818, may be competent to
illegitimate children not legitimated nor acknowledged.
Surviving spouse 
to bring into 
account property 
received from 
deceased.
828.   Where there are other heirs, the spouse shall impute to the
portion to which he or she is entitled, any property which he or she
may have received from the deceased by any gratuitous title, even
by donation in contemplation of marriage, including, if the
surviving spouse is the wife, the dower.
Where spouses are 
separated. 
Amended by: 
XXI.1993.75.
829.   The rights of succession mentioned in articles 825, 826
and 827 shall not be competent to the surviving spouse, if at the
time of the death of the deceased party, the spouses were separated
by a judgment of the competent civil court and the surviving spouse
had, under the provisions of articles 48, 51 and 52 of this Code,
forfeited the rights therein mentioned.
O F THE  R IGHTS OF THE  G OVERNMENT
Rights of 
succession 
competent to 
Government of 
Malta.  
Amended by: 
L.N. 148 of 1975.  
830.   Where the deceased is not survived by any of the persons
entitled to succeed under the rules laid down in the foregoing
articles, the inheritance shall devolve upon the Government of
Malta.
164               CAP.16. ħ                CIVIL CODE
Sub-title III
P ROVISIONS COMMON TO  T ESTATE  S UCCESSIONS AND 
TO  I NTESTATE  S UCCESSIONS
§  I.O F THE  O PENING OF  S UCCESSIONS, OF  C ONTINUANCE 
OF  P OSSESSION IN THE PERSON OF THE  H EIR, AND 
OF  P RESCRIPTION OF CERTAIN  A CTIONS
Succession opens 
at death. 
831 .  A succession opens at the time of death, or on the day on
which the judgment declaring that the person whose succession is
concerned is, by reason of his long absence, to be presumed to have
died has become  res judicata .
Presumption of 
survivorship in 
certain cases. 
832.   Where several persons, among whom there are the testator
and the heir or legatee, or who are called by law to each other’s
succession  ab   intestato , perish in a common calamity, and there is
no proof as to which of such persons died first, the presumption of
survivorship shall be determined by the circumstances of the case,
and, in default by the consideration of vigour having regard to age
or sex.
Rule as to 
presumption of 
survivorship as 
regards person of 
same sex,
833. (1) If the persons who perished in a common calamity
were of the same sex, and under thirty-five years of age, the eldest
is presumed to have survived.
(2) If they were over thirty-five years of age, the youngest is
presumed to have survived.
(3) If some were over thirty-five years of age, but not over
seventy, and some under fourteen, the former are presumed to have
survived.
(4) If some were over seventy years, and some over seven, the
latter are presumed to have survived.
(5) If some were over seventy years and some were under
seven, the former are presumed to have survived.
as regards persons 
of different sex.
834. (1) If the persons who perished in a common calamity
were of different sex, and not over the age of fourteen years, the
eldest is presumed to have survived.
(2) If they were over fourteen, but not over thirty-five years,
the male is presumed to have survived.
(3) If they were over thirty-five years, and were of the same
age, or the difference in age did not exceed five years, the male is
presumed to have survived; if the difference exceeded five years,
the youngest is presumed to have survived.
Succession also 
opens on taking of 
religious vows.
835.   Succession also opens on the taking of vows in a monastic
order, or in a religious corporation of regulars.
Seisin of heirs. 836.   The possession of the property of the deceased is, by
operation of law, transferred, by way of continuation, to the heir,
whether testamentary or an heir-at-law, subject to his obligation of
     CIVIL CODE            ġ CAP. 16.             165
discharging all the liabilities of the inheritance.
Where a part only 
of the inheritance 
is disposed of.
837.   Where the deceased disposes of a portion only of the
inheritance, and the remaining portion devolves upon the heirs-at
law, possession vests, by operation of law, in the testamentary heir
and in the heir-at-law, in proportion to their respective shares.
Where person 
claiming rights 
over property of 
inheritance, has 
taken possession 
thereof.
838.   Where any person claiming rights over the property of the
inheritance has taken possession thereof, the heirs in whom
possession vests by law shall be deemed to have been dispossessed
de   facto,  and may exercise all the actions competent to a legitimate
possessor.
Persons from 
whom illegitimate 
child or spouse is 
to demand 
possession.
839. (1) The illegitimate child or the spouse, entitled by law to
a portion of the property of the deceased, must demand delivery of
possession of such portion from the person on whom the remainder
of the estate devolves, by testate or intestate succession.
(2) Where, on failure of other persons, the succession goes to
the illegitimate child and the spouse of the deceased, the former
must demand possession from the latter.
When demand for 
delivery of 
possession is to be 
made to the court. 
Amended by: 
L.N. 148 of 1975.
840. (1) Where the illegitimate child or the spouse or the
Government of Malta succeeds to the whole inheritance  ab
intestato ,   the demand for the delivery of possession of the
inheritance must be made to the court of the island in which the
deceased resided at the time of his death, or took religious vows.
(2) Such delivery of possession shall be deemed to have been
made by the declaration of the court that the succession has opened
to the illegitimate child, the spouse or the Government of Malta,
and no further acts shall be necessary.
Security to be 
given by 
illegitimate child 
or by spouse before 
declaration of 
delivery of 
possession.
841. (1) The court shall not declare the succession to have
opened in favour of the illegitimate child or the surviving spouse
before such child or spouse, and a sufficient surety, shall have
jointly and severally entered into a recognizance, secured by a
general hypothecation of their property, to restore the inheritance
to the heirs of the deceased entitled thereto, and before such
recognizance of the child or spouse, and of the surety, shall have
been registered in the Public Registry.
(2) The court may, according to circumstances, fix the amount
of the recognizance of the surety, or the amount for which the
property is to be hypothecated.
When surety may 
be dispensed with.
842.   The court may, according to circumstances, allow a
special, instead of a general hypothec: or where the party
demanding delivery of possession has sufficient immovable
property to secure the restoration of the inheritance, dispense
altogether with the production of the surety.
No surety required 
where value of 
inheritance does 
not exceed fifty 
liri.  
Amended by: 
XI.1977.2; 
XIII. 1983.5.
843.   The surety may be dispensed with, in all cases where the
value of the estate does not exceed fifty liri and the illegitimate
child or the spouse declares on oath that he or she was unable to
find a surety.
166               CAP.16. ħ                CIVIL CODE
Issue of banns. 
Cap. 12.
844. (1) After the lapse of three years from the opening of the
succession, the aforesaid court shall, on the demand of the
illegitimate child, or of the spouse, or of the surety, issue banns to
be posted up and published in the same manner as those mentioned
in article 537 of the Code of Organization and Civil Procedure,
calling upon any person claiming any right over the inheritance, to
bring forward such claim within the time of one month from the
date of the publication of the banns. And after the lapse of the said
month, the court shall make an order declaring the obligation of the
surety and the effects of the hypothecary registrations to have
ceased both in regard to the property of the surety as well as in
regard to the property of the child or spouse, except in respect of
such persons as may have, within the said time or previously,
brought forward their claims by means of a protest.
(2) If no person shall have appeared to claim the inheritance
before the issue of the banns or within the said time of one month,
the court shall discharge the surety unconditionally, and shall order
the said hypothecary registrations to be cancelled, saving the
personal obligation of the illegitimate child or spouse in favour of
such persons as may appear within the time prescribed in the next
following article.
Limitation of 
action for 
demanding 
inheritance, etc.
845. (1) The action for demanding an inheritance, or a legacy,
or the legitim, or the portion of property granted to illegitimate
children or to the spouse, whether in testate or in intestate
successions, shall lapse on the expiration of ten years from the day
of the opening of the succession.
(2) Nevertheless, with regard to minors, or persons interdicted,
the said action shall not lapse except on the expiration of one year
from the day on which they shall have attained majority, or the
interdiction shall have ceased, as the case may be.
§  II. O F THE  A CCEPTANCE AND  R ENUNCIATION OF AN 
I NHERITANCE
O F THE  A CCEPTANCE OF AN  I NHERITANCE
No person bound 
to accept 
inheritance.
846.   No person is bound to accept an inheritance devolved
upon him.
Inheritance may be 
accepted uncondi-
tionally or under 
benefit of inven-
tory.
847.   An inheritance may be accepted unconditionally, or under
benefit of inventory.
Persons subject to 
tutorship, etc.  
Amended by: 
XLVI.1973.63; 
XXI.1993.2.
848.   Where an inheritance devolves upon a person subject to
tutorship or curatorship, or upon a minor, it cannot be accepted by
the tutor or curator, or by the parent exercising parental authority
except under benefit of inventory.
     CIVIL CODE            ġ CAP. 16.             167
Retrospective 
effect of 
acceptance of 
inheritance.
849.   The acceptance of an inheritance shall retroact as from the
day of the opening of the succession, saving any right which may
have been acquired by third parties in virtue of agreements made in
good faith with the apparent heir.
Acceptance may be 
express or implied.
850. (1) Acceptance may be either express or implied.
(2) It is express, if the status of heir is assumed either in a
public deed or in a private writing.
(3) It is implied, if the heir performs any act which necessarily
implies his intention to accept the inheritance, and which he would
not be entitled to perform except in his capacity as heir.
Effects of judicial 
declaration as to 
status of heir.
851.   A person who, by a judgment of the competent court, has
been declared to be the heir, or has been condemned expressly in
such capacity, shall be deemed to be the heir with regard to all the
legatees and creditors of the inheritance.
Acts not implying 
acceptance.
852.   Arrangements made for the funeral, acts of mere
preservation, or of provisional administration, shall not, unless the
status of heir has also been assumed, imply acceptance of the
inheritance.
Acts implying 
acceptance.
853. (1) Any donation, sale, or assignment of his rights of
succession by one of the co-heirs, whether in favour of a stranger or
of all or any of his co-heirs, shall imply his acceptance of the
inheritance.
(2) The same applies -
( a ) with regard to a renunciation made, even if
gratuitously, by one of the heirs in favour of one or
more of his co-heirs;
( b ) with regard to a renunciation made, even in favour of
all his co-heirs indiscriminately, when such
renunciation is made under an onerous title.
When renunciation 
of one co-heir in 
favour of other co-
heirs does not 
imply acceptance 
of inheritance.
854.   Where the renunciation is made gratuitously by one of the
co-heirs in favour of all those co-heirs, whether testamentary or
heirs-at-law, upon whom, on failure of the party renouncing, his
portion of the inheritance would have devolved, it shall not imply
acceptance of the inheritance.
Where heirs do not 
agree as to 
accepting or 
renouncing an 
inheritance.
855.   If the heirs do not agree as to accepting or renouncing the
inheritance, the party accepting shall alone acquire all the rights,
and become subject to all the liabilities of the inheritance.
Right of 
acceptance 
transmissible to 
heirs.
856.   Where a person to whom a succession has opened dies
without having renounced or accepted it, the right to accept such
succession shall vest in his heirs; and in such case the provisions of
the last preceding article shall also apply to such heirs.
Rights of such 
heirs.
857. The heirs who have accepted the inheritance of the person
from whom the right referred to in the last preceding article is
derived, may nevertheless renounce the inheritance devolved upon,
but not yet accepted by such person:
Provided that the renunciation of the inheritance of the said
168               CAP.16. ħ                CIVIL CODE
person shall also operate as a renunciation of the inheritance
devolved upon him.
When acceptance 
may be impeached.
858. (1) A person who has accepted an inheritance cannot
impeach the acceptance, unless such acceptance was the result of
violence, or of fraud practised upon him.
(2) Nevertheless, if a will is discovered which, at the time of
acceptance, was unknown to the person accepting, such person
shall not be bound to discharge the legacies bequeathed in such will
beyond the value of the inheritance, saving the legitim or other
portion to which such person may be entitled.
Period of limitation 
as to right of 
accepting vacant 
inheritance.
859.   The right of accepting a vacant inheritance is prescribed
by the lapse of thirty years.
O F THE  R ENUNCIATION OF AN  I NHERITANCE
Renunciation is not 
presumed.
860. (1) Renunciation of an inheritance cannot be presumed. 
(2) It may only be made by a declaration filed in the registry of
the court of voluntary jurisdiction of the island in which the
deceased resided at the time of his death.
Heir renouncing 
testate succession 
forfeits right to 
intestate 
succession.
861. The heir who renounces a testate succession forfeits all
rights to the intestate succession:
Provided that it shall be lawful for such heir to make, in the act
of renunciation, a reservation in respect of the legitim or other
portion of the property to which he may be entitled under any of the
provisions of articles 614 to 653.
Heir renouncing 
inheritance may 
claim legacy.
862. (1) The heir who renounces is considered as if he had
never been an heir.
(2) Nevertheless, his renunciation shall not operate so as to
deprive him of the right to demand any legacy bequeathed to him.  
Devolution of 
share of person 
renouncing, in 
intestate 
succession.
863. (1) In intestate successions, the share of the person
renouncing accrues to his co-heirs.
(2) If the person renouncing is the sole heir, the succession
devolves upon the person next in degree.
No person may 
take as 
representative of 
person renouncing.
864. (1) No person may take as the representative of an heir
who has renounced.
(2) If the person renouncing is the sole heir in his degree, or if
all the co-heirs renounce, the children shall take in their own right
and shall succeed  per capita.
Devolution of 
share of person 
renouncing, in 
testate succession.
865.   In testate successions, the share of the person renouncing
shall devolve upon the co-heirs or the heirs-at-law as provided in
articles 737 and 741.
     CIVIL CODE            ġ CAP. 16.             169
Creditors of 
renouncing heir 
may accept in his 
stead. 
Amended by: 
XLVI.1973.64.
866. (1) The creditors of a person who renounces an
inheritance to the prejudice of their rights, may apply to the court
for authorization to accept such inheritance in the place of their
debtor.
(2) In the case referred to in sub-article (1) of this article the
renunciation is annulled not in favour of the renouncing heir, but in
favour of the creditors, and only to the extent of the rights of such
creditors.
(3) It shall be lawful for any of the co-heirs of the person
renouncing to oppose the action of the creditors by paying the sums
due to them, and the co-heir effecting payment shall  ipso jure  be
subrogated to the rights of the creditors whose claims he has
satisfied.
Renouncing heir 
may still accept 
vacant inheritance.
867. (1)  An heir who has renounced an inheritance may yet
accept such inheritance provided - 
( a ) the right of acceptance shall not, in his regard, have
lapsed by prescription; and
( b ) the inheritance shall not have been already accepted by
other heirs.
(2) Nevertheless, such acceptance shall not operate so as to
prejudice any right which may have been acquired by third parties
over the property of the inheritance either by prescription, or by
virtue of acts validly made with the curator of the vacant
inheritance.
Heir may be com-
pelled to declare 
whether he accepts 
or refuses.
868.   The court shall, on the demand of any person interested,
fix the time of one month, which may, on good grounds, be
extended to another month, within which the heir whether
testamentary or heir-at-law shall be bound to declare whether he
accepts or renounces the inheritance; and in default of such
declaration within the said time, original or enlarged, the
inheritance shall be deemed to have been renounced.
Heir having actual 
possession cannot 
renounce 
inheritance after 
lapse of three 
months.
869.   Notwithstanding the provisions of the foregoing articles,
the persons entitled to succeed, having the actual possession of the
property of the inheritance, shall, on the lapse of three months from
the opening of the succession, or from the day on which they had
knowledge of the devolution thereof, forfeit the right to renounce
such inheritance, unless they have complied with the provisions
relating to the benefit of inventory; and, they shall be deemed to be
pure and unconditional heirs, even though they claim to be seized
of such property under a different title.
Heir 
misappropriating 
property of 
inheritance forfeits 
rights of 
renouncing 
inheritance.
870.   Any heir who misappropriates or conceals any property
belonging to the inheritance, shall forfeit the right to renounce such
inheritance, and shall, notwithstanding any renunciation remain
pure and unconditional heir.
Renunciation of 
inheritance of a 
person living, is 
null.
871.   Saving other provisions of this Code with regard to
renunciations in contemplation of marriage, it shall not be lawful to
renounce the inheritance of a living person, or to alienate any
170               CAP.16. ħ                CIVIL CODE
eventual rights thereto, except on taking the vows in a monastic
order or a religious corporation of regulars.
Renunciation of 
inheritance by 
person entering 
into a monastic 
order, to be 
absolute,
872.   A   renunciation made on taking the vows in a monastic
order or a religious corporation of regulars must be made in a
manner that the person renouncing and the order or corporation,
may in no case succeed to the property so renounced.
except with regard 
to the power of 
reserving a life 
annuity.
873.   It shall, nevertheless, be lawful for the person renouncing
as aforesaid to reserve a life annuity on the property so renounced,
and, in any such case, the order or corporation may, upon the death
of the person renouncing, demand the payment of any amount of
the annuity which shall not have been paid to him provided he shall
have expressly declared the default of payment and the debt is not
barred by prescription.
Renunciation by 
minor on entering 
into a religious 
order.
874.   The renunciation mentioned in article 872 may be made
even by a minor, provided he has the age required by law for taking
religious vows.
Effect of 
renunciation.
875.   The renunciation mentioned in article 872 shall be
operative in regard to the persons in whose favour it has been made
even though such persons shall not have been present, and shall
not, up to the time of the opening of the succession to the property
renounced, have accepted such renunciation.
Annulment of 
vows brings about 
the annulment of 
the renunciation.
876. (1) The annulment of the religious vows shall also bring
about the annulment of the renunciation.
(2) Nevertheless, any alienation of the property renounced
which may have been made before the annulment of the vows, shall
remain effectual, saving the right of the person renouncing to claim
an indemnity from such other persons as may be liable, according
to law.
O F THE  B ENEFIT OF  I NVENTORY
Nullity of 
testamentary 
disposition 
restraining heir 
from entering upon 
inventory.
877.   It shall be lawful for the heir, notwithstanding any
prohibition of the testator, to avail himself of the benefit of
inventory.
Declaration of 
intention to assume 
status of heir under 
benefit of inven-
tory.
878. (1) The declaration of an heir that he does not intend to
assume the status of heir except under the benefit of inventory shall
be made in the registry of the court of voluntary jurisdiction of the
island in which the deceased resided at the time of his death, or in
which the person whose succession is concerned has taken the
vows in a monastic order or religious corporation of regulars.
(2) Where the opening of the succession has taken place in
virtue of a judgment declaring that, on account of a long period of
absence, the person whose succession is concerned is to be
presumed to have died, the said declaration shall be made by the
heir in the registry of the court of the island in which such
     CIVIL CODE            ġ CAP. 16.             171
judgment shall have been given.
Declaration to be 
preceded or 
followed by 
inventory.  
Cap. 12. 
879.   The declaration aforesaid shall be ineffectual if it is not
preceded or followed by an inventory of the property of the
inheritance in accordance with the provisions contained in the Code
of Organization and Civil Procedure.
Disagreement 
among heirs as to 
entering upon 
inventory.
880. (1) If among several heirs one is willing to accept the
inheritance under the benefit of inventory, and one or more without
such benefit, the inventory must be made.
(2) In any such case, it shall be sufficient that the declaration
referred to in article 878 be made by one only.
(3) The benefit is only competent to the heir making the
declaration.
Heir having actual 
possession of 
property of 
inheritance to 
make up inventory 
within three 
months.
881.   The heir having the actual possession of the property of
the inheritance, is bound to make up the inventory within three
months from the day of the opening of the succession, or from the
day on which he knew that the inheritance devolved upon him.
Heir failing to 
commence or 
complete inventory 
within prescribed 
time to be deemed 
to have accepted 
inheritance without 
benefit of 
inventory. 
882.   Where the heir has not, within the first three months,
commenced the inventory or has not completed it within the said
time, or within such further time as may have been allowed to him,
he shall be deemed to have accepted the inheritance without the
benefit of inventory.
Time for 
deliberating after 
inventory is 
completed.
883.   When the inventory is completed, the heir who has not yet
made the declaration of accepting the inheritance, shall be allowed
the time of forty days, to be reckoned from the day of the
completion of the inventory, to deliberate whether he would accept
or renounce the inheritance; and if, within the said time, the heir
has not made in the registry of the said court a declaration
renouncing the inheritance, or accepting it under the benefit of
inventory, he shall be deemed to have accepted it under the benefit
of inventory.
Running of time 
with regard to heir 
not having actual 
possession of 
property of 
inheritance.
884. (1) Where any claim is brought against an heir who has
not the actual possession of the property of the inheritance and has
not intermeddled with it, the times fixed in articles 881, 882 and
883 for making up the inventory and for deliberating shall only
commence to run from a day to be fixed by the court.
(2) Where no claims are brought against such heir, he shall
continue to have the right to make up the inventory until such time
as the right of accepting the inheritance shall not have lapsed by
prescription.
Minors and 
persons 
interdicted.
885.   Minors and persons interdicted shall not be deemed to
have forfeited the benefit of inventory except on the expiration of
one year from the day on which they shall have attained majority,
or the interdiction shall have ceased, as the case may be, unless,
within such time, they shall have complied with the provisions of
the foregoing articles.
172               CAP.16. ħ                CIVIL CODE
Pending inventory, 
heir is considered 
as curator of 
inheritance.
886. (1) During the continuance of the time allowed for
making up the inventory and for deliberating, the person entitled to
succeed is not bound to assume the status of heir.
(2) Nevertheless, such person shall be considered as curator  de
jure  of the inheritance, and, as such, he may be sued as representing
the inheritance to answer claims brought against it.
(3) If such person fails to appear, the court shall appoint a
curator to represent the inheritance in the proceedings.
Heir may obtain 
leave to sell 
hereditary property 
which cannot be 
preserved.
887. Where in the estate there are things which cannot be
preserved, or the preservation of which entails a considerable
expense, the heir may, during the continuance of the said times,
obtain from the court of voluntary jurisdiction, or, in case of
opposition, from the competent court, leave for such things to be
sold in such manner as the court shall deem expedient:
 Provided that the heir shall not by reason of any such procedure
be deemed to have accepted the inheritance.
Expenses incurred 
before 
renunciation.
888.   Where the heir renounces the inheritance before the
expiration of the times, original or enlarged, referred to in the
foregoing articles, any lawful expense incurred by him up to the
time of the renunciation, shall be at the charge of the inheritance.
Fraudulent 
omission of 
property in 
inventory. 
889.   An heir guilty of having fraudulently omitted to include in
the inventory property belonging to the inheritance, shall forfeit the
benefit of inventory.
Effect of 
inventory.
890.   The effect of the inventory is -  
( a ) that the heir shall not be liable for the debts of the
inheritance beyond the value of the property to which
he succeeds;
( b ) that he may free himself from the payment of the debts
by giving up all the property of the inheritance to the
creditors, the legatees, and even to the co-heir who
does not similarly elect to give up the property;
( c ) that his own property is not intermixed with the
property of the inheritance, and that he shall retain his
right to enforce the payment of his own claims against
the inheritance.
Duties of heir who 
enters upon 
inventory.
891. (1) The heir who enters upon inventory shall be bound to
administer the property of the inheritance, and to render an account
of his administration to the creditors and the legatees.
(2) He cannot be compelled to satisfy claims out of his own
property, except when he has been put in default to produce his
account, and has not yet fulfilled this obligation.
(3) After the liquidation of the account, he cannot be compelled
to pay out of his own property except to the extent of the balance
which results to be due by him.
Extent of liability 
of heir who enters 
upon inventory.
892.   The heir who enters upon inventory shall not in his
administration, be answerable except for gross negligence.
     CIVIL CODE            ġ CAP. 16.             173
Time within which 
to render account.
893.   The creditors and the legatees may demand that a time be
assigned to the heir for rendering his account.
When heir entitled 
to legitim neglects 
to make up 
inventory.
894.   Where the heir to whom the legitim, or any other portion
of the property would be due, neglects to make up the inventory, he
shall forfeit the right to cause the donations or legacies made in
favour of any person, other than a co-heir, to be reduced.
Security to be 
given by heir who 
enters upon 
inventory.
895. (1) The heir who enters upon inventory, shall, upon the
demand of any creditor or other person interested give sufficient
security for the value of the movable property included in the
inventory, for the fruits of the immovable property, and for any
balance of the proceeds of the sale of the immovable property
which may remain after satisfying the claims of the creditors of the
inheritance.
(2) Where the heir fails to give such security, the court shall
give such directions as it may deem proper in order to safeguard the
rights of the interested parties.
Payment to certain 
creditors before 
legatees.
896.   It shall not be lawful for the heir who enters upon
inventory to pay out any legacy before satisfying the creditors who,
prior to the publication of the inventory, shall have, by a judicial
letter or other act, given him due notice of their claims, and those
whose claims are registered in the Public Registry.
Payment to other 
creditors and 
legatees.
897. (1) When the creditors mentioned in the last preceding
article have been satisfied, the heir who enters upon inventory shall
pay such other creditors as may appear, and the legatees, in the
order of their application for payment.
(2) Nevertheless, even in such case, the said heir cannot pay a
legacy if, before effecting payment thereof, notice of a debt due by
the estate is given to him.
Payment of 
registered debts to 
be made in order of 
priority.
898.   The heir who enters upon inventory shall, in paying the
debts registered in the Public Registry, and those of which he had
received notice at the time of payment, and in retaining any amount
in respect of any debt due to himself by the estate, observe the
order of the privileges or hypothecs securing such debts.
Remedy available 
to creditor 
prejudiced by 
payment made by 
heir.
899.   Any creditor to whose prejudice the heir shall have paid
other creditors or legatees can exercise his remedy both against the
heir as well as against the creditors or legatees who have been paid.
Right of creditors 
appearing after the 
whole of the estate 
has been paid out.
900. (1) Any creditor appearing after the whole of the estate
has been paid out in the discharge of other debts, or of legacies,
may only exercise his remedy against the legatees.
(2) Such action is prescribed by the lapse of three years to be
reckoned from the date of the last payment.
Exercise of 
hypothecary 
action.
901.   The provisions of the last preceding article shall not
operate so as to bar the exercise by any unpaid creditor of any
action competent to him against the possessor of any immovable
property hypothecated in security of the debt due to such creditor.
174               CAP.16. ħ                CIVIL CODE
Expenses of 
inventory and 
accounts.
902.   The expenses of the inventory and of the account shall be
at the charge of the inheritance.
O F  V ACANT  I NHERITANCE
When inheritance 
is deemed to be 
vacant. 
Cap. 12.
903.   An inheritance, until it is accepted, shall be deemed to be
vacant: and, on the demand of any person interested, the court
shall, saving the provisions of article 886, appoint a curator, as
provided in the Code of Organization and Civil Procedure.
Duties of curator. 904. (1) The curator of a vacant inheritance shall, first of all,
make up an inventory thereof.
(2) The curator shall exercise and prosecute all actions
pertaining to the inheritance: he shall answer all claims brought
against it, and shall administer the property thereof, subject to the
obligation of depositing any money which may be found in the
inheritance, or the proceeds of the sale of any movable or
immovable property, and of rendering an account to the person
entitled to demand it.
Provisions of s.904 
not to apply to 
curators on the 
rota.  
Cap. 12.
905.   The provisions of the last preceding article shall not apply
to any curator appointed solely for the purposes of article 929 of
the Code of Organization and Civil Procedure.
§  III. O F  P ARTITION
Partition of 
inheritance may be 
demanded at any 
time.
906. (1) It shall at all times be lawful to demand the partition
of an inheritance, notwithstanding any prohibition of the testator.
Cases in which it 
may be restrained 
or suspended.
(2) Nevertheless, where all the heirs-institute are minors, or
where any one of such heirs is a minor, it shall be competent to the
testator to restrain the partition of the inheritance amongst the heirs
until the expiration of one year from the day on which the youngest
of them shall have attained his majority.
(3) It shall also be lawful, by a will, to suspend the partition for
a time not exceeding five years, even though no one of the heirs is a
minor. Any disposition suspending the partition for a longer time,
shall not be operative in regard to the time exceeding five years.
Rules governing 
partition.
907.   The provisions contained in Sub-titles II and III of Title V
of Part 1 of Book Second of this Code and in articles 908 to 912
shall be observed in the partition of an inheritance.
Appointment of 
person to make up 
shares, etc.
908.   When the parties do not agree upon the choice, the court
shall appoint a person to draw up a general statement of the
property, to make up the respective shares of the inheritance, and to
fix what each co-partitioner is to receive.
     CIVIL CODE            ġ CAP. 16.             175
Presumption of the 
pre-existence of 
property in case of 
a second or 
subsequent 
marriage. 
Cap. 12. 
909.   Any property which, at the time of the opening of the
succession of a person leaving children or other descendants from
two or more marriages, is found in the estate of such person, shall
be presumed, in the interest of the children or descendants of the
previous marriage, to have existed therein before the celebration of
the subsequent marriage, unless the contrary is made to appear
either by means of an inventory made prior to such subsequent
marriage in the manner laid down by the Code of Organization and
Civil Procedure, or by any other means.
Collation due by 
co-heirs.
910. (1) Each of the co-heirs shall, according to the provisions
of articles 913 to 938 collate or bring into the mass any donation
which may have been made to him, and any sum which may be due
by him.
(2) If the collation is not made in kind, the co-heirs in favour of
whom such collation is due shall withdraw beforehand an equal
portion from the mass of the inheritance.
(3) Such withdrawals shall, as far as practicable, be effected by
taking things of the same nature, quality, and value as those which
have not been collated in kind.
Formation of equal 
shares.
911.   After such collation or withdrawals are effected, the estate
shall be divided into as many equal shares as there are heirs or
stocks taking part in the partition.
Assignee of 
portion of 
inheritance may be 
excluded from 
partition by co-
heirs.
912. (1) Where any of the co-heirs has, under an onerous title,
assigned his rights over the inheritance to any person, not being a
co-heir, the other co-heirs or any of them may, even if the assignee
is a relation of the deceased, exclude him from the partition by
reimbursing to him the price of the assignment, the expenses
incurred on the occasion of such assignment, and the interest on the
price as from the day on which such price shall have been paid to
the assignor.
(2) The right competent to the co-heirs as aforesaid shall lapse
at the expiration of one month from the day on which notice of the
assignment shall have been given to the co-heirs, unless within that
time they shall have declared their intention to exercise such right.
(3) Where any of the co-heirs shall have exercised such right,
the other co-heirs may avail themselves thereof, provided they shall
declare their intention to do so within fifteen days from the notice
given to them.
(4) Any such notice or declaration shall be given or made by
means of a judicial act.
176               CAP.16. ħ                CIVIL CODE
§  IV. O F  C OLLATION
Children or 
descendants are 
bound to collate in 
favour of other 
children or 
descendants.
913. (1) Children and descendants only, on succeeding to the
inheritance of an ascendant, whether under a will or  ab   intestato,
shall bring into the mass, in the interest only of the other children
or descendants, being their co-heirs, everything they may have
received from the deceased by donation, directly or indirectly,
unless the donor shall have otherwise directed.
(2) The provisions of this article shall apply even though the
children or descendants enter upon inventory.
Exemption from 
collation.
914.   Exemption from collation may be granted either by the
same deed containing the donation, or by a subsequent deed having
the formalities requisite for the validity of donations or wills.
Where donation 
exceeds disposable 
portion, the excess 
is subject to 
collation.
915.   It shall not be lawful for the child or descendant,
notwithstanding an express exemption from the obligation of
collation, to retain the donation except to the extent of the
disposable portion, and any excess shall be subject to collation.
Heir renouncing 
succession may 
retain donation.
916.   An heir who renounces a succession, may, nevertheless,
retain the donation, or claim the legacy bequeathed to him, to the
extent of the disposable portion, saving, where such heir demands
the legitim or other portion of property due to him by law, the
provisions of sub-article (4) of article 620 and articles 634 and 643.
Where donee is not 
the heir 
presumptive at the 
time of the 
donation.
917.   A donee who was not the heir presumptive at the time of
the donation, but who, at the time of the opening of the succession,
is entitled to succeed, shall be bound to collate the things given to
him, unless the donor shall have exempted him from such
obligation.
Donations to 
descendant of heir 
are exempt from 
collation.
918. (1) Any donations made to the descendant of a person
entitled to succeed at the time of the opening of the succession shall
in all cases be deemed to be made without the obligation of
collation.
(2) The ascendant, on succeeding to the donor, shall not be
bound to collate such donations.
Descendant 
succeeding in his 
own right not 
bound to collate 
donations made to 
ascendant.
919. (1) The descendant succeeding in his own right to the
donor, shall not be bound to collate the things given to his
ascendant, even though he may have accepted the inheritance of
such ascendant.
(2) Where, however, the descendant succeeds by right of
representation, he shall be bound to collate the things given to his
ascendant, even though he may have renounced the inheritance of
such ascendant.
Donations made to 
spouse of heir.
920. (1) Any donation made to the spouse of a person entitled
to succeed shall be deemed to be made with exemption from
collation.
(2) Where the donation is made conjointly to both spouses, and
only one of them is entitled to succeed, the latter shall collate his
portion of the donation.
     CIVIL CODE            ġ CAP. 16.             177
Collation due to 
inheritance of 
donor.
921.   Collation is only due to the inheritance of the donor. 
What is subject to 
collation.
922.   Collation is due for what has been disbursed by the
deceased for providing a dowry to any of his female descendants,
or for making any donation on the occasion of marriage, or for
providing any descendant with a sacred patrimony, or for procuring
for him an ecclesiastical benefice, or for setting him up in any
employment or business, or for paying his debts.
Things left by will 
not subject to col-
lation.
923.   All that which is left by will shall not, in the absence of a
disposition to the contrary, be subject to collation, saving the
provisions of article 938.
Maintenance 
expenses, etc., not 
subject to 
collation.
924.   The expenses of maintenance, education, and instruction,
the ordinary expenses on the occasion of weddings, and customary
presents, are not subject to collation.
Profits derived 
from agreements 
with deceased.
925.   Any profits which may have been derived from
agreements entered into with the deceased shall likewise not be
subject to collation, provided such agreements did not, at the time
they were entered into, confer any indirect advantage.
Special 
partnerships 
entered into 
between deceased 
and heir.
926.   Nor shall any collation be due in respect of any special
partnership entered into, without any fraud, between the deceased
and one of his heirs.
Immovable 
property which 
perishes 
accidentally not 
liable to collation. 
927.   Any immovable property which has perished by a
fortuitous event and without any fault of the donee, shall not be
subject to collation.
Fruits, etc., of 
things liable to col-
lation.
928.   The fruits of, and the interest on things subject to
collation, shall only be due from the day of the opening of the
succession.
Pensions or annui-
ties paid or due, 
not subject to col-
lation.
929.   Any pension or annuity which the donor shall have bound
himself to pay to the donee during the lifetime of the donor himself
whether such pension or annuity has already been paid or is still
due, and any grant of any annuity, or of interest on any capital, or
of the fruits of any other thing to be received by the donee during
the lifetime of the donor, shall not be subject to collation.
Legatees or 
creditors cannot 
demand collation.
930. (1) Collation is only due by a descendant, being a co-heir,
to his co-heir as provided in article 913.
(2) Saving the provision of article 938, collation is not due to
any legatee or creditor of the estate, unless the donor shall have
otherwise directed.
How collation of 
immovables is 
made.
931. (1) With regard to immovables, collation is made, at the
option of the donee, either by returning the thing in kind,
disencumbered from any burden or hypothec with which the donee
may have charged it, or by imputing to the share due to the donee
the value of the thing at the time of the collation.
(2) In the latter case, each of the other co-partitioners shall be
entitled to withdraw beforehand from the mass of the inheritance
one or more immovables, equal in quantity and quality, at least
178               CAP.16. ħ                CIVIL CODE
approximately, to the thing the value whereof has been imputed as
aforesaid.
Cost of 
improvements.
932. (1) In all cases the donee shall be allowed the expenses
with which he has improved the immovable, to the extent of the
increase in value produced thereby, regard being had to the time of
the collation.
(2) He shall also be allowed the necessary expenses incurred by
him for the preservation of the immovable, even though such
immovable may not have been improved thereby.
(3) The donee shall, on the other hand, be bound to account for
any deterioration caused through his fault, which may have
diminished the value of the property.
Where donee 
alienates 
immovable 
property.
933.   Where the immovable has been alienated by the donee,
any improvement made or deterioration caused by the alienee shall
be taken into account in accordance with the provisions of the last
preceding article.
Where donation 
exceeds disposable 
portion.
934.  If the donor has exempted the donee from the obligation of
collation, and the donation exceeds the disposable portion, the
collation of the overplus shall be made in accordance with the rules
laid down in article 653.
Right of retention. 935.  A co-heir who collates a thing in kind, may retain
possession thereof until the reimbursement of the sums due to him
for expenses and improvements.
Collation of 
movables.
936. (1) Collation of movables is only made by imputing the
value thereof.
(2) Such value shall be regulated on the valuation contained in
the deed of donation, or, in default of such valuation, on a valuation
to be made by experts, regard being had to the time of the donation.
Collation of 
money.
937. (1) Collation of money is made by taking less out of the
funds of the inheritance.
(2) If such funds are insufficient, the donee can free himself
from collating other money by abandoning movable property, or, in
default, immovable property of the inheritance, in proportion to the
amount due.
Where heir, etc., 
entitled to legitim, 
etc., demands 
abatement of gifts 
made to others.
938. (1) Notwithstanding the provisions of articles 923 and
930, where the donee or legatee entitled to legitim or other portion
of property, sues for the abatement of any disposition made in
favour of a donee, a co-heir, or a legatee even if a stranger, on the
ground that such disposition exceeds the disposable portion, he
shall impute to his legitim or portion any donation or legacy made
to him, unless he shall have been expressly exempted therefrom.
(2) Any such exemption shall not operate to the prejudice of a
prior donee.
(3) Any other thing which, according to the rules laid down in
the foregoing articles, is not subject to collation, shall likewise be
exempted from being brought into account.
     CIVIL CODE            ġ CAP. 16.             179
 §  V.   O F THE  P AYMENT OF  D EBTS
How co-heirs 
contribute to 
payment of debts.
939. (1) The co-heirs shall contribute among themselves to the
payment of the debts of the inheritance in such proportion and
manner as shall have been established by the testator.
(2) Where the deceased has not made a will or has not given
any directions as to the apportionment of the debts, the co-heirs
shall contribute to the payment of such debts in proportion to their
respective share in the inheritance.
Each heir is bound 
ratably with 
respect to 
creditors.
940. (1) In all cases, with respect to the creditors, each of the
heirs shall be personally liable for the debts of the inheritance, in
proportion to his share.
(2) Nevertheless, where any one of the co-heirs possesses
property charged with a hypothec in security of the debt, he shall,
with regard to such property, be liable  ex hypotheca  for the whole,
saving his right of relief against the other co-heirs.
Extent of right of 
relief exercisable 
against co-heirs by 
heir who pays the 
whole debt.
941. (1) A co-heir who, owing to a hypothec, has paid more
than his share of a common debt, cannot seek relief against the
other co-heirs beyond the share due personally by each of them,
even though in paying the debt he shall have caused himself to be
subrogated to the rights of the creditor.
(2) A co-heir, however, who, by entering upon inventory, has
retained the right of demanding the payment of a debt due to him
personally, may, like any other creditor, demand the payment of
such debt, deducting therefrom the share payable by him as co-heir.
Insolvency of
co-heir.
942.   Where any of the co-heirs is insolvent, his share of the
hypothecary debt shall be apportioned  pro rata  among all the other
co-heirs.
Separation of 
estates.
943.   The creditors of the inheritance, and the legatees may
demand the separation of the estate of the deceased from that of the
heir as provided in articles 2096 to 2106.
Legatee not liable 
for hereditary 
debts.
944.   The legatee is not bound to pay the debts of the
inheritance; saving in favour of the creditors the hypothecary
action on the property bequeathed, where competent, and saving
also the exercise of the said benefit of the separation of estates.
Legatee 
discharging debt is 
subrogated to the 
rights of creditor. 
945.   The legatee who has paid a debt for which the immovable
bequeathed to him was hypothecated, shall be subrogated to the
rights of the creditor against the heirs.
180               CAP.16. ħ                CIVIL CODE
§  VI. O F THE  E FFECTS OF  P ARTITION AND OF  W ARRANTY OF 
S HARES
After partition, co-
heir is deemed to 
be sole and direct 
successor to 
property comprised 
in his share.
946.   Each co-heir is deemed to have succeeded alone and
directly to all the property comprised in his share, or come to him
by licitation, and never to have had the ownership of the other
hereditary property.
Co-heirs are 
mutually 
warrantors in 
respect of 
molestations and 
evictions.
947. (1) The co-heirs are respectively warrantors towards each
other against molestations and evictions but only if such
molestations and evictions result from a cause existing previously
to the partition.
(2) Such warranty ceases, if the co-heir suffers eviction
through his own fault.
Warranty may be 
excluded.
948.   The co-partitioners may stipulate that they shall not be
liable to any warranty; and in such case the provisions of articles
1411 and 1412 shall apply.
Effects of 
warranty.
949. (1) Each of the co-heirs is personally bound, in
proportion to his share of the inheritance, to indemnify his co-heir
for the loss caused by the eviction.
(2) Where any of the co-heirs is insolvent, the portion for
which he is liable shall be apportioned in the proportion stated in
sub-article (1) of this article, between the warrantee and all the
solvent co-heirs.
Warranty in regard 
to debts.
950. (1) The heirs are respectively warrantors towards each
other in regard to the solvency of the debtors of the inheritance.
(2) Such warranty shall only be operative during the time
required for the necessary proceedings for the recovery of the debt. 
Warranty in regard 
to solvency of 
debtor of annuity 
limited to five 
years.
951.   The warranty in regard to the solvency of the debtor of an
annuity shall not last beyond the five years following the partition.
No warranty 
against insolvency 
which occurs after 
partition.
952.   There shall be no warranty against the insolvency of the
debtor where such insolvency has occurred after the partition.
§  VII. O F  P ARTITIONS MADE BY THE  F ATHER, THE  M OTHER, OR 
OTHER  A SCENDANTS AMONG THEIR  D ESCENDANTS.
Parents may divide 
their property 
among their 
children.
953.  It shall be lawful for the father, the mother, or any other
ascendant to divide and distribute his or her property among his or
her children and descendants, including in such partition even the
non-disposable portion.
Partition may be 
made by will or by 
an instrument  inter 
vivos.
954. (1) Any such partition may be made by an instrument
inter vivos  or by a will, with the formalities, and under the
conditions and rules prescribed for donations and wills.
     CIVIL CODE            ġ CAP. 16.             181
(2) Where such partition is made by an instrument  inter vivos ,
it may only include present property.
Property not 
included in 
partition to be 
divided according 
to law.
955.  Where the partition shall not have included all the
property left by the ascendant at the time of his death, such
property as was not included shall be divided according to law.
Partition is null if 
not made among 
all the children.
956. (1) Any partition which is not made among all the
children existing at the time of the opening of the succession and
the descendants of predeceased children entitled to succeed shall be
null  in toto.
(2) In any such case, both the children or descendants who
were not comprised in the partition, as well as those among whom
such partition was made, may demand a fresh partition.
When partition 
may be impeached.  
Amended by: 
LVIII.1975.5.
957.   A partition made by an ascendant may be impeached if it
is made to appear from such partition or from any other
dispositions made by the ascendant that the legitim of any one of
the persons among whom the partition of the property was made
has been prejudiced.
Nullity of partition 
does not invalidate 
dispositions.
958.   The nullity of the partition shall not operate so as to
invalidate the dispositions in execution of which the partition has
been made, even though a stranger may have benefited by the act of
partition.
Title  IV
O F  O BLIGATIONS IN  G ENERAL
Sources of 
obligations.
959.   Obligations which are not created by the mere operation of
law, arise from contracts, quasi-contracts, torts, or quasi-torts.
Sub-title I
O F  C ONTRACTS
Definition of 
contract.
960.   A contract is an agreement or an accord between two or
more persons by which an obligation is created, regulated, or
dissolved.
Contract may be 
bilateral or 
unilateral, 
961. (1) A   contract is synallagmatic or bilateral when the
contracting parties bind themselves mutually the one towards the
other.
(2) It is unilateral when one or more persons bind themselves
towards one or more other persons without there being any
obligation on the part of the latter.
onerous or 
gratuitous,
962. (1) When each of the parties undertakes an obligation, the
182               CAP.16. ħ                CIVIL CODE
contract is termed onerous.
(2) When one of the parties gratuitously procures an advantage
to the other, the contract is termed gratuitous.
commutative, 963 .  A contract is commutative, when each party binds himself
to give or to do a thing which is considered as the equivalent of that
which is given to or done for him.
aleatory. 964.   When the advantage or loss, whether to both parties or one
of them, depends on an uncertain event, the contract is aleatory.
Rules governing 
contracts.
965.   Contracts, whether they have a special denomination or
not, shall be governed by the general rules contained in this Title
saving such special rules as apply to certain contracts.
§  I. O F THE  C ONDITIONS  E SSENTIAL TO THE VALIDITY OF 
C ONTRACTS
Requisites of 
contracts.
966.   The following are the conditions essential to the validity
of a contract:
( a ) capacity of the parties to contract;
( b ) the consent of the party who binds himself;
( c ) a certain thing which constitutes the subject-matter of
the contract;
( d ) a lawful consideration.
O F THE  C APACITY OF  C ONTRACTING  P ARTIES
Capacity  of  
parties.  
Amended by: 
XLVI.1973.65.
967. (1) All persons not being under a legal disability are
capable of contracting.
(2) The disability of persons sentenced to any punishment
whatsoever is abolished.
(3) The following persons are incapable of contracting, in the
cases specified by law:
( a ) minors;
( b ) persons interdicted or incapacitated; and
( c ) generally, all those to whom the law forbids certain
contracts.
Persons not having 
the use of reason.
968.   Any contract entered into by a person who has not the use
of reason, or is under the age of seven years is null.
Persons who have 
not attained the age 
of fourteen years. 
Amended by: 
XXXVII.1975.23.
969. (1) Any obligation entered into by a child under the age
of fourteen years is also null.
(2) Nevertheless, where the child has attained the age of nine
years, the agreement shall be valid in so far as it relates to the
     CIVIL CODE            ġ CAP. 16.             183
obligations entered into by any other person in his favour.
Persons who have 
attained the age of 
fourteen years but 
have not attained 
the age of eighteen 
years, if subject to 
parental authority, 
etc.,
Amended by: 
XXI.1993.2.
970.   The provisions of the last preceding article shall also
apply with regard to any person who has attained the age of
fourteen years, but has not attained the age of eighteen years, if
such person is subject to parental authority, or is provided with a
curator, saving always any other provision of law relating to
marriage.
if not subject to 
parental  authority.  
Amended by: 
XXI.1993.2. 
Cap. 13.
971. (1) Subject to any other provision contained in the
Commercial Code, any minor who has attained the age of fourteen
years, and is not subject to parental authority, nor provided with a
curator, may not alienate or hypothecate his immovable property
without the authority of the competent court.
(2) Such minor may, however, enter into other obligations,
saving, in regard to such obligations, any rescissory action which,
on the ground of lesion, may be competent to him under the
provisions of articles 1214 to 1219.
Child over sixteen 
years may open 
and operate bank 
account. 
Added by: 
XXI.1993.76.
971A.   Notwithstanding any provision of this Code, a child who
has attained the age of sixteen years may deposit money in an
account opened by the child in his or her own name with any bank,
and any money deposited in any such account may only be
withdrawn by such child notwithstanding that such money may be
subject to the administration, usufruct or authority of any other
person. For all purposes of law the child shall with regard to the
opening and operation of any such account be considered a major.
Persons 
interdicted. 
Cap. 12.
972.   The disability of persons interdicted is either general in
regard to all agreements, or special in regard to certain agreements
only, as provided in Title IV of Part II of Book Second of the Code
of Organization and Civil Procedure.
Nullity may not be 
set up by person 
capable of 
contracting.
973.   Persons capable of contracting may not set up the nullity
of the contract on the ground of the disability of those with whom
they have contracted.
O F  C ONSENT
Consent.
violence or procured by fraud, it shall not be valid.
Error of law.
the sole or principal inducement thereof.
Error of fact.
affects the substance itself of the thing which is the subject-matter
of the agreement.
(2) The agreement shall not be void if the error relates solely to
the person with whom the agreement has been made, unless the
consideration of the person has been the principal inducement
thereof.
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Violence. 977. (1) The use of violence against the obligor is a cause of
nullity, even if such violence is practised by a person other than the
obligee.
(2) Nevertheless, an obligation entered into in favour of a
person not being an accessory to the use of violence, in
consideration of services rendered for freeing the obligor from
violence practised by a third party, may not be avoided on the
ground of such violence; saving the reduction of the sum or thing
promised, where such sum or thing is excessive.
When consent is 
considered 
extorted by 
violence.
978. (1) Consent shall be deemed to be extorted by violence
when the violence is such as to produce an impression on a
reasonable person and to create in such person the fear of having
his person or property unjustly exposed to serious injury.
(2) In such cases, the age, the sex and the condition of the
person shall be taken into account.
Where violence is 
practised on 
spouse, etc., of 
contracting party.
979. (1) Violence is a ground of nullity of a contract even
where the threat is directed against the person or the property of the
spouse, or of a descendant or an ascendant of the contracting party.
(2) Where the threat is directed against the person or property
of other persons, it shall be in the discretion of the court, according
to the circumstances of the case, to void the contract or to affirm its
validity.
Reverential fear. 980.   Mere reverential fear towards the father, mother or other
ascendants or towards the husband, shall not be sufficient to
invalidate a contract, if no violence has been used.
Fraud. 981. (1) Fraud shall be a cause of nullity of the agreement
when the artifices practised by one of the parties were such that
without them the other party would not have contracted.
(2) Fraud is not presumed but must be proved.
O F THE  S UBJECT-MATTER OF  C ONTRACTS
Subject-matter of 
contracts.
982. (1) Every contract has for its subject-matter a thing which
one of the contracting parties binds himself to give, or to do, or not
to do.
(2) Only the things that are not  extra commercium  can be the
subject of an agreement.
(3) The mere use or the mere possession of a thing can like the
thing itself, be the subject of a contract.
Subject of 
obligation must be 
a determinate 
thing.
983. (1) The subject of an obligation must be a thing
determinate, at least as to its species.
(2) The portion or quantity of the thing may be uncertain,
provided it is capable of being ascertained.
     CIVIL CODE            ġ CAP. 16.             185
Future things may 
be the subject of 
contracts. 
984. (1) Future things can form the subject of a contract.
(2) Nevertheless, it shall not be lawful to renounce a
succession not yet devolved, or to make any stipulation with regard
to any such succession, whether with the person whose succession
is concerned, or with any other person, even though with the
consent of the former; saving any other provision of the law in
regard to any renunciation or stipulation made in contemplation of
marriage, or upon the taking of religious vows.
Impossible or 
illegal things.
985.   Things which are impossible, or prohibited by law, or
contrary to morality, or to public policy, may not be the subject-
matter of a contract.
Champerty.  
Amended by: 
XXXIX.1961.2; 
VI.1983.2.
986. (1) Stipulations  quotae litis  are void.
Excess of rate of 
interest.
(2) Saving the provisions of article 1852 and of any other
provision of this Code or of any other law, any obligation to pay a
rate of interest exceeding eight per cent  per annum  is also void in
regard to the excess.
O F THE  C ONSIDERATION OF  C ONTRACTS
Want or illegality 
of consideration.
987.   An obligation without a consideration, or founded on a
false or an unlawful consideration, shall have no effect.
Consideration may 
be proved although 
it is not stated.
988.   The agreement shall, nevertheless, be valid, if it is made to
appear that such agreement was founded on a sufficient
consideration, even though such consideration was not stated.
Where stated 
consideration is 
false.
989.   Where the consideration stated is false, the agreement
may, nevertheless, be upheld, if another consideration is proved. 
Unlawful 
consideration.
990.   The consideration is unlawful if it is prohibited by law or
contrary to morality or to public policy.
Where 
consideration is 
unlawful in regard 
to obligee or to 
both the obligor 
and the obligee.
991. (1) Where the consideration for which a thing has been
promised is unlawful only in regard to the obligee, any thing which
may have been given for the performance of the contract, may be
recovered.
(2) If the consideration is unlawful in regard to both
contracting parties neither of them, unless he is a minor, may
recover the thing which he may have given to the other party,
saving the provision of article 1716.
§  II. O F THE  E FFECTS OF  C ONTRACTS
Effects of 
contracts.
992. (1) Contracts legally entered into shall have the force of
law for the contracting parties.
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(2) They may only be revoked by mutual consent of the parties,
or on grounds allowed by law.
Contracts to be 
carried out in good 
faith.
993.   Contracts must be carried out in good faith, and shall be
binding not only in regard to the matter therein expressed, but also
in regard to any consequence which, by equity, custom, or law, is
incidental to the obligation, according to its nature.
Effects of contract 
where thing 
alienated is certain 
and determinate.
994.   Where the subject-matter of a contract is the alienation of
the ownership, or of any other right over a certain and determinate
thing, such ownership or other right is transferred and acquired in
virtue of the consent of the parties, and the thing remains at the risk
of the alienee, even though the delivery thereof has not taken place.
Where thing 
alienated is 
uncertain or 
indeterminate.
995. (1) Where the subject-matter of the contract is an
uncertain or indeterminate thing, the creditor does not become the
owner of such thing until it has become certain, or the debtor has
specified it, and has given notice to the creditor that he has
specified it.
(2) Until the thing has become certain or has been specified, it
remains at the risk of the debtor.
Effects of contracts 
in regard to third 
parties.
996. (1) Nevertheless, with regard to third parties any contract
conveying the ownership of immovable property, or any right over
such property, shall, in no case, commence to be operative until it
has been registered in the Office of the Public Registry, as provided
in article 330.
(2) Where the alienation is made by judicial auction the note
for the registration shall be signed by the registrar of the court
under the authority of which the adjudication of the thing shall
have taken place.
Where a movable 
thing is promised, 
by successive 
agreements, to two 
or more persons.
997.   Where the thing which a person has by successive
agreements undertaken to give or deliver to two or more persons is
movable by nature, or a document of title payable to bearer, the
person to whom the thing is delivered, and who obtains it in good
faith, shall have a prior right over the other or others and shall be
entitled to retain it, even though his title is subsequent in date.
Contracting party 
is presumed to 
stipulate for 
himself, his heirs, 
etc. 
998.   Every person shall be deemed to have promised or
stipulated for himself, for his heirs and for the persons claiming
through or under him, unless the contrary is expressly established
by law, or agreed upon between the parties, or appears from the
nature of the agreement.
Person contracting 
in his own name 
cannot bind any 
one but himself,
999. (1) A person cannot by a contract entered into in his own
name bind or stipulate for any one but himself.
but can bind 
himself to 
performance by 
third party.
(2) Nevertheless, a person can bind himself in favour of
another person, to the performance of an obligation by a third
party; but in any such case if the third party refuses to perform the
obligation, the person who bound himself or promised the
ratification shall only be liable to the payment of an indemnity.
     CIVIL CODE            ġ CAP. 16.             187
When person may 
stipulate for the 
benefit of a third 
party.
1000.    It shall also be lawful for a person to stipulate for the
benefit of a third party, when such stipulation constitutes the mode
or condition of a stipulation made by him for his own benefit, or of
a donation or grant made by him to others; and the person who has
made any such stipulation may not revoke it, if the third party has
signified his intention to avail himself thereof.
Contracts to be 
operative only as 
between 
contracting parties.
1001.    Contracts shall only be operative as between the
contracting parties, and shall not be of prejudice or advantage to
third parties except in the cases established by law.
§  III. O F THE  I NTERPRETATION OF  C ONTRACTS
No interpretation 
where meaning of 
words is clear.
1002.    Where, by giving to the words of an agreement the
meaning attached to them by usage at the time of the agreement, the
terms of such agreement are clear, there shall be no room for
interpretation.
Where literal 
meaning differs 
from intention of 
parties.
1003.    Where the literal meaning differs from the common
intention of the parties as clearly evidenced by the whole of the
agreement, preference shall be given to the intention of the parties.
When clause is 
susceptible of two 
meanings. 
1004.    When a clause is susceptible of two meanings, it must be
construed in the meaning in which it can have some effect rather
than in that in which it can produce none.
Words susceptible 
of two meanings.
1005.    Words susceptible of two meanings shall be taken in the
meaning which is more consistent with the subject-matter of the
contract.
Ambiguity.
the usage of the place where the contract is made.
Customary clauses.
contract, even though they are not expressed.
Clauses to be inter-
preted with refer-
ence to one 
another.
1008.    All the clauses of a contract shall be interpreted with
reference to one another, giving to each clause the meaning
resulting from the whole instrument.
Doubtful cases.
against the obligee and in favour of the obligor.
General terms.
worded, it shall only extend to the things which the parties appear
to have intended to deal with.
When a case is 
specified for the 
purpose of 
explaining an 
agreement.
1011.    Where in a contract a case has been specified for the
purpose of explaining an agreement, it shall not be presumed that
the parties, by so doing, intended to exclude other cases not
specified, if such other cases may reasonably be construed as being
within the scope of the agreement.
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Sub-title II
O F  Q UASI-CONTRACTS,  T ORTS AND  Q UASI-TORTS
§  I. O F  Q UASI-CONTRACTS
Definition. 1012.    A quasi-contract is a lawful and voluntary act which
creates an obligation towards a third party, or a reciprocal
obligation between the parties.
Duties of 
negotiorum gestor.
1013.    Where a person, being of age and capable of contracting,
voluntarily undertakes the management of the affairs of another
person, he shall be bound to continue the management which he has
begun and to carry it out until the person on whose behalf he has
acted is in a position to take charge of such management himself,
and to do everything which is incidental to or dependent upon those
affairs, and he shall be liable to all the obligations which would
arise from a mandate.
Death of interested 
party before 
completion of 
business.
1014.    Where the person on whose behalf the voluntary agent has
acted dies before the business is completed, such agent shall be
bound to continue the management of the business until such time
as the heir is in a position to provide for it himself.
Standard of 
diligence.
1015.    The voluntary agent shall be bound to use in the
management of the business all the diligence of a  bonus
paterfamilias.
Cases where higher 
standard of 
diligence is 
required.
1016.   The provisions of the last preceding article shall be
applied with greater strictness in the following cases:
( a ) where the agent has intermeddled with the business,
notwithstanding the prohibition of the party interested;
( b ) where, by reason of his intermeddling, the business
was not undertaken by a more competent person;
( c ) where the agent himself did not possess the requisite
skill.
Power of court to 
mitigate damages. 
1017.    It shall, in all cases, be lawful for the court to mitigate the
damages arising from the imprudence or negligence of the agent,
having regard to the circumstances which may have induced him to
undertake the business.
Duties of party 
interested.
1018.    If the business was well managed, the party interested
shall, even though the management may have accidentally failed to
benefit him, be bound to perform the obligations contracted on his
behalf by the agent, to indemnify the said agent in regard to any
obligation he may have contracted in his own name, and to
reimburse to him any necessary or useful expenses, with interest
from the day on which they shall have been incurred.
Where agent 
believed that he 
was managing his 
own affairs.
1019.    Nevertheless, where the agent was under the impression
that he was managing his own affairs, he shall not be entitled to any
indemnity beyond the benefit which the party interested may have
actually derived.
     CIVIL CODE            ġ CAP. 16.             189
Agent not entitled 
to indemnity if he 
acts against 
prohibition of 
interested party.
1020.    Where a person has intermeddled with the affairs of
another person against the express prohibition of such other person,
he shall not be entitled to any indemnity.
Restoration of 
thing received 
without being due.
1021.    A person who receives, whether knowingly or by mistake,
a thing which is not due to him under any civil or natural
obligation, shall be bound to restore it to the person from whom he
has unduly received it.
Where debt is paid 
by mistake.
1022.   (1)  Where any person pays a debt under a mistaken
belief that such debt is due by him, he may recover from the
creditor the debt so paid.
(2) Such right of recovery, however, ceases if, in consequence
of the payment, the creditor has, in good faith, deprived himself of
the proof of, or the security attached to the debt, saving the right of
the payer against the true debtor.
Restoration of 
capital and interest 
if payee was in bad 
faith.
1023. (1) Any person who has unduly received the payment of
a sum of money, shall, if he was in bad faith, be bound to restore
both the capital and the interest thereon as from the day of the
payment.
(2) Where, however, he was in good faith, he shall only be
bound to restore the capital.
Restoration of 
thing unduly 
received.
1024.    Any person who has unduly received any thing, other than
money, which is still in his possession, shall be bound to restore it
in kind to the party from whom he received it.
Where thing 
unduly received is 
no longer in the 
possession of the 
party receiving it.
1025. (1) If the thing is not in his possession, or has
deteriorated, he shall, if he received it in bad faith, be liable to the
same obligations as, under articles 556 and 557 are imposed on a
possessor in bad faith.
(2) If he received the thing in good faith, he shall be bound to
restore the value thereof or, as the case may be, to make good the
deterioration, but only up to the amount of any benefit which, as a
result of the alienation or deterioration of the thing, he may have
derived; and where he has not yet received the subject of the
benefit derived from such alienation or deterioration, he shall only
be bound to assign his right of action for the recovery thereof.
(3) He is not bound to restore the value of the thing if he has
lost, given or destroyed it.
Applicability of 
ss.540 to 545 and 
547.
1026. (1) The provisions of articles 540 to 545 and 547 shall
apply to any person who has unduly received a thing, according as
to whether he has received it in good or in bad faith.
(2) The provisions of articles 548, 549 and 550 shall apply to
any such person in all cases.
Limitation of 
action for recovery 
of what has been 
unduly given.
1027.    The action for the recovery of that which may have been
unduly given, unless prescribed under any of the provisions
contained in the title relating to prescription, shall be prescribed by
the lapse of two years from the day on which the person to whom
the action is competent shall have discovered the mistake.
190               CAP.16. ħ                CIVIL CODE
Payer by mistake 
cannot recover 
from third party.
1028.    Any person who has given a thing by mistake cannot
recover it from a third party to whom it was, under any title
whatsoever, transferred by the party who had received it.
§  II. O F  T ORTS AND  Q UASI-TORTS
Fortuitous damage. 1029.    Any damage which is produced by a fortuitous event, or
in consequence of an irresistible force, shall, in the absence of an
express provision of the law to the contrary, be borne by the party
on whose person or property such damage occurs.
Proper use of one’s 
right.
1030.    Any person who makes use, within the proper limits, of a
right competent to him, shall not be liable for any damage which
may result therefrom.
Liability for 
damage caused 
through one’s 
fault.
1031.    Every person, however, shall be liable for the damage
which occurs through his fault.
When a person is 
deemed to be in 
fault.
1032. (1) A person shall be deemed to be in fault if, in his own
acts, he does not use the prudence, diligence, and attention of a
bonus   paterfamilias.
(2) No person shall, in the absence of an express provision of
the law, be liable for any damage caused by want of prudence,
diligence, or attention in a higher degree.
Culpable 
negligence.
1033.    Any person who, with or without intent to injure,
voluntarily or through negligence, imprudence, or want of
attention, is guilty of any act or omission constituting a breach of
the duty imposed by law, shall be liable for any damage resulting
therefrom.
Liability of person 
having charge of 
minor or person of 
unsound mind.
1034.    Any person having the charge of a minor or of a person of
unsound mind shall be liable for any damage caused by such minor
or person of unsound mind, if he fails to exercise the care of a
bonus paterfamilias  in   order to prevent the act.
Damage caused by 
children under nine 
years, etc. 
1035.    Persons of unsound mind, children under nine years of
age, and, unless it is proved that they have acted with a
mischievous discretion, children who have not attained the age of
fourteen years, shall not be bound to make good the damage caused
by them; saving, where competent, any action of the party injured
against such persons as may be liable for such damage, under the
provisions of the last preceding article.
Power of court to 
order damage to be 
made good out of 
property of minor, 
etc.
1036.    Nevertheless, where the party injured cannot recover
damages from such other persons, because they are not liable or
because they have no means, and the said party has not, by his own
negligence, want of attention, or imprudence, given occasion to the
damage, the court may, having regard to the circumstances of the
case, and particularly to the means of the party causing the damage
and of the injured party, order the damage to be made good, wholly
or in part, out of the property of the minor or of the person of
unsound mind referred to in the last preceding article.
     CIVIL CODE            ġ CAP. 16.             191
Employment of 
incompetent 
person.
1037 .   Where a person for any work or service whatsoever
employs another person who is incompetent, or whom he has not
reasonable grounds to consider competent, he shall be liable for
any damage which such other person may, through incompetence in
the performance of such work or service, cause to others.
Persons 
undertaking work 
without necessary 
skill.
1038.    Any person who without the necessary skill undertakes
any work or service shall be liable for any damage which, through
his unskilfulness, he may cause to others.
Liability of hotel-
keepers.  
Substituted by: 
II.1966.21.
Amended by: 
XIII.1983.5.
1039. (1) A   hotel-keeper shall be liable up to an amount not
exceeding seventy-five liri for any damage to or destruction or loss
of property brought to the hotel by any guest.
(2) The liability of a hotel-keeper shall be unlimited -
( a ) if the property has been deposited with him; or
( b ) if he has refused to receive the deposit of property
which he is bound under the provision of the next
following sub-article to receive for safe custody; or
( c ) in any case in which the damage to, or destruction or
loss of, property has been caused, voluntarily or
through negligence or lack of skill, even in a slight
degree, by him or by a person in his employment or by
any person for whose actions he is responsible.
(3) A hotel-keeper shall be bound to receive for safe custody
securities, money and valuable articles except dangerous articles
and such articles as having regard to the size or standard of the
hotel are cumbersome or have an excessive value.
(4) A hotel-keeper shall have the right to require that any
articles delivered to him for safe custody shall be in a fastened or
sealed container.
(5) The provisions of sub-articles (1) and (2) of this article
shall not apply if the guest, after discovering the damage,
destruction or loss, does not inform the hotel-keeper without undue
delay, or if the damage to, destruction or loss of, property is due - 
( a ) to a fortuitous event or to irresistible force; or
( b ) to a reason inherent in the nature of the property
damaged, destroyed or lost; or
( c ) to an act or omission of the guest by whom it was
brought into the hotel, or of any person, other than the
hotel-keeper, to whom such guest may have entrusted
the said property or of any person in the employment
of such guest or accompanying him or visiting him.
(6) Any tacit or express agreement between a hotel-keeper and
a guest entered into before any damage to, destruction or loss of,
property has occurred and purporting to exclude, reduce or make
less onerous the hotel-keeper’s liability as established in this article
shall be null and void:
Provided that, in the cases referred to in paragraphs ( a ) and ( c ) of
sub-article (2) of this article where the damage to, or destruction or
192               CAP.16. ħ                CIVIL CODE
loss of, property has not been caused by a person mentioned in the
said paragraph ( c )   voluntarily or through gross negligence, any
agreement signed at any time by the guest whereby the hotel-
keeper’s liability is reduced to an amount being not less than
seventy-five liri shall be valid.
(7) In this article and in article 2009 of this Code "guest"
means a person who stays at the hotel and has sleeping
accommodation put at his disposal therein, but is not an employee
in the hotel.
(8) In this article, any reference to a "hotel-keeper", except in
so far as the liabilities thereby established are imposed on the
hotel-keeper, shall be construed as including reference to the
person in charge of the hotel or of the reception of guests in the
hotel, and any reference to "loss" shall be deemed to include by
theft.
Liability of owner 
of animal.
1040.    The owner of an animal, or any person using an animal
during such time as such person is using it, shall be liable for any
damage caused by it, whether the animal was under his charge or
had strayed or escaped.
Liability of owner 
of building.
1041.    The owner of a building shall be liable for any damage
which may be caused by its fall, if such fall is due to want of
repairs, or to a defect in its construction, provided the owner was
aware of such defect or had reasonable grounds to believe that it
existed.
Rule as to liability 
of occupier of 
building in case of 
damage caused by 
the fall of a thing. 
1042.    Where any damage is caused to any person by the fall of a
thing suspended or placed in a dangerous position, or by a thing or
matter thrown or poured from any building, the occupier of such
building, provided he himself has not committed the act, and has
not in any way contributed thereto, shall not be liable except in so
far as the provisions contained in this Title relating to the liability
of a person for damage caused by another, are applicable to him.
Intoxication. 1043.    An action for damages shall lie even where the party
causing the damage was at the time in a state of intoxication.
Aiders or abettors. 1044.    Where damage has been unjustly caused, any person who
has wilfully contributed thereto with advice, threats, or commands,
shall also be liable.
Measure of 
damages.  Amended 
by: III.1938.2; 
XXI.1962.17.
1045. (1) The damage which is to be made good by the person
responsible in accordance with the foregoing provisions shall
consist in the actual loss which the act shall have directly caused to
the injured party, in the expenses which the latter may have been
compelled to incur in consequence of the damage, in the loss of
actual wages or other earnings, and in the loss of future earnings
arising from any permanent incapacity, total or partial, which the
act may have caused.
(2) The sum to be awarded in respect of such incapacity shall
be assessed by the court, having regard to the circumstances of the
case, and, particularly, to the nature and degree of incapacity
caused, and to the condition of the injured party.
     CIVIL CODE            ġ CAP. 16.             193
Damages to heirs 
of deceased party. 
Substituted by: 
III.1938.3.
1046.    Where in consequence of the act giving rise to damages
death ensues, the court may, in addition to any actual loss and
expenses incurred, award to the heirs of the deceased person
damages, as in the case of permanent total incapacity, in
accordance with the provisions of the last preceding article.
Where damage 
consists in 
depriving person of 
use of his own 
money.  
Amended by: 
XXXXIX.1939.2; 
VI.1983.3.
1047. (1) The damage which consists in depriving a person of
the use of his own money, shall be made good by the payment of
interest at the rate of eight per cent a year.
(2) If, however, the party causing the damage has acted
maliciously, the court may, according to circumstances, grant also
to the injured party compensation for any other damage sustained
by him, including every loss of earnings, if it is shown that the
party causing the damage, by depriving the party injured of the use
of his own money, had particularly the intention of causing him
such other damage, or if such damage is the immediate and direct
consequence of the injured party having been so deprived of the use
of his own money.
(3) The sum to be awarded in respect of such loss of earnings
shall be assessed by the court having regard to the circumstances of
the case.
Right of relief 
against party 
causing damage.
1048.    Where a person is liable for the damage caused by another
person, and discharges his liability, he may not seek relief against
the party causing the damage, except where the latter is also
answerable for such damage.
Joint and several 
liability where 
damage is caused 
maliciously.
1049. (1) Where two or more persons have maliciously caused
any damage, their liability to make good the damage shall be a joint
and several liability.
(2) Where some of them have acted with malice, and others
without malice, the former shall be jointly and severally liable, and
each of the latter shall only be liable for such part of the damage as
he may have caused.
Where part of 
damage caused by 
each of several 
persons cannot be 
ascertained.
1050. (1) Where the part of the damage which each has caused
cannot be ascertained, the injured party may claim that the whole
damage be made good by any one of the persons concerned, even
though all or some of them have acted without malice, saving the
right of the defendant to seek relief from the other or the others.
Cap. 12.
(2) In such case, it shall be lawful for the defendant to demand
that all the persons causing the damage be joined in the proceedings
in the manner and for the purposes referred to in article 962 of the
Code of Organization and Civil Procedure, and the court may
apportion among them the sum fixed by way of damages, in equal
or unequal shares, according to circumstances; saving always the
right of the injured party to claim the whole sum from any one of
the persons concerned who in regard to him shall be all condemned
jointly and severally.
194               CAP.16. ħ                CIVIL CODE
Contribution to 
damage by party 
injured.  
Amended by: 
III.1938..4; 
XXXIX.1939.3.
1051.    If the party injured has by his imprudence, negligence or
want of attention contributed or given occasion to the damage, the
court, in assessing the amount of damages payable to him, shall
determine, in its discretion, the proportion in which he has so
contributed or given occasion to the damage which he has suffered,
and the amount of damages payable to him by such other persons as
may have maliciously or involuntarily contributed to such damage,
shall be reduced accordingly.
Civil remedies in 
cases of 
corruption.
Added by:
XX. 2002.2.
1051A.  (1)  For the purposes of this article "corruption" means
requesting, offering, giving or accepting, directly or indirectly, a
bribe or any other undue advantage or prospect thereof, which
distorts the proper performance of any duty or behaviour required
of the recipient of the bribe, by the undue advantage or the prospect
thereof.
(2) Any person who claims to have suffered damage as a result
of corruption shall have a right of action to obtain compensation for
the damage caused to him by the act of corruption against the
persons who have committed or authorised the act of corruption or
who have failed to take reasonable steps to prevent the act of
corruption.
(3) The persons who have committed or authorised the act of
corruption and the persons who have failed to take reasonable steps
to prevent the act of corruption shall be jointly and severally liable
for the damages referred to in subarticle (2).
(4) Where the act of corruption has been committed by an
officer or employee of the Government or of a body corporate
established by law, the Government or as the case may be the body
corporate established by law shall itself be liable to make payment
for the damage caused by the act of corruption where:
( a ) the person claiming to have suffered the damage has,
on becoming aware of the improper behaviour of the
officer or employee, given such notice to the
Government or the body corporate, as the case may be,
to take such preventive measures as are reasonable in
the circumstances to prevent the commission of the act
of corruption;
( b ) the person claiming to have suffered the damages has
not himself in relation to the same matter induced any
officer or employee to commit the act of corruption, or
in any manner been party to it;
( c ) the person suffering the damage has taken all action
against the person liable for the damages in
accordance with subarticle (3) to recover the damages;
and
( d ) the Govemment or the body corporate, as the case may
be, has been made a party to the suit against the
persons liable for the damages in accordance with
subarticle (3) in order to defend its interests under this
subarticle:
Provided that the Government or the body corporate, as the
     CIVIL CODE            ġ CAP. 16.             195
case may be, shall only be liable for such part of the damages as are
not recovered from the persons liable therefor in accordance with
subarticle (3).
(5) No right for compensation for damages shall lie where the
party claiming to have suffered the damages has himself wilfully
been a party to the act of corruption:
Provided that nothing in this subarticle shall be construed
as precluding any person from recovering any payment made or
thing given, or the value thereof, where the payment has been made
or the thing has been given for an unlawful consideration.
(6) An action to recover damages under this article shall be
brought before the lapse of three years from the date that the person
claiming damages becomes aware or should have reasonably
become aware that damage has occurred or that an act of corruption
has taken place and of the identity of the person responsible
therefor or before the lapse of ten years from the date of the act of
corruption, whichever is the earlier, and no action may be brought
after the lapse of such time.
(7) Where any contract has been entered into by any person
(including the Government or any body corporate established by
law) and the contract or any clause thereon has been concluded by
an employee, officer or agent of such person following an act of
corruption in favour of such officer, employee or agent, the person
bound by such contract and whose officer, employee or agent has
been so corrupted, shall without prejudice to any right of action to
recover damages in accordance with this article have a right to take
action not later than a year after becoming aware of such corruption
or from the time when he should reasonably have become aware, to
annul the contract or any clause thereof which has been entered
because of such corruption:
Provided that no action may be brought after the lapse of
ten years from the date of the act of corruption.
Sub-title III
O F THE  V ARIOUS  K INDS OF  O BLIGATIONS
§  I. O F  C ONDITIONAL  O BLIGATIONS
O F  C ONDITIONS IN GENERAL AND OF THEIR  V ARIOUS  K INDS
Definition of 
conditional 
obligation.
1052.   An obligation is conditional when it is made to depend
upon an uncertain future event, either by suspending it until the
event happens, or by dissolving it if the event happens or does not
happen.
Casual and 
potestative 
conditions.
1053. (1) A condition is casual when it makes the obligation
depend upon a fortuitous event beyond the control of the debtor and
of the creditor.
196               CAP.16. ħ                CIVIL CODE
(2) A potestative condition is that which makes the obligation
depend upon an event which the one or the other of the contracting
parties has the power to bring about or to prevent.
(3) A mixed condition is that which makes the obligation
depend upon the will of one of the contracting parties, and, at the
same time, upon the will of a third party or upon a fortuitous event. 
Condition contrary 
to morality, etc.
1054.   Any condition contrary to morals, or to public policy, or
prohibited by law, or which imposes the performance of an
impossible thing, is void, and annuls the agreement dependent
thereon.
Effect of condition 
to forbear to do an 
impossible thing, 
etc.
1055. (1) The condition to forbear to do an impossible thing
does not void the obligation contracted on that condition.
(2) The condition, however, to forbear to do a thing contrary to
morals or to public policy or prohibited by law may void the
obligation.
Obligation is null if 
contracted under 
condition 
depending solely 
upon obligor.
1056. (1) Where an obligation is contracted on a condition
which makes the obligation depend solely upon the will of the
obligor, the obligation is null.
(2) Nevertheless, where the obligation depends upon an event
the happening of which is within the power of the obligor, he is
bound if the event happens.
Condition to be 
fulfilled according 
to the intention of 
the parties.
1057.    Every condition must be fulfilled in the manner in which
the parties have in all likelihood desired and intended that it should
be fulfilled.
Where obligation 
is contracted on 
condition that an 
event shall happen 
within a certain 
time.
1058. (1) Where an obligation is contracted on condition that
an event shall happen within an appointed time, such condition
shall be deemed to have failed if the time expires without the event
having happened.
(2) Where no time is fixed, the condition shall not be deemed
to have failed until it is certain that the event will not happen:
Provided that, where the condition consists in an act which can
be performed by the obligee, it shall be lawful for the court,
according to circumstances, to fix a time for the fulfilment of the
condition, and if, on the expiration of such time, the condition has
not been fulfilled, the obligation ceases.
Where obligation 
is contracted on 
condition that an 
event shall not  
happen within a 
certain time.
1059. (1) Where an obligation is contracted on condition that
an event shall not happen within an appointed time, the condition
shall be deemed to be fulfilled both if the time expires and the
event has not happened, as well as if, before the expiration of the
time, it is certain that the event will not happen.
(2) Where no time is fixed, the condition is not fulfilled until it
is certain that the event will not happen:
Provided that, where the condition consists in an act within the
power of the obligor, it shall be lawful for the court to fix a time,
and if the time expires and the event constituting the condition does
not occur, the condition shall be deemed to be fulfilled, and the
     CIVIL CODE            ġ CAP. 16.             197
obligor shall be bound to perform the obligation.
When a condition 
is deemed to be 
fulfilled.
1060. (1) The condition shall be deemed to be fulfilled if the
debtor who is bound under such condition is the person who has
impeded the fulfilment thereof.
(2) The provision of this article shall not apply in any case in
which the impediment is due to the exercise of a lawful right not
contemplated in the agreement.
Retroactive effect 
of condition.
1061. (1) A condition, on being fulfilled, shall have a
retroactive effect.
(2) If the creditor dies before the fulfilment of the condition,
his rights vest in his heirs.
Creditor may 
secure his rights 
before condition is 
fulfilled.
1062.    The creditor may, before the fulfilment of the condition,
take all the necessary steps for the preservation of his rights.
O F THE  S USPENSIVE  C ONDITION
Definition of 
suspensive 
condition.
1063. (1) A suspensive condition is that which makes the
existence of the obligation depend upon a future and uncertain
event.
(2) An obligation under a suspensive condition does not exist
before the event happens.
Where thing 
perishes or 
deteriorates before 
fulfilment of 
condition.
1064.   Where an obligation is contracted under a suspensive
condition, and the thing forming the subject-matter of the
agreement perishes or deteriorates before the condition is fulfilled,
the following rules shall be observed:
( a ) if the thing perishes entirely, without any fault of the
debtor, the agreement shall be ineffectual;
( b ) if the thing perishes entirely, through the fault of the
debtor, such debtor shall be liable to the creditor for
damages;
( c ) if the thing perishes in part only, or deteriorates,
without any fault of the debtor, the loss shall be borne
by the creditor, who shall be bound to receive the thing
in the state in which it is without any abatement of the
price thereof;
( d ) if the thing perishes in part, or deteriorates, through
the fault of the debtor, the creditor may elect either to
demand the dissolution of the agreement, or to claim
the thing in the state in which it is, with damages.
Where obligation 
is contingent on 
event which has 
already taken 
place.
1065.    An obligation contingent on an event which has already
happened, but is not yet known to the parties, shall be effectual as
from the day on which it was contracted, but the debtor may not be
compelled to perform it until the unknown event is ascertained.
198               CAP.16. ħ                CIVIL CODE
O F THE  R ESOLUTIVE  C ONDITION
Definition of 
resolutive 
condition.
1066. (1) A resolutive condition is that which, on being
accomplished, operates the dissolution of the obligation, and
replaces things in the same state as though the obligation had never
been contracted.
(2) Such condition does not suspend the performance of the
obligation, but, if the event provided for by the condition happens,
the creditor shall be bound to restore that which he may have
received.
Effect of express 
resolutive 
condition.
1067.    Where the resolutive condition is expressly stated in the
agreement, such agreement shall, upon the accomplishment of the
condition, be dissolved  ipso jure , and it shall not be lawful for the
court to grant any time to the defendant.
Resolutive 
condition is 
implied in bilateral 
contracts.
1068.   A resolutive condition is in all cases implied in bilateral
agreements in the event of one of the contracting parties failing to
fulfil his engagement:
Provided that in any such case, the agreement shall not be
dissolved  ipso jure ,   and it shall be lawful for the court, according to
circumstances, to grant a reasonable time to the defendant, saving
any other provision of law relating to contracts of sale.
Rights of creditor 
in an undischarged 
obligation.
1069. (1) Where the resolutive condition, whether express or
implied, relates to any case in which one of the parties fails to fulfil
his engagement, the party who is the creditor in the undischarged
obligation may, at his option, upon the accomplishment of the
condition, either demand the dissolution of the contract, or compel
the other party to perform the obligation, if this is possible.
(2) In either case the defendant may be condemned in damages.
§  II. O F  O BLIGATIONS WITH A  L IMITED  T IME
Time for 
performance of 
obligation.
1070. (1) Time is the period fixed for the performance of an
obligation.
(2) A   time may be established either by fixing a certain
specified day, or by reference to an event which will certainly
happen, although on an uncertain day.
Time does not 
suspend obligation.
1071.    Time shall not suspend the obligation, but shall only
delay the execution thereof.
Thing may not be 
claimed before 
expiration of time.
1072.    What is only due at a certain time, cannot be claimed
before the expiration of such time, but what has been paid in
advance, cannot be recovered even though the debtor at the time of
payment may not have been aware of the stipulation as to time.
     CIVIL CODE            ġ CAP. 16.             199
Time to be 
presumed 
stipulated in favour 
of debtor.
1073.    Time shall always be deemed to be stipulated in favour of
the debtor, unless it appears from the stipulation or from the
circumstances that it was also agreed upon in favour of the creditor.
Computation of 
time.
1074.    In computing a time the day shall be reckoned at twenty-
four hours: the month and the year according to the calendar. 
Dies a quo  not to 
be computed.
1075.    The day on which an obligation with a limited time is
contracted, or from which the time is to commence to run, shall not
be computed in the time itself.
Public holidays. 
Amended by: 
XXII.1976.4.
1076. (1) Public holidays shall not suspend the running of the
time:
Provided that where the last day of the time is a public holiday
the time shall not be deemed to have elapsed before the next
following day, not being a public holiday, shall have expired.
Cap. 12.
(2) For the purposes of this article, public holidays are those
days in which no ordinary court sitting may be held as provided in
article 109 of the Code of Organization and Civil Procedure.
Where no time is 
fixed for 
performance of 
obligation.
1077.    Where no time has been fixed for the performance of an
obligation, it shall be carried into effect forthwith, unless the nature
of the obligation, or the manner in which it is to be carried into
effect, or the place agreed upon for its execution, implies the
necessity of a time to be, if necessary, fixed by the court.
Where time for 
performance of 
obligation is left to 
the will of the 
debtor.
1078.   Where the time for the performance of the obligation has
been left to the will of the debtor, or where it has been agreed that
the debtor shall discharge the obligation when it will be possible
for him to do so, or when he will have the means for so doing, the
following rules shall be observed:
( a ) if the subject-matter of the obligation is the payment
of a sum of money, such obligation shall be performed
within two years, if the sum is due without interest, or,
within six years if the sum is due with interest;
( b ) if the subject-matter of the obligation is other than the
payment of a sum of money, the time within which the
obligation is to be performed shall be fixed by the
court according to circumstances.
When debtor 
cannot claim 
benefit of time.
1079.    A   debtor can no longer claim the benefit of time if he has
become insolvent, or if his condition has so changed as to endanger
the payment of the debt, or if by his own act he has diminished the
security which under the agreement he had given to the creditor, or
if he has failed to give the security agreed upon.
§  III. O F  A LTERNATIVE AND  P OTESTATIVE  O BLIGATIONS
How alternative 
obligation is 
discharged.
1080. (1) The debtor in an alternative obligation is released
therefrom by the delivery of one of the two things included in the
obligation.
200               CAP.16. ħ                CIVIL CODE
(2) The debtor may not compel the creditor to receive a part of
one thing and a part of the other.
Option granted to 
debtor.
1081.    The option shall belong to the debtor, unless it has been
expressly granted to the creditor.
Where party 
entitled to option 
fails to exercise it.
1082. (1) Where the party entitled to the option fails to
exercise such option within the time expressly agreed upon for the
purpose, the right of option shall vest in the other party.
(2) Where no such time has been agreed upon, it shall be
competent to the court to fix a time, and if the party having the
option shall fail to exercise it within such time, the right of option
shall vest in the other party.
Where one of two 
things promised 
could not form the 
subject of an 
obligation,
1083.    Where one of the two things promised could not form the
subject-matter of the obligation, such obligation shall be deemed to
be pure and simple with regard to the other thing.
or perishes. 1084. (1) An alternative obligation shall become pure and
simple with regard to the thing which remains, if one of the two
things promised perishes, or can no longer be delivered, even if this
happens through the fault of the debtor. The value of the thing
which perished cannot be offered in its stead.
(2) If both things perish and the debtor is in fault with regard to
one of them, he shall be bound to pay the value of the thing which
perished last.
When right of 
option is 
competent to 
creditor.
1085.   Where, in any of the cases referred to in the last
preceding article, the right of option, under the agreement, was
granted to the creditor, the following rules shall be observed:
( a ) if only one of the things perishes, but without the fault
of the debtor, the creditor is bound to receive the thing
which remains: if the debtor is in fault, the creditor
may claim either the thing which remains or the value
of the thing which perished;
( b ) if both things perish, and the debtor is in fault with
regard to both or even to one of them, the creditor may
demand the value of either of such things, at his
choice.
Where both things 
perish without the 
fault of the debtor.
1086.   Where both things perish, without the fault of the debtor,
and before he is in default for delay in the delivery, the obligation
is extinguished in accordance with the provisions of article 1207.
Where alternative 
obligation includes 
more than two 
things.
1087.   The same rules shall apply where the alternative
obligation includes more than two things.
Definition of 
potestative 
obligation.
1088. (1) Where in an obligation having for its subject-matter
a determinate thing, it is competent to the debtor to release himself
by offering another thing, such obligation is said to be potestative.
(2) In any such case the creditor may only demand the thing
specified in the agreement.
     CIVIL CODE            ġ CAP. 16.             201
(3) If such thing perishes, the obligation is extinguished,
saving any other provision of the law in cases where the debtor is in
default for delay in the delivery of the thing, or the thing perishes
through his fault.
§  IV. O F  J OINT AND  S EVERAL  O BLIGATIONS
Obligation not to 
be presumed to be 
in solidum .
1089.   Joint and several liability is not presumed. If not declared
by law, it must be expressly stipulated.
O F  J OINT AND  S EVERAL  C REDITORS
Obligation  in 
solidum  in favour 
of several 
creditors.
1090 .   An obligation is joint and several in favour of two or more
creditors when it expressly vests each of such creditors with the
right of demanding the payment of the whole sum due, and the
payment made to any one of them discharges the debtor, even
though the benefit accruing from the obligation may be divided
between the several creditors.
Option of debtor to 
pay any one of the 
joint and several 
creditors.
1091 .   It shall be at the option of the debtor to pay any one of the
joint and several creditors unless previous notice shall have been
given to him by one of such creditors, by means of a judicial
demand or other judicial act.
Interruption and 
suspension of 
prescription.
1092. (1) Every act which interrupts prescription with regard
to one of the joint and several creditors shall also benefit the other
creditors.
(2) The suspension of prescription in favour of one of the joint
and several creditors shall not benefit the other creditors.
Effect of remission 
by one of the joint 
and several 
creditors.
 1093.   If one of the joint and several creditors remits the debt,
the release shall only be operative with regard to the share of such
creditor.
O F  J OINT AND  S EVERAL  D EBTORS
Joint and several 
debtors.
1094.   Debtors are jointly and severally liable when they are all
bound to the same thing in such a way that each of them may be
compelled to discharge the whole debt, and the payment made by
one of them operates so as to release the others as against the
creditor.
Obligation may be 
joint and several 
even though 
debtors are 
differently bound.
1095.   An obligation may be joint and several even though one
of the debtors is bound differently from the others for the payment
of the same thing, as when the obligation of one is conditional and
that of the other is pure and simple, or when one is allowed a time
for payment which is not granted to the other, or when the debtors
are bound to pay in different places.
202               CAP.16. ħ                CIVIL CODE
Creditor may sue 
any of the joint and 
several debtors.
1096.   The creditor may enforce his claim against any of the
joint and several debtors, at his option, and it shall not be lawful for
the debtor to set up the benefit of division.
Judicial demand 
against one of the 
debtors  in solidum   
does not bar a 
similar demand 
against any of the 
others.
1097.   A judicial demand made against one of the joint and
several debtors shall not operate so as to bar the creditor from
bringing a similar action against any of the others, even though, in
making the first demand, the creditor shall not have expressly
reserved such right
Demand for 
payment of 
interest.
1098.   A demand for the payment of interest, where competent,
made against one of the joint and several debtors, shall cause
interest to run against all the debtors.
Pleas which may 
be set up by joint 
and several 
debtors.
1099. (1) Where proceedings have been taken by the creditor
against a co-debtor jointly and severally liable, it shall be lawful
for such co-debtor to set up all such pleas as are personal to
himself, as well as those which are common to all the other co-
debtors.
(2) Nevertheless, such co-debtor may not set up any pleas
which are purely personal to any one only of the other co-debtors.
Interruption of 
prescription.
1100.    An acknowledgment of the debt by one of the joint and
several debtors, and every other act capable of interrupting
prescription with regard to any one of such debtors, shall interrupt
prescription also with regard to the other debtors and their heirs.
Acknowledge-
ment of debt by 
one of the heirs of 
the joint and 
several debtors.
1101. (1) An acknowledgment of the debt by one of the heirs
of one of the joint and several debtors, and every other act executed
against such heir, shall not, even though such acknowledgment or
act may interrupt prescription with regard to such heir, interrupt
prescription with regard to the other co-heirs, even though the debt
be a hypothecary debt, unless the obligation be indivisible.
(2) The interruption of prescription against one of the heirs of
one of the joint and several debtors, shall not be operative against
the other co-debtors except with regard to the part of the debt for
which such heir is liable.
(3) Nevertheless, where prescription has been interrupted
against all the heirs of the deceased co-debtor, such interruption
shall be operative against all the surviving co-debtors for the whole
debt.
Where thing 
perishes through 
the fault of one or 
more of the debtors 
in solidum .
1102. (1) Where the thing due perishes through the fault of
one or more of the joint and several debtors, or during the time in
which he or they is or are in default for delay in delivering the
thing, the other co-debtors shall not be released from the obligation
of paying the value thereof, but they shall not be liable for
damages.
(2) The creditor can only claim damages from the debtor or
debtors through whose fault the thing perished or who was or were
in default.
     CIVIL CODE            ġ CAP. 16.             203
Where one of the 
debtors becomes 
the heir of the 
creditor, etc.
1103.    Where one of the debtors becomes the heir of the creditor,
or when the creditor becomes the heir of one of the debtors, the
joint and several debt shall, as a result of such merger, be
extinguished with regard to the portion of such debtor.
Where creditor 
consents to the 
division of the debt 
in favour of one of 
the debtors.
1104.    Where the creditor consents to the division of the debt in
favour of one of the debtors, he shall not thereby be barred from
exercising his joint and several action against the other debtors in
respect of the whole debt.
Where creditor 
receives part-
payments.
1105. (1) The receipt of a portion of the debt in one or more
payments, from one or more of the joint and several debtors, shall
not imply any renunciation of the joint and several obligation,
either in regard to the debtor or debtors who shall have paid such
portion of the debt, or in regard to the others, even though the
creditor, in receiving such portion, shall not have expressly
reserved his joint and several action or his rights in general.
(2) The same rule shall apply with regard to any judicial
demand made by the creditor against one or more of the co-debtors
for a portion of the debt.
(3) Such renunciation shall not be presumed, even if the sum
received or claimed is equal to the share of the debt to which the
debtor who has paid, or against whom the demand for payment is
made, would be liable as between himself and the other co-debtors.
Debtors among 
themselves bound 
ratably.
1106.    The obligation contracted jointly and severally in favour
of the creditor, is  ipso jure  divided among the debtors who,
amongst themselves, are bound each for his share only.
Co-debtor 
discharging debt 
may only claim 
from the other co-
debtors their 
respective shares.
1107. (1) Where one of the co-debtors has wholly discharged a
joint and several debt, he may only claim from the other co-debtors
the share of each of them, together with interest as from the day of
payment, notwithstanding any assignment of rights.
(2) Where one of such other co-debtors is insolvent, the loss
occasioned by such insolvency shall be apportioned amongst all the
solvent co-debtors, including the one who has made the payment, in
proportion to each one’s share of the debt.
Where creditor 
discharges one of 
the co-debtors 
from his joint and 
several liability.
1108.    Where the creditor has renounced his joint and several
right of action with respect to one of the debtors, and one or more
of the other debtors becomes or become insolvent, the shares of
those who are insolvent shall be apportioned amongst all the
debtors, including those previously discharged by the creditor from
their joint and several liability, in proportion to each one’s share of
the debt.
Where subject-
matter of joint and 
several liability 
concerns one of the 
co-debtors only.
1109.    Where the matter in regard to which the joint and several
liability has been contracted, concerns only one of the co-debtors,
such co-debtor shall be liable for the whole debt towards the other
co-debtors, and the latter, in relation to such co-debtor, shall be
considered merely as sureties.
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 §  V.   O F  D IVISIBLE AND  I NDIVISIBLE  O BLIGATIONS
Divisible 
obligation.
1110.    An obligation is divisible or indivisible according as to
whether the thing or fact forming the subject-matter thereof, is or is
not susceptible of division, physically or intellectually.
Indivisible 
obligation.
1111.    An obligation is indivisible if, although the thing or fact
forming the subject-matter thereof is of its nature divisible, the
manner in which such thing or fact has been considered in the
obligation does not admit of a performance in part.
Joint and several 
obligation does not 
imply 
indivisibility.
1112.    An obligation shall not be deemed to be indivisible solely
on the ground that it is a joint and several obligation.
O F  D IVISIBLE  O BLIGATIONS
How divisible 
obligation is 
performed as 
between creditor 
and debtor.
1113. (1) An obligation, although susceptible of division, must
be performed, as between the creditor and the debtor, as if it were
indivisible.
(2) The divisibility shall only be applicable in regard to their
heirs, who can claim or are liable to pay the debt only to the extent
of the shares competent to them, or for which they are liable as
representing the creditor or the debtor.
When rule of 
divisibility does 
not apply to heirs 
of debtor.
1114. (1) The rule as to the divisibility of the obligation in
regard to the heirs of the debtor shall not apply in the following
cases:
( a ) when a determinate thing is due;
( b ) when, under the instrument of title, one of the heirs
alone is charged with the performance of the
obligation;
( c ) when from the nature or the subject-matter of the
obligation or from the purpose of the agreement it
appears that the intention of the parties was that the
debt should not be discharged in separate parts.
(2) In the cases referred to in paragraphs ( a ) and ( b ) of sub-
article (1) of this article, the heir who is in possession of the thing,
or who is alone charged with the debt, and, in the case referred to in
paragraph ( c ) of that sub-article, each of the heirs, may be sued for
the whole, saving his right of relief against the other co-heirs.
O F  I NDIVISIBLE  O BLIGATIONS
Liability of 
obligors under an 
indivisible 
obligation.
1115. (1) Where two or more persons have jointly contracted
an indivisible debt, each of such persons is liable for the whole of
the debt, although the obligation has not been contracted jointly
and severally.
(2) The same rule shall apply with regard to the heirs of a
     CIVIL CODE            ġ CAP. 16.             205
person who has contracted a similar obligation.
Rights of heirs of 
creditor in an 
indivisible 
obligation.
1116. (1) Each of the heirs of the creditor may demand the
entire fulfilment of an indivisible obligation.
(2) He cannot alone remit the whole of the debt, or receive,
instead of the thing, the value thereof.
(3) Where one of the heirs has alone remitted the debt, or
received the value of the thing, it shall not be lawful for any of the
other co-heirs to demand the indivisible thing without taking into
account the portion of the heir who has remitted the debt or
received the value.
Right of co-heir of 
debtor to demand 
that the other co-
heirs be made 
parties to the suit.
1117.    The heir of the debtor, on being sued in respect of the
whole debt, may demand an adjournment to join his co-heirs as
defendants in the suit, provided the debt be not of such nature that
it can only be discharged by the heir so sued, in which case
judgment may be given against such heir alone, saving his right of
relief against the other co-heirs.
§  VI. O F  O BLIGATIONS  W ITH A  P ENALTY  C LAUSE
Definition of 
penalty clause.
1118.    A penalty clause is a clause whereby a person, for the
purpose of securing the fulfilment of an agreement, binds himself
to something in case of non-fulfilment.
Effects of nullity of 
principal 
obligation and of 
penalty clause.
1119. (1) The nullity of the principal obligation produces the
nullity of the penalty clause.
(2) The nullity of the penalty clause does not produce the
nullity of the principal obligation.
Penalty to 
represent 
compensation for 
damages.
1120. (1) The penalty represents the compensation for the
damage which the creditor sustains by the non-performance of the
principal obligation.
(2) The creditor may sue for the performance of the principal
obligation instead of demanding the penalty incurred by the debtor.
(3) He cannot demand both the principal thing and the penalty,
unless the penalty shall have been stipulated in consideration of
mere delay.
When penalty 
becomes due.
1121. (1) Where the obligation consists in forbearing to do
something, the penalty becomes due as soon as the contravention
takes place.
(2) Where the obligation could not be performed except at a
certain time, the penalty shall be incurred as soon as such time
expires, unless another time has been fixed by agreement.
(3) In any other case, the penalty shall be incurred when the
debtor is put in default as provided in article 1130.
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Abatement or 
mitigation of 
penalty.
1122. (1) It shall not be lawful for the court to abate or
mitigate the penalty except in the following cases:
( a ) if the debtor has performed the obligation in part, and
the creditor has expressly accepted the part so
performed;
( b ) if the debtor has performed the obligation in part, and
the part so performed, having regard to the particular
circumstances of the creditor, is manifestly useful to
the latter. In any such case, however, an abatement
cannot be made if the debtor, in undertaking to pay the
penalty, has expressly waived his right to any
abatement or if the penalty has been stipulated in
consideration of mere delay.
(2) Where an abatement is to be made under this article, the
penalty shall be reduced in proportion to the unperformed part of
the obligation.
Penalty clause in 
indivisible 
obligation.
1123.   Where the subject-matter of the principal obligation
contracted with a penalty clause is an indivisible thing, the penalty
is incurred even where only one of the heirs of the debtor infringes
the obligation; and in such case, the penalty may be claimed either - 
( a ) against the defaulter, for the whole amount, or
( b ) against each co-heir for his respective share, or, where
a hypothecary action is competent, even for the whole
amount, saving the right of relief against the defaulter.
Penalty clause in 
divisible 
obligation.
1124. (1) Where the principal obligation contracted with a
penalty clause is divisible, and one of the heirs of the debtor
infringes the obligation, the penalty shall be incurred only by such
heir, and only for the share of the principal obligation for which he
is liable, and no action shall lie against those who have performed
the obligation.
(2) The rule laid down in sub-article (1) of this article shall not
apply to cases where the penalty has been stipulated in order that
payment should not be made in part, and one of the co-heirs has
prevented the performance of the obligation in its entirety. In any
such case, such co-heir is liable for the entire penalty, and the
others are liable for their respective shares only, saving their right
of relief against the defaulter.
Sub-title IV
O F THE  E FFECTS OF  O BLIGATIONS
Liability in case of 
non-fulfilment of 
obligation.
1125.    Where any person fails to discharge an obligation which
he has contracted, he shall be liable in damages.
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Obligation to give 
a thing includes 
obligation to 
preserve and 
deliver.
1126. (1) The obligation to give a thing carries with it the
obligation to deliver the thing, and to preserve it until the delivery.
(2) If the debtor is in default for delay in making the delivery,
the thing shall be at his risk and peril, even though before such
default it was at the risk and peril of the creditor.
Non-performance 
of an obligation to 
do.
1127.    In case of non-performance of an obligation to do, the
creditor may be authorized to cause the performance thereof
himself at the expense of the debtor.
Infringement of 
obligation to 
forbear to do.
1128.    Where the obligation is to forbear to do, the debtor who
infringes the obligation is liable in damages for the mere fact of
such infringement.
Rights of creditor 
where obligation to 
forbear to do is 
infringed.
1129.    Saving his action for damages, the creditor may demand
that anything done in breach of the obligation be undone, and may
be authorized to undo it himself at the expense of the debtor.
When debtor is in 
default.
1130. (1) Where the obligation is to give or to do, and a time is
fixed in the agreement, the debtor is in default by the mere lapse of
such time, saving, as regards the payment of interest under article
1141, the provisions of that article.
(2) If no time is fixed in the agreement, or if the time expires
after the death of the debtor, the debtor or his heir is not put in
default except by an intimation by a judicial act.
Liability for 
damages when 
time for 
performance of an 
obligation to give 
or to do expires.
1131.    The debtor is also liable for damages if the thing which he
undertook to give or to do could only be given or done within a
certain time, and he has suffered such time to expire.
Degree of 
diligence required 
in the performance 
of an obligation.
1132. (1) Saving any other provision of this Code relating to
deposits, the degree of diligence to be exercised in the performance
of an obligation, whether the object thereof is the benefit of only
one of the parties, or of both, is, in all cases, that of a  bonus
paterfamilias  as   provided in article 1032.
(2) This rule, however, is applied with a lesser or a higher
degree of strictness in certain cases specified in this Code.
Liability for 
damages in case of 
non-performance.
1133.    The debtor, even though there has been no bad faith on his
part, shall be liable for damages, where competent, both for the
non-performance of the obligation as well as for the delay in the
performance thereof, unless he proves that the non-performance or
delay was due to an extraneous cause not imputable to him.
No liability where 
non-performance 
was due to 
irresistible force.
1134.    The debtor shall not be liable for damages if he was
prevented from giving or doing the thing he undertook to give or to
do, or if he did the thing he was forbidden to do, in consequence of
an irresistible force or a fortuitous event.
Damages payable 
to creditor.
1135.    Subject to the exceptions and modifications hereinafter
specified, the damages due to the creditor are, generally, in respect
of the loss which he has sustained, and the profit of which he has
been deprived.
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Debtor liable only 
for damages which 
were or could have 
been foreseen.
1136.    The debtor shall only be liable for such damages as were
or could have been foreseen at the time of the agreement, unless the
non-performance of the obligation was due to fraud on his part.
Damages remote 
and contingent not 
recoverable.
1137.    Even where the non-performance of the obligation is due
to fraud on the part of the debtor, the compensation in respect of
the loss sustained by the creditor, and of the profit of which he was
deprived, shall only include such damages as are the immediate and
direct consequence of the non-performance.
Where agreement 
fixes sum payable 
as damages.
1138.    Where the agreement provides that the party who fails to
carry it out shall pay a certain sum by way of damages, it shall not
be lawful to award to the other party a greater or lesser sum.
Damages payable 
where obligation 
consists in the 
payment of a sum 
of money.  
Amended by: 
VI.1983.4.
1139.    Saving any other provision of law relating to suretyship or
partnership, where the subject-matter of the obligation is limited to
the payment of a determinate sum, the damages arising from the
delay in the performance thereof shall only consist in the interests
on the sum due at the rate of eight per cent  per annum.
Interest is due 
without necessity 
of proof of loss.
1140.    The interest referred to in the last preceding article is due,
without the creditor being bound to prove any loss.
From what day 
interest is due.
1141. (1) Where the obligation is of a commercial nature, or
the law provides that interest is to run  ipso jure ,   interest shall be
due as from the day on which the obligation should have been
performed.
(2) In any other case, interest shall be due as from the day of an
intimation by a judicial act, even though a time shall have been
fixed in the agreement for the performance of the obligation.
Compound 
interest.
1142.    The interest fallen due may bear other interest either, in
virtue of the foregoing provisions, from the day of a judicial
demand to that effect, or in virtue of an agreement entered into
after the interest has fallen due, provided, in either case, interest be
due for a period not less than one year.
Actio   debitor   debi-
toris mei.
1143.    It shall be competent to any creditor in order to obtain
what is due to him to exercise any right or action pertaining to his
debtor, with the exception of such rights or actions as are
exclusively personal.
Actio Pauliana.
Cap. 12.
1144. (1) It shall also be competent to any creditor in his own
name to impeach any act made by the debtor in fraud of his claims,
subject to the right of the defendant to plead the benefit of
discussion under the provisions of articles 795 to 801 of the Code
of Organization and Civil Procedure.
(2) Where such acts are under an onerous title, the creditor
must prove that there was fraud on the part of both contracting
parties.
(3) Where such acts are under a gratuitous title, it shall be
sufficient for the creditor to prove fraud on the part of the debtor 
(4) The action competent to the creditors under this article
cannot be exercised against minors, except to the extent of any
benefit which they may have derived, saving any other right of
     CIVIL CODE            ġ CAP. 16.             209
action competent to the creditors against any tutor who may have
taken part in the fraud.
Sub-title V
  O F THE  M ODES OF  E XTINCTION OF  O BLIGATIONS
How obligations 
are extinguished.
1145.   Saving the effects of the resolutive condition, and those
of prescription, obligations are extinguished by - 
( a ) payment; 
( b ) novation;
( c ) remission of the debt; 
( d ) set-off;
( e ) merger;
( f ) the loss of the thing;
( g ) rescission.
§  I. O F  P AYMENT
O F  P AYMENT IN GENERAL
Definition of 
payment.
1146.    Payment means the performance of an obligation, whether
the subject-matter of the obligation is to give or to do.
Payment implies 
debt.
1147. (1) Every payment implies a debt, and what is paid
without being due may be recovered.
(2) Nevertheless no action for recovery shall lie if the payment
was made in discharge of a natural obligation.
By whom payment 
may be made.
1148. (1) An obligation may be extinguished by payment
made by any person concerned in it, such as a co-obligor or a
surety.
(2) An obligation may also be extinguished by payment made
by a third party not concerned in the obligation, provided such third
party acts in the name and for the discharge of the debtor, or, if he
acts in his own name, provided he shall not be subrogated to the
rights of the creditor.
Creditor cannot 
refuse payment by 
third party.
1149. (1) A creditor cannot refuse payment tendered by a third
party, if the debtor is benefited thereby.
(2) The same rule shall be applicable even in the case of an
obligation to do, provided, in such case, the creditor is not
interested in having the obligation performed by the debtor himself,
and the performance is offered by the third party at the request of
210               CAP.16. ħ                CIVIL CODE
the debtor.
Where payment 
transfers the 
property of the 
thing.
1150. (1) Where the payment has for its object the transfer to
the creditor of the property of the thing paid, such payment shall
not be valid unless it is made by the person who is the owner of the
thing.
(2) Nevertheless, the payment of a sum of money, or of some
other thing which is consumed by use, cannot be recovered from
the creditor who has consumed such sum or thing in good faith,
although the payment has been made by a person who was not the
owner of the money or thing.
Annulment of 
payment made by 
person incapable of 
alienating.
1151.    Any payment made by a person incapable of alienating
may, in the interest of such person, be annulled.
To whom payment 
must be made.
1152. (1) Payment must be made to the creditor, or to a person
authorized by him, or by the court or by law, to receive it.
(2) A payment made to a person not so authorized becomes
valid if the creditor ratifies it or benefits thereby.
Payment made in 
good faith to 
person in 
possession of debt.
1153.    Payment made in good faith to a person who is in
possession of the debt is valid, even though the possessor has
subsequently suffered eviction in respect of the debt.
When payment 
made to creditor 
incapable of 
receiving it ,  is 
valid.
1154.    Payment made to the creditor is not valid if he is under
any disability to receive payment, unless the debtor proves that the
thing paid was applied to the benefit of such creditor.
Payment by debtor 
in contravention of 
garnishee order ,  
etc.
1155.    Payment made by a debtor to his creditor in contravention
of a garnishee order, or any other order of the court shall not be
valid with regard to the persons in whose favour the order was
issued or given; and such persons may, so far as their rights are
concerned, compel the debtor to pay again, saving his remedy
against the creditor.
Creditor cannot be 
compelled to 
receive a different 
thing ,  or a part-
payment.
1156.    A creditor cannot be compelled to receive a thing
different from that which is due to him, although the value of the
thing tendered is equal, or even greater; or to receive payment of
part of the debt, although the debt is divisible.
Delivery of a 
certain and 
determinate thing.
1157.    The debtor of a certain and determinate thing is
discharged by delivering it in the condition in which it is at the time
of delivery, provided he was not in default for delay before any
deterioration supervened, and such deterioration was not caused
through the fault of the debtor or of other persons for whom he is
responsible.
Delivery of thing 
determinate only as 
to its species.
1158.    Where the debt relates to a thing which is only
determinate as to its species, the debtor, in order to be discharged,
is not bound to deliver a thing of the best quality, but he cannot
deliver a thing of the worst quality.
Where payment is 
to be made.
1159. (1) Payment must be made at the place specified in the
contract.
     CIVIL CODE            ġ CAP. 16.             211
(2) If no place is specified, and the thing due is certain and
determinate, payment must be made at the place where the thing
forming the subject-matter of the payment was at the time of the
contract.
(3) Where the thing to be given in payment is a sum of money
or any other thing which can, without expense, be carried or sent,
and both the creditor and the debtor reside in the same island,
payment must be made at the house of the creditor.
(4) In any other case payment must be made at the place of
abode of the debtor.
Presumption of 
payment in the 
case of rent ,  
interest or other 
periodical 
payments.
1160.   In the case of rent, interest, or other periodical payments,
if it appears from receipts that the debtor has paid the sums falling
due at three consecutive periods, without any reservation as to
sums fallen due previously, the latter sums shall be presumed to
have been paid.
Presumption of 
payment in other 
cases.
1161. The debt shall likewise be presumed to have been paid if -
( a ) a general account has been taken between the parties
of what is due by the one to the other, at least three
times after the debt fell due, without any mention of
such debts or any other reservation including it; and
( b ) the demand in regard to such debt is made after the
death of the debtor, or after a period of not less than
three years from the day of the acquittance relating to
the last general account.
Inapplicability of 
presumption.
1162.   In each of the cases mentioned in the last two preceding
articles, the presumption of payment shall not arise if there are
circumstances from which it appears improbable that the debt was
paid, or from which it appears that there was some good reason for
not making a mention of the debt on the occasion of the payments
or accounts made or taken after the debt became due.
Expenses relating 
to payment.
1163. (1) The expenses relating to the payment shall be at the
charge of the debtor.
(2) The payer may require that the acquittance be, at his
expense, recorded in a public deed.
O F  P AYMENT WITH  S UBROGATION
Where payer is 
subrogated to 
rights of creditor.
1164.   A person who pays the debt of another person shall not be
subrogated to the rights of the creditor except in virtue of an
agreement, or by operation of law.
Subrogation by 
agreement.
1165. (1) The payer shall be subrogated to the rights of the
creditor, by agreement -
( a ) when the creditor subrogates the payer to all his rights
against the debtor, provided such subrogation is
expressly stated, and made simultaneously with the
212               CAP.16. ħ                CIVIL CODE
payment;
( b ) when the debtor borrows a sum for the purpose of
discharging his debt, and of subrogating the lender to
the rights of the creditor:
      Provided that such subrogation shall not be valid
unless -
(i) the loan and the discharge are made by a public
deed,
(ii) it is stated in the deed of loan that the sum has
been borrowed in order to discharge the debt,
and
(iii) it is stated in the discharge that the payment has
been made with the money furnished for the
purpose by the new creditor.
(2) The subrogation referred to in paragraph   ( b ) of sub-article
(1) of this article shall take place independently of the consent of
the creditor.
Subrogation by 
operation of law.
1166.   Subrogation takes place by operation of law in favour
of-
( a ) any person who, being himself a creditor, satisfies
another creditor having prior rights, by reason of
privilege or hypothec;
( b ) any person who, having acquired any immovable
property, employs the price in paying the creditors
having hypothecary rights thereon;
( c ) any person who, being bound with others or for others
for the payment of the debt, had an interest in
discharging it;
( d ) any heir with the benefit of inventory who, with his
own money, has satisfied debts of the inheritance.
Subrogation takes 
place both against 
sureties and 
debtors.
1167.   Subrogation, whether by agreement or by operation of
law, takes place against both the sureties and the debtors; but shall
not operate to the prejudice of the creditor when he has only been
paid in part; and, in any such case, the creditor may claim the
balance due to him in preference to the person from whom he shall
have received the part payment.
O F  A PPROPRIATION OF  P AYMENTS
Debtor may apply 
payment to the 
discharge of a 
particular debt.
1168. (1) It shall be competent to any debtor owing several
debts to declare, in making a payment, that such payment is to be
applied to the discharge of a particular debt.
(2) Nevertheless, the debtor may not, without the consent of the
creditor, appropriate the payment to a debt which has not fallen due
in preference to a debt which has fallen due, in any case in which
the time for the discharge of the former debt is presumed to have
     CIVIL CODE            ġ CAP. 16.             213
been agreed upon also in favour of the creditor.
(3) Nor may he appropriate the payment to the rent or interest
accruing due in respect of subsequent years in preference to the
rent or interest accrued due in respect of preceding years.
Debt bearing 
interest.
1169. (1) The debtor of a capital sum bearing interest cannot,
without the consent of the creditor, appropriate the payment to the
principal in preference to the interest.
(2) Any part-payment made generally on account of principal
and interest shall be first applied to the discharge of the interest. 
Where debtor 
accepts receipt 
containing 
appropriation made 
by creditor.
1170.   Where a debtor, owing several debts, accepts a receipt in
which the creditor has expressly applied the payment to a particular
debt, he may not demand that the payment be applied to any other
debt, unless there has been fraud or surprise on the part of the
creditor.
Rules as to 
appropriation of 
payments.
1171.  Subject to the provisions of the foregoing articles, where
no appropriation is made in the act of payment, the following rules
shall be observed:
( a ) the payment shall be applied to an undisputed debt in
preference to a disputed debt;
( b ) in case of several undisputed debts, the payment shall
be applied to the debt already fallen due at the time of
payment in preference to the debts not yet fallen due,
unless amongst the latter debts there is a debt for
which the debtor is liable to personal arrest, in which
case the payment shall be appropriated to such debt,
provided the time for payment was not agreed upon
also in favour of the creditor;
( c ) with regard to debts fallen due, the payment shall be
appropriated to a debt for which the debtor is liable to
personal arrest, or, in the absence of any such debt, to
a debt bearing interest, in preference to other debts;
( d ) the payment shall be appropriated to a debt secured by
suretyship in preference to another debt not so
secured; and to a privileged or hypothecary debt in
preference to a debt not secured by privilege or
hypothec;
( e ) the payment shall be applied to the debt which the
payer owed as the principal or the sole obligor in
preference to a debt owing by him as surety for others
or as a joint and several debtor;
( f ) in any case not expressly provided for in the preceding
rules, the appropriation shall be made to the debt
which, at the time of payment, the debtor had the
greatest interest in discharging;
( g ) where the debtor has no interest in discharging a
particular debt in preference to another, the
appropriation shall be made to the oldest debt: and in
the case of several debts contracted on the same day,
214               CAP.16. ħ                CIVIL CODE
and falling due at different times, the debt first fallen
due shall be deemed to be the oldest;
( h ) if all things are equal, the payment is applied in
discharge of each debt proportionately.
Rules as to 
appropriation 
where creditor 
obtains payment by 
causing sale of 
thing charged with 
debt.
1172.  Where the creditor obtains payment by causing the sale
of a thing charged with privilege or hypothec in security of his
claim, and receiving the proceeds thereof, the following rules shall
be observed:
( a ) the appropriation shall be made to the debt secured by
privilege or hypothec in preference to any other debt,
even if the debtor may have a greater interest in
discharging such other debt;
( b ) if the thing was charged with a privileged and with a
hypothecary debt, the appropriation shall be made to
the privileged debt; and if it was charged with several
hypothecary debts, the payment shall be applied to the
debt secured by the oldest hypothec;
( c ) if all things are equal, the payment is applied in
discharge of each debt proportionately.
O F  T ENDER OF  P AYMENT AND OF  D EPOSIT
When debtor can 
deposit sum or 
thing due.  
Cap. 12.
1173. (1) Where the creditor refuses to receive payment, the
debtor, or the person who can legally make payment, may, at the
expense of the creditor, deposit the sum or thing due in the manner
laid down in the Code of Organization and Civil Procedure.
(2) A deposit validly made shall be equivalent to payment, and
the thing deposited shall remain at the risk of the creditor.
Deposit to be 
preceded by refusal 
of valid tender.
1174. (1) The deposit shall not produce the effects stated in
the last preceding article unless it has been preceded by the refusal
of a valid tender.
(2) The tender may be made even verbally.
(3) The payment so tendered shall be deemed to be refused if it
is not accepted within the time of four days from the day of the
tender.
(4) The time shall be of eight days, if one of the parties resides
in Malta and the other in Gozo or Comino.
Conditions of a 
valid tender.
1175. A tender shall only be valid if -
( a ) it is made to the creditor capable of receiving payment
or to a person authorized to receive for him;
( b ) it is made by a person capable of paying;
( c ) it includes the whole sum due for capital and accrued
interest, and liquidated costs, and a further sum for the
unliquidated cost with a reservation to make up any
     CIVIL CODE            ġ CAP. 16.             215
deficiency;
( d ) the time, when stipulated in favour of the creditor, has
elapsed;
( e ) the condition under which the debt was contracted, is
fulfilled;
( f )  it is made at the place where under the agreement, or,
in the absence of an agreement, according to law,
payment is to be made.
When deposit may 
be withdrawn.
1176. (1) A deposit, so long as it is not accepted by the
creditor, may be withdrawn by the debtor, unless it shall have been
attached by a garnishee order sued out by the creditor or any other
person.
(2) Where the debtor withdraws the deposit, his co-debtors or
sureties are not discharged.
Where debtor has 
obtained a 
judgement 
declaring deposit 
to be valid.
1177.   Where the debtor has obtained a judgment declaring the
deposit to be valid, he can no longer, not even with the consent of
the creditor, withdraw the deposit to the prejudice of his co-debtors
or sureties.
Where creditor 
consents to 
withdrawal of 
deposit declared 
valid.
1178.    The creditor who has allowed the debtor to withdraw the
deposit after it had been declared valid, can no longer, for the
payment of the debt due to him, enforce any privilege or hypothec
with which such debt was secured; and such creditor shall no
longer enjoy a right of hypothec except from the day on which the
act whereby he agreed to the withdrawal of the deposit, being an
act made with the formalities necessary for creating a hypothec and
for being registered in the Public Registry, shall have been so
registered.
§  II. O F  N OVATION
When novation 
takes place.
1179.  Novation takes place - 
( a ) when the debtor contracts towards his creditor a new
debt, and this is substituted for the old one which is
extinguished;
( b ) when a new debtor is substituted for the old one, who
is discharged by the creditor;
( c ) when, in virtue of a new obligation, a new creditor is
substituted for the old one in regard to whom the
debtor is discharged.
By whom novation 
can be made.
1180. (1) Novation can only be effected between persons
capable of contracting.
(2) It is not to be presumed; the intention to effect it must
clearly appear.
(3) Novation by the substitution of a new debtor, may be
216               CAP.16. ħ                CIVIL CODE
effected without the concurrence of the former debtor.
No novation ,  
unless former 
obligation is 
extinguished.
1181. (1) Novation shall not take place if the former
obligation is not extinguished, although it is modified.
(2) The mere indication made by a debtor of a person who is to
pay in his stead shall not operate as novation.
(3) Nor shall the mere indication made by a creditor of a person
who is to receive in his behalf operate as novation.
Acceptance of 
securities in 
consideration of a 
former debt does 
not produce 
novation.
1182. (1) The acceptance of notes or other negotiable
securities in consideration of a former debt shall not operate as
novation unless it appears clearly from other circumstances that it
was intended to extinguish such former debt.
(2) Nor shall novation take place in respect of a debt which was
originally of a commercial nature, merely on the ground that such
debt is subsequently recorded in a notarial instrument, and secured
by a hypothec.
When delegation 
does not operate as 
novation.
1183.   The delegation by which a debtor gives to the creditor
another debtor, who binds himself towards the creditor, shall not
operate as novation, unless the creditor has expressly declared his
intention to release the debtor making the delegation.
Insolvency of 
person delegated.
1184.   The creditor who has released the debtor making the
delegation shall have no relief against such debtor if the person
delegated becomes insolvent, unless the creditor has expressly
reserved his rights to that effect, or the person delegated was, at the
time of the delegation, already insolvent or bankrupt or about to
become bankrupt.
Privileges ,  etc. 
securing former 
debt not to extend 
to substituted debt. 
1185.   Any privilege or hypothec securing the former debt shall
not extend to the substituted debt unless the creditor has made an
express reservation to that effect.
Property of new 
debtor not affected 
by original 
privileges ,  etc.
1186.    Where novation takes place by the substitution of a new
debtor, the original privileges and hypothecs securing the debt shall
not affect the property of the new debtor.
Novation between 
creditor and one of 
the joint and 
several debtors.
1187.   Where novation takes place between the creditor and one
of the joint and several debtors, the privileges and hypothecs of the
former debt may only be reserved as a charge on the property of the
party contracting the new debt.
Effects thereof. 1188. (1) The novation between the creditor and one of the
joint and several debtors shall release the other co-debtors, saving
the right of relief competent to the debtor contracting the new
obligation against the co-debtors in respect of their share of the
former debt discharged by him.
(2) A novation which takes place in respect of the principal
debtor shall discharge the sureties.
(3) Nevertheless, where the creditor demands the concurrence
of the co-debtors in the case referred to in sub-article (1) of this
article, or the concurrence of the sureties in the case referred to in
sub-article (2) of this article, and such co-debtors or sureties refuse
     CIVIL CODE            ġ CAP. 16.             217
to accept the new agreement, the former debt shall continue to
subsist.
Pleas which may 
be set up by the 
delegated debtor 
against his new 
creditor.
1189. (1) A delegated debtor who has accepted the delegation
cannot set up against his new creditor such pleas as he could have
set up against his original creditor, saving his right of relief against
the latter.
(2) The provisions contained in sub-article (1) of this article
shall not apply where the person making the delegation intended by
such delegation to make a gift to the person in whose favour the
delegation was made.
(3) Nor shall the said provisions apply with regard to pleas
depending on the condition of a person, such as the condition of a
minor, provided such condition existed at the time when the person
delegated accepted the delegation.
§  III. O F THE  R EMISSION OF  D EBTS
Remission in case 
of joint and several 
debts.
1190. (1) A remission or conventional discharge in favour of
one of the joint and several debtors shall discharge all the other co-
debtors, unless the creditor shall have made an express reservation
of his rights against them.
(2) Where such reservation is made, the creditor, in claiming
the debt, shall be bound to deduct the share of the release.
Effects of 
remission in regard 
to the surety.
1191. (1) A remission or conventional discharge in favour of
the principal debtor shall discharge the surety.
(2) The release of the surety shall not discharge the principal
debtor.
(3) The release of one of the sureties shall not discharge the
other co-sureties except to the extent of the share in respect of
which they were entitled to seek relief against the co-surety so
released.
Creditor to deduct 
from debt anything 
received from 
surety as 
consideration for 
release.
1192.   Anything which the creditor has received from the surety
to release him from his undertaking shall be imputed to the sum
due, in discharge of the principal debtor and the other sureties.
When surrender of 
instrument creating 
debt implies 
release.
1193. (1) The voluntary surrender of the original instrument
creating the debt, made by the creditor to the debtor, shall raise a
presumption of release, unless it is proved that the surrender was
made for some purpose other than that of discharging the debtor.
(2) The surrender of the aforesaid instrument made to one of
the joint and several debtors, produces the same effect in favour of
the other co-debtors.
218               CAP.16. ħ                CIVIL CODE
Absence of 
reservation of a 
debt in an 
acquittance 
relating to another 
debt. 
1194.   The mere absence of the reservation of a debt in an
acquittance relating to another debt shall not operate so as to raise a
presumption of the remission of the former debt.
Surrender of 
pledge.
1195.   The surrender of the pledge shall not be sufficient to raise
a presumption of the remission of the debt.
§  IV. O F  S ET-OFF
When set-off takes 
place.
1196. (1) Where two persons are mutual debtors, a set-off
takes place between them.
(2) Set-off operates  ipso jure , and even without the knowledge
of the debtors. The moment two debts exist simultaneously, they
are mutually extinguished to the extent of their corresponding
amounts.
Between which 
debts set-off takes 
place.
1197. (1) Set-off shall only take place between two debts both
of which have for their subject-matter a sum of money or a
determinate quantity of fungibles of the same kind, and which are
both for a liquidated amount and exigible.
(2) A debt shall be deemed to be for a liquidated amount if it is
certain even with respect to the quantity thereof.
Time for payment 
not to bar set-off.
1198.   Time for payment gratuitously granted shall not operate
so as to bar a set-off.
When set-off does 
not take place.
1199.  Set-off takes place whatever may be the consideration of
either of the debts, except in the following cases:
( a ) when a demand is made for the restoration of a thing
of which the owner was unjustly deprived;
( b ) when a demand is made for the return of a deposit, or
of a loan for use or  commodatum ;
( c ) in the case of a debt in respect of maintenance not
subject to attachment.
Surety can plead 
set-off.
1200. (1) It shall be competent to a surety to plead the set-off
of what the creditor owes to the principal debtor.
(2) It shall not be lawful, however, for the principal debtor to
plead the set-off of what the creditor owes to the surety.
(3) A joint and several debtor may not plead the set-off of what
is due by the creditor to a co-debtor except in respect of the share
of such co-debtor.
Where debtor 
accepts assignment 
of debt.
1201. (1) Where a creditor has assigned his rights to a third
party, and the debtor has unreservedly and unconditionally
accepted such assignment, such debtor may no longer set up against
the assignee any set-off which, before his acceptance of the
assignment, he could have set up against the assignor.
     CIVIL CODE            ġ CAP. 16.             219
(2) Where, however, the assignment was not accepted by the
debtor, but notice thereof was served upon him, the assignment
shall not be a bar to the set-off except with regard to such debts as
are subsequent to the notice.
Where same 
person owes 
several debts 
which may be set 
off.
1202 . Where one and the same person has several debts which
may be set off, the provisions of articles 1168, 1169 and 1171
relating to the appropriation of payments shall apply to the set-off.
Set-off does not 
affect rights of 
third party. 
1203. (1) Set-off shall not take place to the prejudice of the
rights acquired by a third party.
(2) A person who, being a debtor, becomes a creditor after the
debt has been attached in his hands by a garnishee order sued out
by a third party, cannot set up a set-off to the prejudice of the party
suing out the order.
Payment of a debt 
which was 
extinguished by a 
set-off.
1204.   A person who has paid a debt owing by him which,
according to law, was extinguished by a set-off, may not in suing
for the payment of the claim owing to him in respect of which he
failed to plead the set-off, enforce, to the prejudice of third parties,
any privilege, hypothec or other security attached to his claim,
unless he had good grounds for not being aware of the claim which
would have set off his debt.
§  V. O F  M ERGER
When merger takes 
place.
1205.   Where the condition of creditor and that of debtor become
united in the same person, a merger takes place by operation of law
and both the claim and the debt are extinguished.
Merger benefits 
surety.
1206. (1) The merger which takes place in the person of the
principal debtor, shall benefit the sureties.
(2) The merger which takes place in the person of the surety,
shall not produce the extinguishment of the principal obligation.
(3) The merger which takes place in the person of one of the
joint and several debtors, shall not benefit the other co-debtors
except to the extent of the share for which such co-debtor was
liable.
§  VI. O F THE  L OSS OF THE  T HING DUE
When loss of thing 
extinguishes 
obligation.
1207. (1) Where a certain and determinate thing forming the
subject-matter of an obligation perishes, or is placed  extra
commercium , or is lost so that it is absolutely not known whether it
exists, the obligation is extinguished, provided the thing perishes or
is placed  extra commercium  or is lost without the fault of the
debtor, and before he is in default for delay.
220               CAP.16. ħ                CIVIL CODE
(2) Even where the debtor is in default for delay but has not
assumed the risk of fortuitous events, the obligation is extinguished
if the thing would have equally perished in the possession of the
creditor if it had been delivered to him.
(3) The debtor must prove the fortuitous event which he
alleges.
(4) Whatever may have been the manner in which a thing
stolen perished or was lost, its loss shall not exempt the person
stealing it from the obligation of restoring its value.
Debtor to assign 
rights of action to 
creditor.
1208.   Where the thing perishes or is placed  extra commercium
or is lost without the fault of the debtor, the debtor is bound to
assign to the creditor any right or action for damages, to which he
may be entitled in respect of such thing.
§  VII. O F  R ESCISSION
Effects of 
rescission.
1209. (1) The rescission of a contract shall, unless the law
provides otherwise, operate so as to restore the parties to the
condition in which they were before the contract.
(2) Each party shall be bound to restore to the other any thing
received or obtained in consequence or by virtue of the contract.
(3) With regard to the fruits collected or the interest received
up to the date of the demand for rescission, the court may, having
regard to the circumstances of the case, direct a set-off of such
fruits or interest.
(4) Where the contract is rescinded on the ground of fraud or
violence, the party guilty of such fraud or violence shall also be
bound to restore to the other party the fruits which might have been
collected, and which, through his fault or negligence, have not been
so collected.
Rescission to 
operate against 
third parties.
1210. (1) Rescission shall operate also against third parties in
possession.
(2) It annuls any right or burden which may have been granted
or imposed over or on the thing which, in consequence of the
rescission, is to be restored.
When rescission is 
demanded in 
respect of a part 
only of the 
instrument.
1211. (1) Where an instrument contains several parts
independent of each other, it shall be lawful to demand the
rescission of one of such parts only.
(2) Where the several parts of the instrument are in any way
connected with each other, and the plaintiff has sued for the
rescission of one part only, it shall be lawful for the defendant to
demand, against the plaintiff or, if there are other parties interested
in the parts not included in the action, against such other parties,
the rescission of the whole instrument, or of all such parts as are
connected with each other.
     CIVIL CODE            ġ CAP. 16.             221
Grounds of 
rescission.  
Amended by: 
LVIII.1975.6.
1212.   Any agreement which is defective by reason of the
absence of any of the conditions essential to the validity of
contracts, or which is expressly declared by law to be null, shall be
subject to rescission.
Rescission on the 
ground of lesion. 
Amended by: 
LVIII.1975.7.
1213.   Rescission on the ground of lesion cannot be demanded by
a person who has attained majority.
Minors.
for rescission, in any kind of agreement not expressly excepted by
law, and whatever the extent of the lesion, unless it is of very small
consequence.
(2) Nevertheless, it shall not be competent even to a minor to
sue for rescission on the ground of lesion where such lesion is the
effect of a fortuitous and unforeseen event.
Other cases of 
lesion in the case 
of minors.
1215.   Rescission on the ground of lesion shall also be allowed in
favour of a minor if, although no actual loss to his prejudice is
made to appear, it is shown that the agreement renders him liable to
litigation or to considerable expense, or causes to him the loss of
any advantage to which he was entitled.
Where both 
contracting parties 
are minors.
1216.   It shall be competent to a minor to exercise the rescissory
action on the ground of lesion even though the other party to the
agreement be also a minor.
Where minor 
declares that he is 
of age.
1217. (1) The mere declaration made by a minor that he is of
age shall not operate to deprive him of the right to sue for
rescission.
(2) Nevertheless, it shall not be lawful for a minor to impeach
his obligation on the ground of his disability to contract, if he is
guilty of misrepresentation calculated to lead others to believe that
he is capable of contracting, and has, by such means, deceived the
other party.
Cases where 
minors cannot 
demand rescission ,  
except where such 
right would be 
competent to 
majors. 
Cap. 13.
1218.   Where the agreement is one with regard to which a minor
is, under the provisions of the Commercial Code, considered to be
of age, or is entered into by the minor by reason of his trade, or
where the obligation arises out of tort or quasi-tort, in such cases
the minor cannot demand the rescission of the contract except in
those cases in which it is competent also to a person of age to
demand it, saving in the case of tort or quasi-tort, the provisions of
articles 1035 and 1036.
Where minors are 
considered as 
being of age.
1219.   Where the formalities prescribed with regard to any act of
a minor or person interdicted, or to any act which concerns a minor
or person interdicted, have been observed, or where the acts
performed by the tutor or curator do not exceed the limits of his
administration, the minor or person interdicted shall, with regard to
such acts, be considered as being of age or not interdicted, saving,
where competent, his right of relief against the tutor or curator.
Disability to 
contract in cases of 
tort or quasi-tort.  
Substituted by: 
XLVI.1973.67.
1220.   Disability to contract shall not be a good ground for the
rescission of the obligation of a person interdicted if the obligation
arises out of tort or quasi-tort.
222               CAP.16. ħ                CIVIL CODE
Extent of 
reimbursement by 
minors and persons 
interdicted.  
Amended by: 
XLVI.1973.68.
1221. (1) Where minors or persons interdicted are entitled to
sue for the rescission of their obligations on the ground of their
disability, it shall not be competent to claim the reimbursement of
what was paid to them in pursuance of such obligations during the
time of minority or interdiction, except to the extent of the amount
accrued to their benefit.
(2) The provisions of this article shall also be applicable in the
case referred to in article 1216.
Limitation of 
rescissory action 
on the ground of 
violence ,  error ,  
etc.  
Amended by: 
XLVI.1973.69.  
1222. (1) Save where the law in any particular case prescribes
a shorter period, the right to bring an action for the rescission of a
contract on the ground of violence, error, fraud, or the disability of
a person interdicted, or minor, shall be barred on the expiration of
two years.
(2) The same rule shall apply with regard to any obligation
which is without consideration, or is founded on a false
consideration.
Day from which 
period of limitation 
begins to run.
1223. (1) The said period of limitation shall only begin to run,
in the case of violence, from the day on which the violence has
ceased, and, in the case of error, fraud or false consideration, from
the day on which the defect was discovered.
(2) In the case of an obligation without consideration the
period shall run from the day of the contract.
Limitation of 
rescissory action in 
other cases. 
1224.   In any other case not provided for in the last two
preceding articles, the right of action for the rescission of an
obligation shall be barred on the expiration of the period of five
years from the day on which such right may be exercised,
irrespectively of the state or condition of the person to whom such
right is competent, saving any other provision of this Code.
Right of action 
passes to heirs.
1225. The right of action for rescission shall pass to the heirs:
Provided that they cannot exercise such right except within the
time which was still available to their predecessors, saving any
other provision of law relating to the interruption or suspension of
prescription.
Plea of nullity. 1226. (1) The plea of nullity may at any time be set up by the
party sued for the performance of the contract in all cases in which
such party could have brought an action for rescission.
(2) Such plea is not subject to the prescription established in
articles 1222 and 1224.
Affirmation or 
ratification of 
obligation.
1227.   The affirmation or ratification of an obligation against
which an action or plea of rescission on the ground of nullity or on
any other ground was competent shall produce its effects between
the contracting parties without prejudice to the rights of third
parties.
When affirmation 
or ratification 
implies waiver of 
rescissory action. 
1228.    The affirmation or ratification shall not imply a waiver of
the action for rescission unless it is shown that the party affirming
or ratifying was aware of the defect giving rise to such action. 
     CIVIL CODE            ġ CAP. 16.             223
Affirmation or 
ratification may 
take place tacitly.
1229.   Saving the provisions of the last preceding article, the
affirmation or ratification may take place tacitly by the voluntary
performance of the obligation against which an action of rescission
is competent according to law, or by any other act disclosing an
intention to give effect to the obligation.
Affirmation or 
ratification of act 
which the law 
expressly annuls 
for want of 
formalities.
1230.   Saving any other special provision of the law, the
affirmation or ratification of any act which the law expressly
annuls for want of the requisite formalities, shall not validate such
act, unless the affirmation or ratification is made by means of an
instrument having all the formalities required for the validity of the
act so affirmed or ratified.
Affirmation or 
ratification of 
donation or 
testamentary 
disposition.
1231.   The provisions of the last preceding article shall not apply
to cases of affirmation or ratification of a donation or testamentary
disposition made after the death of the donor or testator by his heirs
or by other persons claiming under him. In any such case the
affirmation or ratification, although made tacitly by the heirs or
such other persons, shall imply a waiver on their part of the action
or plea of rescission.
Sub-title VI
O F THE  P ROOF OF  O BLIGATIONS AND THEIR  E XTINGUISHMENT
Proof of 
obligations and 
their 
extinguishment.  
Amended by: 
XIV.1913.1. 
Cap. 12. 
1232. (1) Where the law does not require that an obligation or
its extinguishment should result from a public deed or a private
writing, such obligation or its extinguishment may be evidenced by
means of witnesses or any other means allowed under the
provisions of the Code of Organization and Civil Procedure.
(2) A public deed is an instrument drawn up or received, with
the requisite formalities, by a notary or other public officer
lawfully authorized to attribute public faith thereto.
Transactions which 
must be expressed 
in public deed or 
private writing.  
Amended by: 
XIV.1913 . 2 .
1233. (1) Saving the cases where the law expressly requires
that the instrument be a public deed, the transactions hereunder
mentioned shall on pain of nullity be expressed in a public deed or
a private writing:
( a ) any agreement implying a promise to transfer or
acquire, under whatsoever title, the ownership of
immovable property, or any other right over such
property;
( b ) any promise of a loan for consumption or mutuum;
( c ) any suretyship;
( d ) any compromise;
( e ) any lease for a period exceeding two years, in the case
of urban tenements, or four years, in the case of rural
tenements;
( f ) any civil partnership; and
224               CAP.16. ħ                CIVIL CODE
Cap. 5. ( g ) for the purposes of the Promises of Marriage Law, any
promise, contract, or agreement therein referred to.
Cap. 12.
(2) Where, in the case of a private writing, the writing is not
signed by each of the parties thereto, it must be attested in the
manner prescribed in article 634 of the Code of Organization and
Civil Procedure.
Presumption of 
law.
1234.   Any person having in his favour a presumption
established by law, shall be exempted from any proof as to the fact
forming the subject-matter of the presumption.
Admissibility or 
otherwise of 
evidence to rebut 
presumption. 
1235. (1) Evidence to rebut a presumption established by law
shall be inadmissible only when on the ground of such presumption
the law annuls certain acts, or disallows any action or plea, without
any reservation of the right of producing evidence to the contrary.
(2) In any other case, evidence to rebut the presumption, shall
be admissible even though the law does not make an express
reservation as to the production of evidence to the contrary.
Title  V
O F  M ARRIAGE  C ONTRACTS
Marriage contracts. 
Substituted by: 
XXI.1993.77.
1236.   Except with regard to the acquisitions referred to in Sub-
title III of this Title, no partnership or community of property
between the spouses is established by law.
Parties may enter 
into other 
agreements not 
contrary to morals ,  
etc. 
Substituted by: 
XXI.1993.77.
1237. (1) It shall, however, be lawful for the future spouses to
enter into any other agreement, which is not contrary to morals, or
inconsistent with the rules contained in this and the following
articles of this Code.
(2) The spouses may, in an ante-nuptial or post-nuptial contract
agree that their property acquired during their marriage shall
remain separate or that it shall be governed by the system of
community of residue under separate administration under Sub-title
V of this Title, and without prejudice to sub-article (3) hereof, no
partnership or community of property in general, may be
established between the spouses except that referred to in this
article or in article 1236.
Cap. 168.
(3) The spouses may, without the intervention of any court,
whether alone or with others, and whatever system regulates their
property, form a limited liability company under the Commercial
Partnerships Ordinance * ; voting rights attached to shares registered
in the name of a spouse shall be exercised by the spouse in whose
name the shares are registered. The ownership of the shares in any
such company shall remain governed in accordance with the system
governing the property of the spouses.
*Repealed by Act XXV of 1995 (Cap. 386).
     CIVIL CODE            ġ CAP. 16.             225
Certain agreements 
may not be made.  
Amended by: 
XLVI.1973.70. 
Substituted by: 
XXI.1993.77.
1238. (1) It shall not be lawful for the future spouses to enter
into any agreement whereby either of them is established as head of
the family, or into any agreement in derogation of any of the rights
deriving from parental authority, or of the provisions of law
relating to minority, or of any prohibitory rule of law.
(2) Nevertheless, any stipulation that all the children, or any of
them, shall be brought up in the religion of either of the spouses
shall be valid.
Agreements may 
not be made in 
derogation of legal 
order of 
succession.
1239.    It shall not be lawful for the future spouses to enter into
any agreement or to make any waiver tending to vary the legal
order of succession either with respect to themselves in regard to
the succession of their children or descendants, or with respect to
the children between themselves, saving such testamentary
dispositions and such donations as are allowed under the provisions
of this Code.
Validity of certain 
promises made in 
marriage contracts.  
Amended by:  
XLVI.1973.71; 
XXI.1993.78.
1240. (1) A promise made in a marriage contract by the parent
of one of the future spouses to such future spouse - 
( a ) not to leave to such future spouse out of his or her
estate a portion smaller than that which such future
spouse would take on an intestacy; or
( b ) not to diminish such portion by any donation in favour
of his or her other children or of any other person; or
( c ) not to give or leave, by donation or will, to any of his
or her other children more than that which he or she
would give or leave to such future spouse, 
shall be valid.
(2) It shall also be lawful for either of the future spouses to
renounce the succession of any of his or her own parents or other
ascendants in return for what is given to him or her by such parent
or other ascendant by way of donation in contemplation of
marriage.
(3) Any such waiver, however, shall not be valid unless it is
expressly stated.
Marriage 
agreements by 
minor.  
Amended by: 
XLVI.1973.72. 
Substituted by: 
XXI.1993.79.
1241.   Marriage agreements entered into by a minor with the
consent of the parents or parent exercising parental authority, or
where both parents are absent, dead, interdicted or of unsound
mind, with the authority of the court, are valid.
Person under 
disability to 
contract.
1242.    The authority of the court shall, in all cases, be necessary
for the validity of a marriage agreement entered into by a person
who is under disability to contract.
Variation of 
marriage contract 
before marriage.
1243.   Any variation or counter-declaration made in respect of
the marriage contract by the future spouses before the celebration
of marriage shall not be effectual unless it is made with the consent
of all the parties to that contract.
226               CAP.16. ħ                CIVIL CODE
Post-nuptial 
agreements.  
Amended by: 
XXX.1981.9; 
XXI.1993.80.
1244. (1) After the celebration of the marriage, the spouses
may, with the authority of the court, vary their marriage
agreements, without prejudice to the rights of the children or of
third parties.
(2) Where no ante-nuptial agreement was made, the spouses
may also, with the authority of the court, enter into a marriage
contract.
(3) Any agreement prohibited by law in respect of a pre-nuptial
agreement is also prohibited in any post-nuptial agreement.
(4) After the celebration of the marriage the spouses may,
without the necessity of any authority of the court, substitute a
special hypothec for any general hypothec established in the
marriage contract.
Marriage contracts 
to be expressed in 
public deed ,
1245.   Any marriage contract, as well as any variation or
counter-declaration made in respect thereof, shall, on pain of
nullity, be expressed in a public deed.
and registered in 
Public Registry.
1246.    No marriage contract, variation or counter-declaration
shall be operative in regard to third parties, unless it is registered in
the Public Registry Office.
Notary to draw up 
note of reference.  
Cap. 55.
1247.   In case of any variation or counter-declaration, the notary
shall, under the penalties established in the Notarial Profession and
Notarial Archives Act, draw up a note of reference as in the case of
a deed of cancellation or rescission.
Provisions of this 
Sub-title 
substituted by: 
XXI.1993.81.
Sub-title I  *
O F THE  I NSTITUTES OF  D OWRY AND  D OWER
Abolition of 
institutes.
1248 .   The institutes of dowry and dower are hereby abolished.
Repealed by: 
XXI.1993.81.
§  I. O F  S ETTLEMENT OF  D OWRY
Articles 1249 to 1258, both inclusive, were repealed by Act XXI
of 1993.
Repealed by: 
XXI.1993.81.
§  II. O F THE  R IGHTS OF THE  H USBAND OVER THE  D OWRY
Articles 1259 to 1267 ,  both inclusive ,  were repealed by Act XXI
of 1993.
*For the application of the provisions of this Sub-title  see  article 89 of Act XXI of
1993.
     CIVIL CODE            ġ CAP. 16.             227
Repealed by: 
XXI.1993.81.
§  III. O F THE  I NALIENABILITY OF THE  D OWRY
Articles 1268 to 1299, both inclusive, were repealed by Act XXI
of 1993.
Repealed by: 
XXI.1993.81.
§  IV. O F  R ESTITUTION OF  D OWRY
Articles 1300 to 1312 ,  both inclusive ,  were repealed by Act XXI
of 1993.
Provisions of this 
Sub-title 
substituted by: 
XXI.1993.81. 
Sub-title II
O F  D OWER ( Dotarium )
Articles 1313 to 1315, both inclusive, were repealed by Act XXI
of 1993.
Provisions of this 
Sub-title 
substituted by: 
XXI.1993.82.
Sub-title III *
  O F THE  C OMMUNITY OF  A CQUESTS
Marriage produces 
community of 
acquests.
1316. (1) Marriage celebrated in Malta shall, in the absence of
an agreement to the contrary by public deed, produce  ipso jure
between the spouses the community of acquests.
(2) Marriage celebrated outside Malta by persons who
subsequently establish themselves in Malta, shall also produce
between such persons the community of acquests with regard to
any property acquired after their arrival.
Community of 
acquests may be 
established after 
marriage.
1317.    It shall be competent to the spouses, even after the
celebration of the marriage, with the authority of the court, to
establish the community of acquests which in virtue of the marriage
contract or other act had been excluded, or to cause the cessation of
the community of acquests established by contract or by operation
of law.
Provisions may not 
be derogated from.
1318.   It shall not be lawful for the spouses to derogate from the
provisions of this Code in so far as they relate to the community of
acquests.
When community 
begins and 
terminates.
1319.    The right of each of the spouses to the community of
acquests shall, saving any other provision of the law, commence
from the day of the celebration of the marriage and terminate on the
dissolution thereof.
*For the application of the provisions of this Sub-title  see  article 89 of Act XXI of
1993.
228               CAP.16. ħ                CIVIL CODE
Assets of 
community of 
acquests.
1320.   The community of acquests shall comprise -
( a ) all that is acquired by each of the spouses by the
exercise of his or her work or industry;
( b ) the fruits of the property of each of the spouses
including the fruits of property settled as dowry or
subject to entail, whether the husband or wife
possessed the property since before the marriage, or
whether the property has come to either of them under
any succession, donation, or other title, provided such
property shall not have been given or bequeathed on
conditions that the fruits thereof shall not form part of
the acquests;
( c ) saving any other provision of this Code to the
contrary, the fruits of such property of the children as
is subject to the legal usufruct of the father or of the
mother;
( d ) any property acquired with moneys or other things
derived from the acquests, even though such property
is so acquired in the name of only one of the spouses;
( e ) any property acquired with moneys or other things
which either of the spouses possesses since before the
marriage, or which, after the celebration of the
marriage, have come to him or her under any donation,
succession, or other title, even though such property
may have been so acquired in the name of such spouse,
saving the right of such spouse to deduct the sum
disbursed for the acquisition of such property;
( f ) fortuitous winnings made by either or both spouses,
and such part of a treasure trove found by either of the
spouses, as is by law assigned to the finder, whether
such spouse has found the treasure trove in his or her
own tenement, or in the tenement of the other spouse,
or of a third party:
   Provided that such part of the treasure trove as is
granted to the owner of the tenement shall belong
entirely to the party in whose tenement the treasure
trove is found.
Presumption with 
regard to acquests.
1321. (1) All the property which the spouses or one of them
possess or possesses shall, in the absence of proof to the contrary,
be deemed to be part of the acquests.
(2) Any property, however, which may have come to either of
the spouses under any title anterior to the marriage shall not be
included in the acquests, notwithstanding that such spouse may
have been vested with the possession of the property only after the
marriage.
Administration of 
the community of 
acquests.
Amended by: 
IV.1995.2.
1322. (1) The ordinary administration of the acquests and the
right to sue or to be sued in respect of such ordinary administration,
shall vest in either spouse.
(2) The right to exercise acts of extraordinary administration,
     CIVIL CODE            ġ CAP. 16.             229
and the right to sue or be sued in respect of such acts or to enter
into any compromise in respect of any act whatsoever, shall vest in
the two spouses jointly.
(3) Acts of extraordinary administration are the following:
( a ) acts whereby real rights over immovable property are
acquired, constituted or alienated;
( b ) acts constituting or affecting hypothecation of
property;
( c ) acts whereby immovable property is partitioned;
( d ) acts granting rights of use and, or, enjoyment over
immovable property;
( e ) donations other than those referred to in paragraph ( a )
of sub-article (2) of article 1753;
( f ) borrowing or lending of money, other than the deposit
of money in an account with a bank;
( g ) the acquisition of movable property or of any right of
use or enjoyment over movable or immovable property
the consideration for which is not paid on, or prior to,
delivery:
          Provided that this shall not apply to any debt incurred
for the needs of the family in terms of paragraph ( c ) of
article 1327, or to the hiring of movables or
immovables when the consideration therefor is
moderate in relation to the condition of the family and
the duration of the lease is for a short period;
( h ) the contracting of any suretyship;
( i ) the giving of a pledge;
( j ) the entering with unlimited liability in a commercial
partnership, or the subscribing to or acquisition of any
shares in a limited liability company which are not
fully paid up;
( k ) the transfer of a business concern as well as the
transfer of any share in a commercial partnership other
than a public company;
( l ) any act that may give rise to a special privilege in
terms of paragraph ( b ) of article 2010; and
( m ) any act of rescission of any act referred to in
paragraphs ( a ) and ( c ) of this sub-article, and any act
of declaration made  inter vivos  whereby any real right
over immovables is acknowledged or renounced.
(4) Any money deposited in a bank to the credit of a married
person may only be withdrawn by such married person and the
bank shall not enquire whether such money belongs to the
community of acquests or not.
(5) The provisions of sub-article (4) of this article shall
continue to apply even after the termination of the community of
acquests for any reason whatsoever and are without prejudice to the
230               CAP.16. ħ                CIVIL CODE
right of each of the spouses to his or her full share of the
community upon its partition.
Cap. 12.
(6) Either spouse may, by means of a public deed or a private
writing duly attested in terms of article 634 of the Code of
Organization and Civil Procedure, appoint the other spouse or any
other person, as his or her mandatory with regard to acts of
extraordinary administration and compromise.
(7) The notary publishing a public deed as is referred to in sub-
article (6) of this article, and the advocate or notary public attesting
a private writing as referred to in the same sub-article, shall in each
case warn the spouse so appointing a mandatory of the importance
and consequence of such appointment and shall in the public deed
or the private writing, as the case may be, declare that he has so
warned the spouse.
Refusal or absence 
of consent.
1323. (1) If one of the spouses refuses his or her consent to an
act of extraordinary administration, the other spouse may apply to
the competent court of contentious jurisdiction for authorisation
when the act of extraordinary administration is necessary in the
interests of the family:
Provided that the parties may, in such cases, choose to adopt the
procedures contemplated in article 6A to arrive at an agreement or
to have an arbitration between them.
Cap. 12.
(2) If one of the spouses is away from Malta or if there exists
any other impediment in respect of one of the spouses and in either
case there exists no authorisation by public deed or by private
instrument duly attested in terms of article 634 of the Code of
Organization and Civil Procedure, the other spouse may perform
such necessary acts of extraordinary administration of the acquests
which in terms of law require the consent of both spouses, and
which the court of voluntary jurisdiction may specifically
authorise; sohowever that the court may not in such cases authorise
the performance of all necessary acts of extraordinary
administration generally.
(3) The registration required by article 996 or 2033 as the case
may be, in respect of any act alienating the ownership or any real
right over immovable property, and any hypothecation whether
general or special shall contain also the name of the other spouse as
if such other spouse were a party to the deed of alienation or
hypothecation, and where such registration is made in the name of
one spouse only it shall in respect of third parties be operative only
in relation to the spouse in whose name it is registered.
Administration of 
trade ,  business ,  
etc.
1324 .   Normal acts of management of a trade, business or
profession being exercised by one of the spouses, shall vest only in
the spouse actually exercising such trade, business or profession
even where those acts, had they not been made in relation to that
trade, business or profession, would have constituted extraordinary
administration.
     CIVIL CODE            ġ CAP. 16.             231
Exclusion of a 
spouse from the 
administration of 
the community.
1325. (1) The competent court of contentious jurisdiction may
at the request of a spouse order the exclusion of the other spouse
either generally or limitedly for particular purposes or acts, from
the administration of the community of acquests, where the latter
spouse -
( a ) is not competent to administer; or
( b ) has mismanaged the community;
and in any such case the administration of the community of
acquests shall to the extent to which such spouse has been
excluded, vest exclusively in the spouse not so excluded.
(2) The spouse who has been so excluded from administering
the acquests may, if the grounds upon which he or she has been
excluded no longer subsist, request the court to reinstate such
spouse in the administration.
Cap. 56.
(3) Any order made in terms of this article shall be notified
within twenty-four hours by the registrar to the Director of the
Public Registry who shall keep the same in a special register and
keep a special index thereof. Such orders shall contain all
particulars of both spouses as are required for notes of enrolment
under the Public Registry Act and shall become operative with
regard to third parties upon such registration.
(4) Without prejudice to any order made in terms of sub-article
(1) of this article, in the case of the interdiction or incapacitation of
one of the spouses and until such interdiction or incapacitation
ceases, such spouse shall be excluded from the administration of
the acquests and in any such case the administration of the acquests
shall vest solely in the spouse not so excluded.
Acts performed 
without the 
necessary consent.
1326. (1) Acts which require the consent of both spouses but
which are performed by one spouse without the consent of the other
spouse may be annulled at the request of the latter spouse where
such acts relate to the alienation or constitution of a real or
personal right over immovable property; and where such acts relate
to movable property they may only be annulled where the rights
over them have been conferred by gratuitous title.
(2) An action for annulment may only be instituted by the
spouse whose consent was required and within the peremptory term
of three years from - 
( a ) the date when such spouse became aware of the act, or 
( b ) the date of registration, where such act is registerable,
or
( c ) the date of termination of the community of acquests,
whichever is the earliest.
(3) Notwithstanding the provisions of sub-article (2) of this
article, the right given by sub-article (1) of this article to a spouse
to request the annulment of an act shall lapse at the expiration of
three months from the day on which notice of the act shall have
been given to such spouse by means of a judicial act, unless within
such time of three months such spouse shall have instituted an
232               CAP.16. ħ                CIVIL CODE
action for such annulment.
(4) The spouse who has not instituted the action for annulment
within the stipulated time and who has not expressly or tacitly
ratified the act, shall nevertheless have an action to compel the
other spouse to reintegrate the community of acquests or, where
this is not possible, to make good the loss suffered.
(5) Saving the preceding provisions of this article, where in
any act which requires the consent of the other spouse and which
relates to movables, a spouse has acted unilaterally, there shall be
no right competent to the other spouse to demand the annulment of
the act; where however, the other spouse has not ratified such act,
whether expressly or tacitly, such spouse shall have an action to
compel the spouse who has acted unilaterally to reintegrate the
community of acquests, or where this is not possible, to make good
the loss suffered.
(6) The provisions of this article shall be without prejudice to
any right competent to a spouse under this Code or any other law.
Debts chargeable 
to the community.
1327.    Saving the provisions of article 1329, the assets forming
part of the community of acquests shall be charged only with the
following debts:
( a ) the burdens and obligations which encumber the assets
under the act of their acquisition;
( b ) the expenses and obligations incurred in the
administration of the acquests, except such expenses
as are incurred by acts which require the consent of
both spouses but which are performed by one spouse
only without the consent of the other spouse;
( c ) the expenses and obligations, even if incurred
separately, for the needs of the family including those
for the education and upbringing of the children;
( d ) every obligation which is contracted by the spouses
jointly;
( e ) debts relating to the ordinary repairs of the property of
either of the spouses, the fruits of which are included
in the acquests; and
( f ) any debt or indemnity due as a civil remedy by either
spouse where such indemnity is not due as a civil
remedy in respect of any offence wilfully committed.
Creditors of a par-
ticular spouse.
1328.   Creditors of a particular spouse shall, unless they enjoy a
lawful cause of preference, rank after the creditors of the
community of acquests.
Obligations 
separately 
contracted by 
either spouse.
1329. (1) Subject to the following provisions of this article,
the creditors of a spouse for debts which are not chargeable to the
community of acquests whether such debt has arisen before or after
the marriage, may, when such creditors cannot satisfy their claim
against the paraphernal property of such spouse, enforce their claim
in subsidium  against the assets forming part of the community of
acquests but only to the extent of the value of the share which such
     CIVIL CODE            ġ CAP. 16.             233
spouse has in the community of acquests.
(2) Saving the right of the debtor’s spouse to seek the judicial
separation of property, the debtor’s spouse shall not have a right to
oppose an act enforcing the credit against any property of the
debtor or of the community of acquests except where the property
upon which execution is being attempted is the paraphernal
property of such debtor’s spouse.
Where paraphernal 
property is subject 
to the debts of the 
community.
1330.   When the assets of the community of acquests are
insufficient to satisfy the debts which burthen it, the creditors of
such community may enforce their claim  in subsidium  against the
paraphernal property of the spouses:
Provided that where -
( a ) the debt is due as a civil remedy in respect of a wilful
offence committed by either spouse; or
( b ) the debt is one arising out of the exercise of a trade,
business or profession as is referred to in article 1324;
the creditors may not enforce their claim against the paraphernal
property of the spouse who has not given rise to the claim, but may
in such cases enforce their claim to the extent of any part remaining
unsatisfied by the assets of the community of acquests, against the
paraphernal property of the spouse giving right to such claim.
Reimbursement 
and restitution.
1331. (1) Each of the spouses is bound to reimburse the
community of acquests with any sum of money or the value of any
thing which he or she may have appropriated from the acquests to
satisfy debts which do not fall under the provisions of article 1327,
unless he can show that the act was one which was advantageous to
the community or was performed to satisfy the needs of the family.
(2) Each one of the spouses has a right to be reimbursed with
any sum of money or the value of any thing which has been taken
from his or her paraphernal property where such money or thing
was spent or consumed in connection with a debt or an investment
of the community of acquests.
(3) The spouse who is a creditor of the community of acquests
may demand to be assigned property of the community up to the
value of his or her credit. The reimbursement from the property of
the community of acquests shall be made first by assigning money,
then other movables and finally immovables.
(4) These reimbursements are to be made at the termination of
the community of acquests:
Provided that the court may allow that any such reimbursements
take place at an earlier date when the interests of the family so
require or permit.
Judicial separation 
of property.
1332. (1) The judicial separation of property may be
pronounced -
( a ) upon the interdiction or incapacitation of one of the
spouses; or
( b ) where the disordered state of affairs of one spouse or
234               CAP.16. ħ                CIVIL CODE
his or her conduct in relation to the administration of
the acquests jeopardises the interest of the community
of acquests, or of the family or of the spouse
requesting the judicial separation of property; or
( c ) where one of the spouses fails substantially in his or
her duty to contribute to the needs of the family in
accordance with article 3 of this Code; or
( d ) where one of the spouses has been excluded from the
administration in terms of article 1325, either
generally or to a great extent.
(2) The judicial separation of property may only be demanded
by either spouse or by his or her lawful representatives; sohowever
that such separation may not be demanded by the spouse or the
representatives of the spouse who has given rise to the causes for
judicial separation referred to in paragraphs   ( b ) or ( c ) of sub-article
(1) of this article.
(3) Where the judicial separation has been demanded by the
spouse excluded from the administration of the community of
acquests in terms of paragraph ( d ) of sub-article (1) of this article,
the court shall, where the judicial separation causes financial
damage to the other spouse, order the spouse demanding judicial
separation to pay compensation to the other party for the loss that
such party may have suffered because of the separation.
(4) In the judgment pronouncing the judicial separation of
property, the court shall direct that the community of acquests
between the spouses shall cease as from the day on which the
judgment becomes  res judicata :
 Provided that the court may however, without prejudice to any
right legally acquired by any third party, direct that the judgment
shall operate retrospectively to the date of the filing of the judicial
act introducing the cause upon which judgment is given.
(5) The creditors of either spouse or of the community of
acquests may impeach the separation pronounced by the court, even
though it may have been given effect to, if such separation has been
obtained in fraud of their rights.
(6) The court may where in its opinion circumstances so
warrant direct that the property comprised in the community of
acquests be not partitioned before the lapse of such period after the
cessation of the community of acquests as it may determine.
(7) Any direction given by the court in virtue of sub-article (6)
of this article, may, on good cause being shown, be changed or
revoked by the court.
(8) The demand for the judicial separation of property shall not
stay any action enforcing any debt of the community of acquests.
(9) Where a demand for the judicial separation of property has
been filed, a creditor of a particular spouse may proceed or
continue proceedings enforcing his claim against property of the
community of acquests and in any such case the spouse of the
     CIVIL CODE            ġ CAP. 16.             235
debtor may demand that half the proceeds of the sale of any object
belonging to the community of acquests shall remain deposited in
court on account of the share in the community of acquests of the
spouse of the debtor; sohowever that if such deposits exceed the
share of such spouse in the community of acquests any sum so
deposited in excess shall remain to the credit of the debtor spouse
and be attachable by his creditors.
(10)  Any judgment ordering the judicial separation of property
shall not be operative against third parties except from the day on
which such judgment shall have been registered in the Public
Registry.
Partition of the 
community.
1333.   The partition of the community of acquests shall be made
by assigning one-half of the assets and liabilities comprised in the
community to each of the spouses.
Provisions of this 
Sub-title 
substituted by: 
XXI.1993.82.
Sub-title IV *
O F  P ARAPHERNAL  P ROPERTY
Definition of 
paraphernal 
property.
1334. (1) Where the community of acquests or the community
of residue under separate administration operates between the
spouses, all property which is not included in paragraphs ( a )   to   ( f )
of article 1320 or is not dotal is paraphernal. Where the property of
the spouses is held under the system of separate property all
property which is not dotal is paraphernal.
(2) The management of paraphernal property shall appertain
exclusively to the spouse to whom such property belongs.
(3) For the support of the family, the spouses shall first use
income deriving from common property before income belonging
to one of them exclusively, and they shall first use capital which is
their common property or belongs to the community of acquests
before the capital belonging exclusively to one of the spouses.
Where a spouse 
appoints other 
spouse as agent.
1335.    Where one of the spouses appoints the other spouse as his
or her agent to manage his or her paraphernal property, the latter
spouse shall be liable to the first spouse in the same manner as any
other agent, sohowever that such spouse shall only be obliged to
render an account for the fruits if this is expressly stated in the
mandate.
Where a spouse 
enjoys property 
without  authority 
or with authority 
but without 
condition of 
accounting for 
fruit.
1336. (1) Where a spouse has enjoyed the paraphernal
property of the other spouse, without authority, but without
opposition, that spouse or the heirs of that spouse, upon the
dissolution of the marriage or upon the first demand of the spouse
to whom the property belongs, shall only be bound to deliver the
existing fruits, and shall not be accountable for fruits which shall
have been consumed up to that time.
* For the application of the provisions of this Sub-title  see  article 89 of Act XXI of
1993.
236               CAP.16. ħ                CIVIL CODE
(2) The same rule shall apply where such spouse has enjoyed
such property with authority but without the express condition of
accounting for the fruits.
Where spouse 
enjoys property in 
spite of opposition.
1337.   Where a spouse has enjoyed the property of the other
spouse in spite of opposition, he shall be answerable for all fruit
existing and consumed.
Provisions of this 
Sub-title 
substituted by: 
XXI.1993.82. 
Sub-title V *
O F  C OMMUNITY OF  R ESIDUE  U NDER  S EPARATE 
A DMINISTRATION
Community of 
residue under 
separate 
administration.
1338. (1) Where the future spouses in a marriage contract
stipulate that the property acquired by them during marriage shall
be governed by the system of community of residue under separate
administration the following provisions of this Sub-title shall
apply.
(2) The assets which shall be governed by the system of
community of residue under separate administration shall be all the
assets falling under paragraphs   ( a ) to ( f )   of article 1320.
How acquisitions 
are registered.
1339. (1) Under the system of community of residue under
separate administration the acquisitions made by each of the
spouses during the marriage shall be held and administered by the
spouse by whom such acquisitions are made, and subject to any
limitations contained in this Sub-title shall, in relation to third
parties, be dealt with by such spouse as if such spouse were the
exclusive owner thereof.
(2) Where under the system of community of residue under
separate administration property is acquired by the spouses jointly,
it shall be administered jointly. The share of each spouse in such
property may only be alienated  inter vivos , with the consent of the
other spouse, or where such consent is unreasonably withheld, with
the authority of the court of voluntary jurisdiction, or in a judicial
sale by auction at the instance of any creditor of such spouse.
Termination of 
community of 
residue under 
separate 
administration.
1340. (1) The community of residue under separate
administration shall, unless terminated earlier by mutual consent by
public deed with the authority of the court, terminate upon the
dissolution of the marriage; under the same circumstances,  mutatis
mutandis , as apply for the community of acquests under paragraphs
( b ) and ( c ) of sub-article (1) of article 1332; and upon the legal
separation of the spouses.
(2) Sub-articles (2), (4), (5), (9) and (10) of article 1332 shall
apply  mutatis mutandis  where the dissolution of community of
residue under separate administration is declared by judgment of
the court.
*For the application of the provisions of this Sub-title  see  article 89 of Act XXI of
1993.
     CIVIL CODE            ġ CAP. 16.             237
Calculation of 
residue.
1341. (1) At the termination of the community of residue
under separate administration, howsoever happening, the residue to
be accounted for by each spouse shall include any expense made by
that spouse solely in his or her interest out of assets governed by
the community and held by that spouse, and shall be subject to the
deduction of any amount paid out with paraphernal property of that
spouse for debts of that spouse relating to assets held by that spouse
and governed by the system of community of residue with separate
administration, as well as liabilities still outstanding by that spouse
incurred in respect of such assets.
(2) From the residue as determined in sub-article (1) there shall
be deducted any paraphernal debts of the spouse which are in
excess of that spouse’s paraphernal assets.
(3) The result as determined in sub-article (2) shall if it is not a
debit constitute the final residue of that spouse. If the result is in
debit there shall be considered to be no final residue for that
spouse.
(4) Where the final residue of one spouse is greater than the
final residue of the other spouse or where only one spouse has a
final residue, there shall be assigned to the spouse with the lesser
final residue or with no final residue, as the case may be, as much
of the final residue of the spouse with the greater final residue or
with the only final residue as is necessary so that each spouse may
have an equal share of assets forming the final residue of both
spouses.
Where debt is not 
paraphernal.
1342. (1) For the purpose of sub-article (2) of article 1341 any
debt which is not one mentioned hereunder is a paraphernal debt:
( a ) the burthens and obligations which encumber the
assets under the act of their acquisition;
( b ) the expenses and obligations incurred in the
administration of the acquests;
( c ) the expenses and obligations even if incurred
separately for the needs of the family including those
for the education and upbringing of the children;
( d ) debts relating to the ordinary repairs of paraphernal
property of the spouse the fruits of which are included
in the assets governed by the community of residue
under separate administration;
( e ) any debt or indemnity due as a civil remedy by a
spouse where such indemnity is not due as a civil
remedy in respect of any offence wilfully committed.
Rights of third 
parties.
1343. (1) Third parties may only exercise their rights against
the spouse who has contracted with, or incurred the debt towards,
them.
(2) At the termination of the community of the residue under
separate administration and after the assignment of any final
residue, the creditors of one spouse may however in relation to any
debt due to them arising before the termination of the community
238               CAP.16. ħ                CIVIL CODE
of residue under separate administration, claim  in subsidium
against the other spouse up to the amount if any of the assets of the
final residue of the debtor spouse assigned to the other.
Gratuitous 
alienations.
1344. (1) Where the system of community of residue under
separate administration operates between the spouses, a spouse
may not transfer  inter vivos  any of his assets under gratuitous title
except with the consent of the other spouse.
(2) Sub-article (1) of this article shall not apply to donations of
moderate value regard being had to the condition of the parties and
all other circumstances.
(3) An action for annulment of an act of alienation under
gratuitous title may only be instituted by the spouse whose consent
was required and within the peremptory term of three years from - 
( a ) the date when such spouse became aware of the act, or
( b ) the date of registration, when such act is registerable,
or
( c ) the date of termination of the community of residue
under separate administration,
whichever is the earliest.
Acts performed 
with intention to 
defraud. 
1345. (1) Where a spouse performs an act with the intention to
defraud the other spouse of the potential rights competent on the
termination of the community of residue under separate
administration such other spouse may exercise the action
contemplated in article 1144 of this Code as if he or she were a
creditor.
Such right shall be personal to the latter spouse or his or her heirs
and is not exercisable by the creditors of the spouse.
(2) An action under this article shall be prescribed by the lapse
of five years from -  
( a ) the date when such spouse became aware of the act, or
( b ) the date of registration, where such act is registerable,
or
( c ) the date of termination of the community of residue
under separate administration,
whichever is the earliest.
     CIVIL CODE            ġ CAP. 16.             239
Title  VI 
O F  S ALE
Sub-title 1
O F THE  C ONTRACT OF  S ALE
Definition of 
contract of sale.
1346.    A sale is a contract whereby one of the contracting parties
binds himself to transfer to the other a thing for a price which the
latter binds himself to pay to the former.
Completion of 
sale.
1347.   A sale is complete between the parties, and, as regards the
seller, the property of the thing is transferred to the buyer, as soon
as the thing and the price have been agreed upon, although the
thing has not yet been delivered nor the price paid; and from that
moment the thing itself remains at the risk and for the benefit of the
buyer.
Sale of things by 
weight ,  etc.
1348. (1) Nevertheless, where movables are not sold in bulk
but by weight, number or measure, the sale is not complete in that
the property does not pass to the buyer and the things sold remain
at the seller’s risk, until they are weighed, counted or measured.
(2) The buyer, however, may demand that the things be
weighed, counted or measured and delivered to him, or, in case of
non-performance of the obligation, payment of damages.
(3) The seller may also compel the buyer to perform his
obligation or, in default, to pay damages.
(4) The provisions of this article shall also apply where the
thing sold is an immovable and cannot exactly be determined
before it is measured.
Sale of things in 
bulk.
1349.   Where, on the contrary, the things are sold in bulk, the
sale is complete even though the things are not yet weighed,
counted or measured.
Definition of sale 
in bulk or by 
weight ,  etc.
1350. (1) A sale is said to be made in bulk, when the things are
sold for one and the same price, irrespectively of the weight,
number or measure of such things.
(2) A sale is said to be made by weight, number or measure,
when the price is agreed upon according to the weight, number or
measure, whether the sale is in respect of the whole quantity of the
things existing in a specified place or in respect only of a part
thereof.
(3) A sale is also said to be made by weight, number or
measure if the sale is in respect of a specified number of things or
of so many kilogrammes or measures of a specified thing, even
though one single price has been fixed in respect of such number of
240               CAP.16. ħ                CIVIL CODE
things or such quantities of a specified thing.
When things are to 
be tasted or tried.
1351. (1) In regard to things which, according to usage or by
virtue of an express agreement, are to be tasted or tried before the
purchase, the buyer shall not be bound until he has approved of
them.
(2) This, however, shall not apply where the thing, which,
according to usage only and not by virtue of an express agreement,
is to be tasted or tried before the purchase, has not to satisfy the
taste or the individual opinion of the purchaser, but the taste or trial
is only necessary in order to ascertain whether the thing is of good
and merchantable quality; and in any such case, if the thing is a
specific thing and the price has been agreed upon, both parties are
bound, but the contract shall be deemed to have been made under a
suspensive condition, and the buyer shall be bound to accept the
thing and pay the price thereof if it is proved that the thing is of a
good and merchantable quality, although he does not approve of the
thing.
Price. 1352. (1) The price must be in money.
(2) Nevertheless, the contract shall not cease to be a contract of
sale if, in addition to the sum of money agreed upon, the buyer
binds himself to give some thing in kind by way of a supplement to
the price.
How price is fixed. 1353. (1) The price must be fixed and stated by the parties.
(2) It may, however, be left to the decision of one or more
persons specified by the parties; and in such case if such person or
any of such persons is unwilling or unable to fix such price, the sale
is void.
Where price is to 
be fixed by 
experts.
1354.   The price may also be left to the decision of one or more
experts not specified by the parties; and, in such case, if the parties
fail to agree as to the expert or experts to be appointed, the
appointment shall be made by the court.
Where price is left 
to the decision of 
two or more 
persons.
1355.   In all cases where the price is left to the decision of two or
more persons, the price shall, if the persons are more than two, be
determined by the opinion of the majority; but if the persons are
only two and do not agree, or if they are more than two and fail to
agree between them in such a way that no majority of votes can be
obtained, an average shall be taken of the sums fixed by each of
them.
Sale at current 
price.
1356.   A sale can be made at the price current at a given time;
and such price shall be deemed to be the average current price at
the  place and time where and when the contract is to be performed.
Promise to sell.  
Amended by: 
XXVII.1976.2.
1357. (1) A promise to sell a thing for a fixed price, or for a
price to be fixed by one or more persons as stated in the foregoing
articles, shall not be equivalent to a sale; but, if accepted, it shall
create an obligation on the part of the promisor to carry out the
sale, or, if the sale can no longer be carried out, to make good the
damages to the promisee.
     CIVIL CODE            ġ CAP. 16.             241
(2) The effect of such promise shall cease on the lapse of the
time agreed between the parties for the purpose or, failing any such
agreement, on the lapse of three months from the day on which the
sale could be carried out, unless the promisee calls upon the
promisor, by means of a judicial intimation filed before the
expiration of the period applicable as aforesaid, to carry out the
same, and unless, in the event that the promisor fails to do so, the
demand by writ of summons for the carrying out of the promise is
filed within thirty days from the expiration of the period aforesaid.
Promise to sell at a 
fair price.
1358.   The provisions of the last preceding article shall also
apply to a promise to sell at a fair price.
Promise to sell ,  
with earnest.
1359.   Where in any promise to sell, earnest has been given, each
of the parties shall be at liberty to recede from the contract: the
party giving the earnest forfeiting such earnest, and the party
receiving the earnest returning double the amount thereof, saving
any other usage in regard to the particular contract in respect of
which earnest has been given.
Provisions relating 
to promise to sell ,  
applicable to 
promise to buy.
1360.   The provisions relating to a promise to sell, shall apply to
a promise to buy.
Expenses of sale.
Cap. 12.
1361. (1) All expenses of or incidental to the contract of sale,
including the expense necessary for freeing any immovable from
the fetters of any entail or from any hypothec, easement or other
burden to which the immovable may be subject, in accordance with
the provisions contained in Title II of Part II of Book Second of the
Code of Organization and Civil Procedure, shall be at the charge of
the buyer.
(2) Brokerage as well as any fee due to the experts or other
persons mentioned in article 1353 shall be borne by the seller and
buyer one-half each.
Brokerage.
regulated at the rate of one  per centum  in the case of sale of
movables, and two  per centum  in the case of sale of immovables.
Where sale or 
purchase is null.
1363. (1) The sale of immovable property shall be null if not
made by a public deed.
(2) It shall also be null if the purchase is made  pro persona
nominanda.
Interpretation of 
doubtful 
provisions.
1364.   Any provisions of a contract of sale which are doubtful or
ambiguous shall be interpreted against the seller or the buyer
according to the rules of interpretation relating to contracts in
general.
242               CAP.16. ħ                CIVIL CODE
Sub-title II
O F THE  P ERSONS WHO MAY  B UY OR  S ELL
Persons who may 
buy or sell.
1365.   All persons may buy or sell, except those who are by law
prohibited from so doing.
Contracts of sale 
between husband 
and wife.
1366.   A contract of sale between husband and wife is null,
except in the following cases:
( a ) when the wife assigns property to her husband in
payment of a sum which she owes to him in respect of
her dowry;
( b ) when the object of the sale or assignment which one of
the spouses makes to the other is the payment of a debt
due to the buyer or assignee, or the investment of
money belonging to such buyer or assignee:
  Provided that where in the cases aforesaid any indirect
advantage results to either of the spouses, it shall be lawful for the
heirs of the other spouse, or for any other person interested, to
demand that the contract be rescinded  pro tanto.
Sale by auction of 
property of either 
spouse at the suit 
of creditors.
1367.   The provisions of the last preceding article in so far as
they prohibit either of the spouses from buying property from the
other, shall not apply to cases where property is sold by auction on
the demand of the creditors of the spouse to whom such property
belongs.
Other persons 
restrained from 
buying certain 
property.
1368.   The sale, however, made, either directly or through
intermediaries, to tutors or curators in regard to property belonging
to the persons under their tutorship or curatorship, or to agents in
regard to property which they are authorized to sell is null, even
though such sale was made by judicial auction.
Sale or assignment 
of lawsuits ,  etc. ,  to 
judges or 
magistrates.
1369.   Any sale or assignment of lawsuits or of litigious rights or
actions made, either directly or through intermediaries, to any
judge or magistrate is also null.
Sub-title III
O F THE  T HINGS WHICH MAY BE  S OLD
Things which may 
be sold.
1370.   All things which are not  extra   commercium  may be sold,
unless the alienation thereof is prohibited by any special law.
Future things. 1371. (1) The sale of future things is conditional; and if the
thing sold shall not exist at all, the sale shall have no effect.
(2) Where, however, the subject-matter of the sale is an
expectancy of a future thing, the sale is absolute and unconditional,
and the buyer is bound to pay the price even though the thing shall
     CIVIL CODE            ġ CAP. 16.             243
not exist at all.
(3) In case of doubt, the sale is presumed to be conditional.
Sale of things 
belonging to 
another person. 
Amended by: 
XLIX.1981.6.
1372.  Saving the provisions of article 559 and the provisions
relating to Il-Monti in regard to pledges, the sale of a thing
belonging to another person is void:
  Provided that such sale may give rise to an action for damages
if the buyer was not aware that the thing belonged to another
person:
  Provided also that the nullity of such sale may in no case be set
up by the seller.
Sale of rights to 
succession of a 
living person.
1373.   The sale or assignment of any right to the succession of a
living person is also void, although such person shall have given
his consent thereto.
Sale of rights 
concerning grants ,  
etc. ,  made for 
maintenance.  
Cap. 12.
1374.    The sale or assignment of rights concerning any sum of
money or bequest granted or made expressly for maintenance or
any pension granted by the Government is also null, saving, in
regard to any garnishee order affecting such sum, bequest or
pension, other provisions of the Code of Organization and Civil
Procedure.
Things perished at 
the time of 
contract.
1375. (1) If at the time the contract of sale is made, the thing
has totally perished, the contract is void.
(2) If the thing has perished only in part, the buyer may elect
either to repudiate the contract or to demand the remaining part at a
price to be fixed proportionately by means of a valuation.
Respective rights 
where buyer or 
seller knew that 
thing had perished.
1376. (1) If the seller knew that the thing had perished, but
this was not known to the buyer, the latter may maintain an action
for damages.
(2) If, on the contrary, the seller did not know that the thing
had perished but this was known to the buyer, the latter shall not be
bound to pay the price but shall be liable for damages. If the price
has been paid, the buyer shall not be entitled to claim the refund
thereof.
Applicability of 
s.1376 where thing 
sold is  extra 
commercium ,   etc.
1377.   The provisions of the last preceding article shall also
apply where the sale is void on the ground that the thing was  extra
commercium  or was already the property of the buyer.
Sub-title IV
O F THE  O BLIGATIONS OF THE  S ELLER
Obligations of 
seller.
1378.   The seller has two principal obligations, namely, to
deliver, and to warrant the thing sold.
244               CAP.16. ħ                CIVIL CODE
§  I. O F  D ELIVERY
Delivery of 
immovable 
property.  
Cap. 12.
1379.    The delivery of immovable property takes place  ipso jure
on the publication of the contract of sale, saving, as regards the
delivery of possession of property sold by judicial auction, the
provisions of the Code of Organization and Civil Procedure.
Delivery of 
movable property.
1380.    The delivery of movable property takes place either by
handing the property to the buyer, or by handing to him the key of
the place in which the property is lying, or by handing to him the
documents of title the delivery of which operates, according to law,
the transfer of the property to which such documents refer, or by
causing the buyer to be acknowledged by the persons in whose
possession the property exists.
Delivery of 
movable property 
by mere consent.
1381.  The delivery of movable property takes place also by the
mere consent of the parties - 
( a ) when the thing sold is already in the possession of the
buyer; or
( b ) when the seller who has reserved to himself the
enjoyment of the thing sold acknowledges that he
holds the thing on behalf of the buyer; or
( c ) when the transfer of the thing sold cannot be effected
at the time of the sale:
  Provided that in the cases mentioned in paragraphs ( b ) and ( c ),
such delivery shall not operate to the prejudice of third parties.
Delivery of 
incorporeal things.
1382.   The delivery of incorporeal things takes place either by
the use which the buyer makes of such things with the consent of
the seller, or by handing over the documents of title in the case of
any right the title to which is transferable by endorsement or
delivery.
Expenses of 
delivery.
1383. (1) The expenses of delivery are at the charge of the
seller.
(2) Such expenses shall include those of weighing, counting or
measuring the thing, where the sale is made by weight, number or
measure.
(3) The expenses of weighing, counting or measuring are at the
charge of the buyer where the sale is made in bulk and the
weighing, counting or measuring is required by the buyer in order
to ascertain whether the thing sold is according to the quantity
stated or promised to him.
(4) The expenses of carriage are at the charge of the buyer.
Place of delivery. 1384.   Delivery must be made at the place where the thing was at
the time of the sale.
Failure of seller to 
deliver.
1385.   If the seller fails to make delivery at the time agreed
upon, the buyer may elect either to demand the dissolution of the
contract or to demand that he be placed in possession of the thing
sold, provided the delay has been caused solely by the seller.
     CIVIL CODE            ġ CAP. 16.             245
Liability of seller 
for damages.
1386.   In all cases, the seller is liable for damages if the buyer
has sustained any loss from the non-delivery of the thing at the time
agreed upon.
Goods arriving on 
a ship.
1387.   Where a person has bound himself to deliver goods to
arrive on a ship which he has reserved to name within a specified
time and such person fails to name the ship within the said time,
such person shall, besides being answerable for damages, be liable
to deliver, within a time to be fixed by the court, according to
circumstances, other goods of the same quality and quantity as
those forming the subject of the contract.
Failure to deliver 
goods arriving on a 
named ship within 
time agreed upon.
1388.   The same rule shall apply where a person has bound
himself to deliver goods to arrive on a ship named in the contract
and fails to make delivery within the time agreed upon, unless he
proves that he used due diligence for the goods to arrive within the
time agreed upon and that the default of arrival of such goods
within such time was due to a  vis major .
Failure to deliver 
things which have 
to be weighed ,  
counted or 
measured.
1389.  Where the seller has bound himself to deliver, within a
specified time, things which have to be weighed, counted or
measured, he shall not be deemed to perform the obligation if he
refuses to deliver the things to the buyer who presents himself to
take delivery thereof in sufficient time for the things to be weighed,
counted or measured before the expiration of the time so specified:
 Provided that where the seller is ready to make delivery of the
things in sufficient time so that the weighing, counting or
measuring thereof may be conveniently commenced before the
expiration of the specified time, it shall not be lawful for the buyer,
even though he shall have previously in vain presented himself to
take delivery of the things, to demand the dissolution of the sale,
saving his right to maintain an action for damages as provided in
articles 1385 and 1386.
Things not 
according to 
stipulated quality 
or sample.
1390.    If the thing which the seller offers to deliver is not of the
quality promised, or is not according to the sample on which the
sale was made, the buyer may elect either to reject the thing and
demand damages, or to accept the thing with a diminution of the
price upon a valuation by experts.
Payment and 
delivery are 
concurrent 
conditions.
1391.   The seller is not bound to deliver the thing, if the buyer
does not pay the price thereof, unless the seller has allowed the
buyer time for payment.
Seller not bound to 
deliver if buyer has 
become insolvent ,  
etc.
1392. (1) Nor shall the seller be bound to make delivery of the
thing, even though he has allowed the buyer time for the payment
of the price, if, since the sale, the buyer has by his own act
diminished the security which by the contract he had given to the
seller.
(2) Nor shall he be bound to make delivery if, since the sale,
the buyer has become a bankrupt, or insolvent, or his condition has
been so altered that the seller is in danger of losing the price.
(3) The same rule shall apply where, although the buyer was in
a state of bankruptcy or insolvency at the time of the sale, such
state did not reveal itself except after the sale and it was not known
246               CAP.16. ħ                CIVIL CODE
to the seller at the time of the sale.
(4) In the aforesaid cases, however, the seller is bound to
deliver the thing if the buyer gives him security for the payment of
the price at the time agreed upon.
State in which 
thing is to be 
delivered.
1393.   The thing must be delivered in the same state in which it
was at the time of the sale.
Fruits due or 
collected.
1394. (1) From the day of the sale, all fruits shall belong to the
buyer.
(2) In the case of a sale made under a suspensive condition, all
fruits which fall due or are collected before the fulfilment of the
condition shall belong to the seller.
Fructus pendentes. 1395.   The fruits which are uncut or unplucked at the time of the
sale, or, where the sale is made under a suspensive condition, at the
time of the fulfilment of the condition, shall belong to the buyer
although they had been sown by the seller.
Rent. 1396. (1) The rent of rural tenements which had not fallen due
at the time of the sale or at the time of the fulfilment of the
condition shall also belong to the buyer.
(2) In the case, however, of urban tenements or of movables,
the rent or the portion of the rent in respect of the period during
which the sale was made or the condition was fulfilled, shall be
divided between the seller and the buyer in proportion to the time
elapsed before the sale was made or the condition was fulfilled and
the time that elapsed afterwards.
Freight of voyage. 1397.   In the case of sale of a ship while on her voyage, the
freight of that voyage shall belong to the buyer.
Thing to be deliv-
ered with accesso-
ries ,
1398.    The obligation of delivering the thing shall include that of
delivering its accessories and everything that is intended for its
perpetual use.
in the quantity 
agreed upon.
1399.    The seller is bound to deliver the full quantity of the thing
as stipulated in the contract, subject to the modifications contained
in the following articles.
Sale  ad mensuram. 1400. (1) Where the sale of immovable property has been
made with an indication of the quantity at so much per measure, the
seller shall be bound to deliver to the buyer the quantity stated in
the contract if the latter requires it.
(2) If this cannot be done, or if the buyer does not require it,
the seller is obliged to accept a proportionate reduction of the price. 
If quantity is found 
to be larger.
1401.   If, on the contrary, in the case mentioned in the last
preceding article, the quantity is found to be greater than that stated
in the contract, the buyer shall be bound to pay a supplement:
 Provided that where the overplus exceeds the twentieth part of
the quantity stated in the contract, the buyer shall be at liberty to
repudiate the sale.
     CIVIL CODE            ġ CAP. 16.             247
Sale otherwise than 
ad mensuram.
1402.   In all other cases, whether the sale is in respect of a
specified and limited  corpus , or whether it is in respect of distinct
and separate tenements, or whether, in the sale, the measure is first
stated, or the  corpus  is first mentioned followed by an indication of
the measure, the indication of the measure will not entitle the seller
to any increase of price in respect of any excess in such measure,
nor the buyer to any diminution of price in respect of any
deficiency in such measure, unless the difference between the
actual measure and that stated in the contract is more than one-
twentieth whether in excess of or below the value of all the things
sold:
  Provided that no claim may be enforced for an increase or a
diminution of the price, notwithstanding that the difference is more
than one-twentieth, whether in excess of or below the aforesaid
value, if the thing was sold by judicial auction or if it was expressly
stipulated that there should be no warranty as to quantity or if the
thing was sold  tale quale , saving, where the sale was not made by
judicial auction, any remedy allowed in law in case of lesion.
Where increase of 
price is due.
1403.   Where in accordance with the provisions of the last
preceding article an increase of the price is to be paid on account of
an excess in the measure, the buyer may elect either to repudiate
the contract or, if he retains the tenement, to pay the overplus,
together with interest.
Duties of seller ,  
where buyer elects 
to repudiate 
contract.
1404.   In all cases in which the buyer is entitled to repudiate the
contract, the seller is bound to return to him, in addition to the price
if received by him, the expenses of the contract and any other
lawful expense incurred in connection with the sale.
Sale of two 
tenements by the 
same contract.
1405.   Where two tenements have been sold by one and the same
contract, and for one and the same price, the measure of each
tenement being specified in the contract, and it is found that one of
the tenements is smaller and the other larger than the measure
specified, set-off takes place to the extent of the difference; and an
action for an increase or diminution of price is only maintainable in
accordance with the rules set forth in the foregoing articles.
How increase or 
diminution of price 
is to be reckoned.
1406.   In all cases where an increase or a diminution of price is
due, the price shall be increased or diminished only to the extent by
which the excess or deficiency of the quantity is greater than that
allowed by law.
Limitation of 
action.
1407. (1) The action of the seller for an increase of the price,
and the action of the buyer for a diminution of the price or for
repudiation of the contract shall be barred by the lapse of two years
from the day of the contract.
(2) The said period of limitation shall run against absentees,
persons interdicted, married women and minors, if they claim under
a seller or a buyer against whom the running of the said period of
limitation is not suspended.
248               CAP.16. ħ                CIVIL CODE
§  II. O F  W ARRANTY
Warranty. 1408.    The warranty which the seller owes to the buyer is in
respect of the quiet possession of the thing sold and of any latent
defect therein.
O F  W ARRANTY OF THE  Q UIET  P OSSESSION OF THE  T HING SOLD
Implied warranty. 1409.   Although no stipulation of warranty has been made in the
contract of sale, the seller is in law bound to warrant the buyer
against any eviction which deprives him, in whole or in part, of the
thing sold, and against any easement or burden on the same,
claimed by others, and not stated in the contract.
Special agreement. 1410.    It shall be lawful for the parties, by special agreement, to
add to, or diminish the effects of such implied warranty, or to
stipulate that the seller shall not be liable to any warranty.
Liability of seller ,  
where warranty has 
been negatived.
1411.   Although it is agreed that the seller should not be subject
to any warranty, nevertheless he shall be liable to that warranty
which arises from his own act; and any agreement to the contrary is
void.
In case of eviction ,  
seller to return 
price.
1412.   Even in case of a stipulation of no warranty, the seller, in
case of eviction shall, in the absence of an express agreement to the
contrary, be bound to return the price.
Rights of buyer on 
eviction ,  when 
warranty is 
promised or 
implied.
1413.   Where there is a promise of warranty or where no
stipulation has been made in regard thereto, the buyer shall upon
eviction be entitled to claim from the seller -  
( a ) the return of the price;
( b ) the return of the fruits, if the buyer has been obliged to
return them to the owner who has recovered the thing;
( c ) all judicial costs, including those for giving notice of
the suit to the person from whom he derives his title;
( d ) damages, including the lawful expenses of the contract
and any other lawful expense incurred in connection
with the sale.
Decrease in value 
of thing at time of 
eviction.
1414. (1) Where, at the time of eviction, the thing sold has
decreased in value or has considerably deteriorated, either through
the negligence of the buyer or by irresistible force, the seller is still
bound to return the full price.
(2) Where, however, the buyer has derived a benefit from the
deterioration occasioned by him, the seller shall be entitled to
deduct from the price a sum corresponding to such benefit.
Increase in value. 1415.   If, at the time of eviction, the thing sold has increased in
value, even irrespective of the act of the buyer, the seller shall be
obliged to pay to the buyer the amount exceeding the price of the
sale.
     CIVIL CODE            ġ CAP. 16.             249
Repayment of 
expenses.
1416. (1) The seller is bound to repay to the buyer or to cause
to be repaid to him by the person who has recovered the tenement
all expenses incurred by him in connection with any repairs or
useful improvements made on the tenement.
(2) Where the seller has sold the tenement of another person in
bad faith, he shall be bound to pay to the buyer all expenses, even
decorative expenses, which the latter may have made on the
tenement.
Eviction from part 
of thing.
1417. (1) Where the eviction is only of part of the thing, and
such part is of such importance in relation to the whole that without
it the buyer would not have bought the thing, he may within a year
from the day on which the judgment as to the eviction has become
final and absolute, demand the dissolution of the sale.
(2) The said time shall run as provided in sub-article (2) of
article 1407.
Valuation of part.
the buyer does not elect to dissolve the sale, the value to be
refunded to him by the seller in respect of the part affected by the
eviction shall be determined not in proportion to the entire price of
the sale but in accordance with a valuation in which regard will be
had to the time of the eviction, irrespective of any increase or
decrease in the value of the thing sold.
Warranty in regard 
to easements not 
declared.
1419. (1) Where the tenement sold is subject to non-apparent
easements whereof no declaration was made and such easements
are of such importance that it may be presumed that the buyer
would not have bought the tenement if he had been given notice of
them, he may demand either the dissolution of the sale or
compensation.
(2) The provisions of this article shall not apply in the case of a
judicial sale by auction.
Rights of buyer ,  
where tenement is 
sold as free from 
easements or 
burdens.
1420.    Where, however, a tenement has been sold as free and
exempt from any easement or other burden, or where the warranty
has been otherwise expressly promised, in such cases the buyer
may demand either the dissolution of the sale or compensation, if
the seller shall not cause any easement or other burden not declared
in the contract to cease, even though such easement or other burden
be apparent, and it be proved that it was known to the buyer at the
time of the sale, unless it is clearly shown that it was not the
intention of the parties to include such easement or burden in the
promise of warranty.
Where buyer has 
prevented eviction 
by paying a sum of 
money.
1421.   Where the buyer has prevented eviction of the tenement
by paying a sum of money, the seller may free himself of all the
consequences of the warranty by refunding to him the sum paid
together with interest, and all expenses.
Where buyer fails 
to make seller a 
party to the 
proceedings in 
eviction.
1422.   The warranty against eviction ceases if the buyer has
suffered a final and absolute judgment to be given against him
without making the seller a party to the suit, if the latter proves that
he could have set up a good defence, not set up by the buyer,
250               CAP.16. ħ                CIVIL CODE
whereby the action would have been dismissed.
Limitation of 
action for breach of 
warranty.
1423. (1) In all cases where a shorter period is not fixed, the
action for breach of warranty against eviction shall be barred by the
lapse of two years to be reckoned from the day on which the
judgment against the buyer has become final and absolute.
(2) The said period of limitation shall run as provided in sub-
article (2) of article 1407.
O F  W ARRANTY IN RESPECT OF  L ATENT  D EFECTS OF THE  T HING 
SOLD
Warranty in 
respect of latent 
defects.
1424.    The seller is bound to warrant the thing sold against any
latent defects which render it unfit for the use for which it is
intended, or which diminish its value to such an extent that the
buyer would not have bought it or would have tendered a smaller
price, if he had been aware of them.
Seller not liable for 
apparent defects.
1425.   The seller is not answerable for any apparent defects
which the buyer might have discovered for himself.
Seller answerable 
for latent defects.
1426.   Nevertheless, he is answerable for latent defects, even
though they were not known to him, unless he has stipulated that he
shall not in any such case be bound to any warranty.
Actio redhibitoria  
and  actio 
aestimatoria .
1427.    In the cases referred to in articles 1424 and 1426, the
buyer may elect either, by instituting the  actio redhibitoria , to
restore the thing and have the price repaid to him, or, by instituting
the  actio   aestimatoria , to retain the thing and have a part of the
price repaid to him which shall be determined by the court.
Where defect is in 
one of two or more 
things sold 
together.
1428. (1) Where two or more things are sold together, so that
one would not have been sold or bought without the other, and one
of such things has a defect which gives rise to the  actio redhibitoria
or  aestimatoria , the buyer may not institute the  actio redhibitoria
but in respect of all the things sold, although a price was specified
in respect of each.
(2) Where, however, the things sold together are independent
of one another, the said action may not be instituted but in respect
of the defective thing, although all the things had been sold for a
single price; and in such case the seller is bound to repay the price
of such thing according to a valuation to be made on the basis of
the total price agreed upon.
Where defects 
were known or not 
to the seller.
1429. (1) If the defects of the thing sold were known to the
seller, he is not only bound to repay the price received by him but
he is also liable in damages towards the buyer.
(2) If the defects were not known to the seller, he is only bound
to repay the price and to refund to the buyer the expenses incurred
in connection with the sale.
Where defective 
thing perishes.
1430. (1) If the defective thing perishes in consequence of its
defects, the loss is borne by the seller, who shall be bound to repay
     CIVIL CODE            ġ CAP. 16.             251
the price to the buyer and to indemnify him as provided in the last
preceding article.
(2) If the thing perishes by a fortuitous event, the loss is borne
by the buyer.
Limitation of 
action.
Amended by: 
XXVIII.1994.45. 
1431. (1) The  actio redhibitoria  and the  actio aestimatoria
shall, in regard to immovables, be barred by the lapse of one year
as from the day of the contract, and, in regard to movables, by the
lapse of six months as from the day of the delivery of the thing
sold.
(2) Where, however, it was not possible for the buyer to
discover the latent defect of the thing, the said periods of limitation
shall run only from the day on which it was possible for him to
discover such defect.
(3) The said periods of limitation shall run as provided in sub-
article (2) of article 1407.
Actions not 
maintainable in 
case of judicial 
sales.
1432.    The a ctio redhibitoria  and the  actio aestimatoria  cannot
be maintained in case of judicial sales by auction.
Sub-title V
O F THE  O BLIGATIONS OF THE  B UYER
When and where 
price is to be paid.
1433.    If the time and place for the payment of the price are not
stated in the contract, the buyer must pay at the time and place of
the delivery of the thing.
When buyer is 
bound to pay 
interest.
1434.   The buyer, even though there be no agreement to that
effect, is bound to pay interest on the price up to the day of
payment at the rate of five per cent  per annum , indiscriminately in
the following cases:
( a ) if the thing sold and delivered yields fruits or other
profits;
( b ) if, even though the thing yields no fruits or other
profits, he has been called upon by means of a judicial
intimation to pay the price;
( c ) if the delivery of the thing, being movable, has not
taken place through the fault of the buyer, and the
seller has called upon him, by means of a judicial
intimation, to take delivery of the thing:
  Provided that in the cases mentioned in paragraphs   ( b )   and ( c ),
interest shall run only from the day of the service of the said
judicial intimation.
When buyer is not 
bound to pay 
interest.
1435. (1) The buyer is not bound to pay interest during the
time allowed to him in the contract for the payment of the price.
(2) Nevertheless, any time allowed by the seller after the
contract of sale shall not operate as a waiver of the interest on the
252               CAP.16. ħ                CIVIL CODE
price, unless such time be allowed under a will.
Where thing is 
capable of yielding 
fruits.
1436.   If the thing is capable of yielding fruits or other profits,
the buyer shall still be bound to pay interest on the price, even
though owing to a fortuitous event or for any other cause the thing
shall have yielded no fruits or other profits during the time when
the price was still owing.
When purchaser 
may suspend 
payment of price.
1437. (1) If the buyer is disturbed in the possession of the
thing or has reasonable cause to fear that he will be so disturbed, by
any action hypothecary or for the recovery of the thing  rei
vindicatio , he may suspend the payment of the price until the seller
shall have caused the molestation to cease or shall have removed
the cause for which such molestation is feared, unless the seller
elects to give security, or unless it was agreed that the buyer was to
pay notwithstanding any molestation.
(2) Nevertheless, even in the case mentioned in this article, in
the event of any of the circumstances referred to in article 1434, the
buyer, if he suspends payment of the price, shall owe interest
thereon, unless he elects to pay the price into court.
When seller may 
demand dissolution 
of sale on ground 
of non-payment of 
price.
1438. (1) The seller of an immovable cannot demand the
dissolution of the sale on the ground that the price has not been
paid to him.
(2) In the case, however, of goods or other movables, the
dissolution of the sale, even though no express resolutive condition
is attached to the contract, shall take place  ipso jure  in favour of the
seller, if the buyer previously to the expiration of the time fixed for
the delivery of the thing, has not presented himself to take delivery
thereof or if on presenting himself to take delivery of the thing he
has not concurrently tendered the price, unless a term of credit has
been agreed upon for the payment thereof.
Rights of unpaid 
seller over the 
goods.
1439.   If the sale of a movable was made without any stipulation
as to credit, the seller may, in default of payment, take back the
thing sold, if it is still in the actual possession of the buyer, or
restrain the buyer from reselling the thing, provided the demand for
the recovery of the thing be made within fifteen days of the
delivery and the thing be in the same condition in which it was at
the time of the delivery.
Sub-title VI
O F THE  D ISSOLUTION AND  R ESCISSION OF  S ALES
Dissolution of 
contract of sale by 
redemption.
Rescission of 
contract on the 
ground of lesion.
Amended by:
IV.1961.2.
1440.   Independently of the causes of rescission or dissolution
already mentioned in this Title, and of those which apply to all
agreements, a contract of sale may be, in whole or in part, dissolved
by the exercise of the right of redemption and may be rescinded on
the ground of lesion.
     CIVIL CODE            ġ CAP. 16.             253
Amended by: 
IV.1961.3.
O F  R EDEMPTION
Right of 
redemption.  
Substituted by: 
IV.1961.4. 
1441.   The right of redemption is created by agreement.
Action for 
redemption.  
Amended by: 
IV.1961.2 , 5.
1442.    The action for the recovery of an immovable, in
pursuance of a right of redemption, may be instituted not only
against the buyer, but also against any other possessor of the
immovable; and upon the re-sale, the immovable passes to the party
exercising the right of redemption, free from any hypothec,
easement or other burden with which the buyer or other possessor
may have charged it; saving, in regard to any contract of lease, the
provisions contained in articles 1530 and 1531.
Duties of party 
exercising right of 
redemption.  
Amended by: 
IV.1961.2.
1443.    The party exercising the right of redemption is bound to
return to the party against whom such right is exercised the price of
the sale giving rise to the exercise of such right, and any other
lawful expense incurred by the buyer in connection with such sale,
as well as all necessary and useful expenses made on the thing
either by the buyer or by any other possessor, even though for any
cause whatsoever for which neither the party against whom the said
right is exercised nor any other former possessor is responsible, the
effect of such expenses no longer exists.
Right to interest of 
party against 
whom redemption 
is exercised.  
Amended by: 
IV.1961.2.
1444.   The party against whom the said right is exercised is
entitled to interest from the day of the respective disbursements
which according to the last preceding article are to be refunded to
him, subject, however, to the deduction of the value of the fruits
which, as from the day of the sale giving rise to the exercise of the
right of redemption he or any other former possessor has collected
or by the use of the diligence of a  bonus paterfamilias  could have
collected:
  Provided that he may retain the fruits aforesaid and waive his
right to interest.
When right to 
interest ceases.  
Amended by: 
IV.1961.2.
1445.   The right to interest of the party against whom
redemption is exercised shall cease as from the day on which he is
notified of the deposit of the sums which are to be refunded to him,
provided the payment out of such deposit be not, without just
cause, restrained by the party exercising the right of redemption, in
which case, the right to interest will not cease except from the day
on which the restraint ceases.
Restoration of 
fruits. 
Amended by: 
IV.1961.2.
1446.   From the same day on which his right to interest ceases,
the party against whom the right of redemption is exercised is
bound to restore to the party exercising such right all fruits which
up to the day of the release of the thing he has collected or, by the
use of the diligence of a  bonus paterfamilias , could have collected.
Fructus 
pendentes.  
Amended by: 
IV.1961.2.
1447.   Fruits which are pending on the day of the release of the
thing shall belong to the party exercising the right of redemption,
subject, however, to his obligation to reimburse the expense
incurred for their production and preservation.
254               CAP.16. ħ                CIVIL CODE
How right of 
redemption is 
exercised.  
Amended by; 
IV.1961.2.
1448. (1) The right of redemption is exercised by presenting a
schedule of redemption, in the registry of the competent court,
regard being had to the place of residence of the possessor of the
thing.
(2) The party exercising the right of redemption, however, shall
be deemed to have validly exercised such right by presenting the
schedule in the registry of the competent court according to the
place of residence of the buyer, unless he shall have previously
been, by means of a judicial intimation, informed of the transfer of
the thing from the buyer to another person; and in such case all
subsequent acts relating to the right of redemption so exercised
shall be presented in the same court.
Deposit to be made 
by party exercising 
the right of 
redemption.  
Amended by: 
IV.1961.2 , 6.
1449.     The party exercising the right of redemption shall,
together with the said schedule, or within ten days from the
presentation thereof, deposit a sum which will include -  
( a ) the price of the sale giving rise to the exercise of such
right;
( b ) the fees of the notary before whom the deed of such
sale was received;
( c ) the fees paid for the registration of the said deed in the
Public Registry where such registration has taken
place;
( d ) any other lawful expense which from the deed of that
sale appears, or which the party aforesaid otherwise
knows to have been incurred by or charged to the
buyer.
Time for deposit.  
Amended by: 
IV.1961.2.
1450. (1) Where a right of redemption has been exercised, it
may not be impeached on the ground that the deposit was made
after the time fixed for the exercise of such right, provided the
deposit is made within the ten days mentioned in the last preceding
article.
(2) Where, however, the deposit is not made within the ten
days as aforesaid the schedule of redemption shall cease to be
effectual, even though the deposit shall have been made before the
lapse of the time fixed for the exercise of the said right, saving the
power of the party presenting the schedule to exercise again the
right of redemption by presenting a fresh schedule within such
time, and saving also any other provisions contained in articles
1451 to 1468.
Default of deposit 
in whole or in part. 
Amended by: 
IV.1961.2.
1451. (1) Nor may the exercise of the right of redemption be
impeached for default of the deposit in whole or in part, if the party
exercising such right, instead of the deposit or of the deficiency in
the amount of the deposit, has offered to set off an equal sum,
liquidated and exigible, owing to him by the party against whom
the said right is exercised, or if, where the default of the deposit is
only in part, it clearly appears from the circumstances that the
deficiency was due to inadvertence or error.
(2) The fact, however, that the deficiency was due to
     CIVIL CODE            ġ CAP. 16.             255
inadvertence or error, shall not benefit the party exercising the said
right, unless he shall supplement the deposit within ten days from
the day on which the party against whom the said right is exercised
shall have, by means of a judicial act, called upon him to do so.
Party exercising 
right of redemption 
may recede 
therefrom.  
Amended by: 
IV.1961.2.
1452.    The party exercising the right of redemption may recede
therefrom until the party against whom such right is exercised shall
have signified, by means of a judicial act, his acceptance thereof.
Re-sale to party 
exercising right of 
redemption.  
Amended by: 
IV.1961.2.
1453. (1) The party against whom the said right is exercised is
not bound to make the re-sale of the thing in favour of the party
exercising such right until the latter shall have fulfilled all his
obligations in accordance with the provisions of articles 1443,   1444
and 1445.
(2) The expenses of the re-sale shall be at the charge of the
party exercising the said right.
Rights of parties.  
Amended by:
IV.1961.2.
1454. (1) The party against whom the right of redemption is
exercised may at any time after the presentation of the schedule of
redemption, demand the liquidation of the expenses, necessary or
useful, to which he is entitled, and compel the party exercising such
right to pay the said expenses on the day which, on the demand of
the former, the court shall have fixed for the re-sale.
(2) The party exercising the right of redemption may also at
any time after the presentation of the schedule, demand that the
expenses aforesaid be liquidated and that the defendant be
condemned to make the re-sale at such time and in such manner as
the court shall direct.
Where thing is 
damaged in 
consequence of a 
fortuitous event.  
Amended by: 
IV.1961.2.
1455.    Where the thing is damaged in consequence of a
fortuitous event, the party exercising the right of redemption shall
not be entitled to any abatement of the sums due by him under the
provisions of the foregoing articles.
Where thing is 
damaged by the 
defendant or any 
former possessor.  
Amended by: 
IV.1961.2 , 7.
1456.    Where the thing has been damaged by the party against
whom the right of redemption is exercised or by any other former
possessor, the party exercising such right shall only be entitled to
claim damages up to the amount of the profit which the tort-feasor
may have derived therefrom, unless it is shown that the latter
caused the damage for the purpose of avoiding the redemption, or
of prejudicing the party exercising such right, saving the provisions
of article 1461.
Times are 
peremptory.  
Amended by: 
IV.1961.8.
1457.    Any time established by law in regard to the right of
redemption, is peremptory.
Right of 
redemption.
1458. (1) It shall be lawful for the seller in the contract of sale,
to reserve to himself the right of redemption, or the power of taking
back the thing sold, by returning the price, and paying the expenses
and interest as provided in articles 1443, 1444 and 1445.
(2) Any agreement whereby the seller is to return a higher sum
is null in regard to the excess.
256               CAP.16. ħ                CIVIL CODE
Right of 
redemption may 
not be reserved for 
a period exceeding 
five years.
1459. (1) The right of redemption cannot be reserved for a
period exceeding five years to be reckoned from the day of the sale.
(2) Where the right of redemption has been reserved without
any limitation of time, or for a period exceeding five years, the
agreement is null in regard to any time exceeding five years.
(3) The period fixed by the contract or reduced as aforesaid, is
peremptory; and it runs also against minors and persons interdicted
or absent.
Right of 
redemption 
exercisable against 
third party in 
possession.
1460. (1) The seller of an immovable who has reserved to
himself the right of redemption may exercise such right against a
third party in possession even though no mention of such right shall
have been made in the contract whereby such third party shall have
acquired the immovable.
(2) In regard to movables, the right of redemption cannot be
exercised if the movables have passed into the hands of a third
party.
Rights of buyer 
under covenant of 
redemption.
1461. (1) The buyer under a covenant of redemption may
exercise all the rights of his seller; he may prescribe against the
true owner as well as against persons claiming to have rights or
hypothecs on the thing sold; and may also set up the benefit of
discussion against the creditors of his seller.
(2) He may not, however, alter the form of the thing sold.
Where buyer of an 
undivided portion 
of a tenement 
acquires the whole 
tenement.
1462.    If the buyer of an undivided portion of a tenement under a
covenant of redemption becomes the owner of the whole tenement
as a result of proceedings of licitation instituted against him, he
may compel the seller desiring to enforce such covenant to redeem
the whole tenement.
Where sellers are 
two or more ,  
redemption how 
exercisable.
1463.    If several persons have jointly and by a single contract
sold a tenement held in community, each may exercise the right of
redemption in respect only of the portion which he owned.
Right of heirs of 
seller.
1464.    Where the person who alone has sold a tenement has left
several heirs, each of them may exercise the right of redemption in
respect of that portion only which he takes as heir.
Rights of buyer 
against co-sellers 
or co-heirs.
1465. (1) The buyer, however, in the cases mentioned in the
last two preceding articles, may, by means of a judicial act, call
upon all the other sellers of the common property, or all the other
co-heirs, to declare whether they too desire to exercise the right of
redemption in regard to their respective portions.
(2) The co-sellers or co-heirs so called upon shall make the
aforesaid declaration within the time remaining for the exercise of
the right of redemption, provided that if such time is less than ten
days, or has entirely elapsed, such declaration shall be made within
ten days to be reckoned from the service of the said judicial act.
     CIVIL CODE            ġ CAP. 16.             257
In default of 
declaration by co-
sellers or co-heirs 
buyer becomes 
irrevocably owner 
of whole tenement.
1466.    If within the aforesaid time any of the co-sellers or co-
heirs fails to declare that he desires to exercise the right of
redemption in respect of his portion, the buyer shall become
irrevocably the owner of the whole tenement, unless such of the co-
sellers or co-heirs as may have exercised the right of redemption in
respect of their portion shall, upon being called upon by the buyer
by means of a judicial act, and within ten days from the service
thereof, redeem the whole tenement in accordance with the
provisions of article 1448.
When each seller 
may exercise the 
right of redemption 
separately.
1467.    If the sale of a tenement belonging to several persons has
not been made jointly and in respect of the whole tenement, but
each of such persons has separately sold his portion, each seller
may exercise the right of redemption separately in respect of the
portion which belonged to him, and it shall not be competent to the
buyer to compel the person who so exercises his right of
redemption to redeem the whole tenement.
Right of 
redemption against 
heirs of buyer.
1468. (1) If the buyer has left several heirs, the right of
redemption may only be exercised against each of them in respect
of his share, irrespective of whether the tenement sold is still
undivided, or whether a partition thereof has already been made
among the heirs.
(2) Nevertheless, if the estate has been divided, and the thing
sold has been entirely allotted to the share of one of the heirs, the
right of redemption can be exercised against such heir in respect of
the whole tenement.
Sub-title VII
O F THE  A SSIGNMENT OF  D EBTS AND OTHER  R IGHTS
Assignment of 
debts ,  etc. 
1469.    The assignment or sale of a debt, or of a right or of a
cause of action is complete, and the ownership is  ipso jure  acquired
by the assignee as soon as the debt, the right or the cause of action,
and the price have been agreed upon, and, except in the case of a
right transferable by the delivery of the respective document of
title, the deed of assignment is made.
Assignment to be 
made in writing.
1470. (1) The assignment is not valid unless made in writing.
 (2) The assignment of hereditary rights, or of debts, rights or
causes of action arising from public deeds is void unless made by a
public deed.
Notice to debtor.
the rights assigned to him except after due notice of the assignment
has been given to the debtor, by means of a judicial act, by the
assignee himself or by the assignor.
Where no notice 
has been given.
1472.    In default of such notice, or until such notice is given -
 ( a ) the debtor may not set up the assignment against his
creditor, and if he pays the debt to him he is thereby
258               CAP.16. ħ                CIVIL CODE
discharged;
( b ) if the creditor, after having assigned the debt to one
person, makes a second assignment thereof to another
person who is in good faith, such other person, if he
has given notice of the assignment made in his favour,
shall be preferred to the former assignee;
( c ) if the creditors of the assignor shall sue out a garnishee
order attaching the sum due in the hands of the debtor,
they shall be preferred to the assignee, even though
they have become creditors only after the assignment;
( d ) the debtor is entitled to set off any sum which may
become due to him by the assignor; but the assignee
may not set off the debt assigned to him against any
sum owing by him to the debtor.
Acknowledge-
ment  of 
assignment by 
debtor.
1473.    The notice is not necessary if the debtor has acknowled-
ged the assignment.
Assignment of bills 
of exchange ,  etc.
1474.    Neither the notice, nor the acknowledgment referred to in
the last preceding article shall be necessary in regard to bills of
exchange or other documents of title transferable by endorsement
or delivery.
Rights included in 
the assignment.
1475.    The assignment of a debt includes every security,
privilege or hypothec attached to the debt and every other thing
accessory to it; but it shall not include the fruits accrued due or any
rescissory action, unless express mention thereof has been made in
the assignment.
Warranty. 1476. (1) The assignor of a debt or any other right is bound to
warrant its existence at the time of the assignment, although no
express stipulation of warranty has been made in the assignment.
(2) If the debt does not exist, the assignor is bound to return the
price received, unless the warranty as to the existence of the debt
has been negatived either by a declaration of the assignor that he
was making the assignment without any warranty, or by other
words to that effect.
Solvency of debtor 
not included in 
warranty unless 
stipulated.
1477. (1) The assignor is not answerable for the solvency,
whether present or future, of the debtor, unless he has expressly
bound himself thereto, either by declaring the debt good and
collectable or by other words to that effect.
(2) If the assignor has promised such warranty, he shall be
bound only to the extent of the price of the assignment.
Duration of 
warranty of 
debtors’ solvency.
1478. (1) Where the assignor has warranted the solvency of
the debtor without any limitation as to the duration of such
warranty, such warranty shall be limited to one year as from the
day of the assignment if the debt has already fallen due, or from the
day on which the debt falls due if at the time of the assignment it
has not yet fallen due.
(2) Where the subject-matter of the assignment is a right to an
     CIVIL CODE            ġ CAP. 16.             259
annuity, the warranty shall not extend beyond ten years from the
day of the assignment.
Cessation of 
warranty.
1479.    The obligation as to warranty ceases, if the debt becomes
irrecoverable through the negligence of the assignee.
Assignee to 
proceed against 
debtor before 
proceeding against 
assignor.
1480. (1) The assignee is bound to proceed against the debtor
before he can proceed against the assignor, unless it is agreed that
the assignor shall pay for the debtor should the latter fail to pay on
mere demand.
(2) If there is such an agreement the assignee is not bound to do
any act to safeguard the debt; and the assignor is liable to the extent
of the debt assigned.
Warranty in case of 
sale of  inheritance.
1481. (1) A person who sells an inheritance without distinctly
specifying the things of which it consists, is only bound to warrant
his capacity as heir.
(2) If the inheritance does not exist because the succession is
not yet open, or if it exists but the seller has no right to it, he is
bound to restore to the buyer the price and shall be liable towards
him in damages.
(3) A person who has only sold his claim to a succession so
that the buyer may bring forward such claim at his own risk, is not
bound to any warranty nor to return the price.
Where seller is 
debtor to or 
creditor of 
inheritance.
1482.    If the seller is himself a debtor towards the inheritance or
has received any property of the inheritance, he is bound to pay his
debt to, or, as the case may be, indemnify the buyer: on the other
hand, the buyer is bound to restore to the seller any sum which the
latter may have paid in satisfaction of any debt or burden of the
inheritance and to pay to the seller any claim which the latter may
have against the inheritance, unless, in either case, it be otherwise
stipulated.
Assignment of a 
litigious right. 
1483. (1) Where a litigious right has been assigned, the debtor
in the obligation may obtain his release from the assignee by
reimbursing to him the actual price of the assignment together with
the expenses and interest to be reckoned from the day of the
payment of the said price by the assignee.
(2) A   right is deemed to be litigious, if there is a contested suit
as to the existence thereof or if the debt due is not liquidated and is
difficult to liquidate.
Inapplicability of 
s.1483.
1484.    The provisions of the last preceding article shall not
apply-
( a ) if the assignment has been made by a co-heir or a co-
owner, to another co-heir or co-owner of the right so
assigned;
( b ) if the assignment has been made to a creditor in
satisfaction of his claim;
( c ) if the assignment has been made to the possessor of the
tenement subject to the litigious right;
260               CAP.16. ħ                CIVIL CODE
( d ) if the assignment has been made under a purely
gratuitous title.
Title  VII
O F  E XCHANGE
Definition of 
contract of 
exchange.
1485. (1) Exchange is a contract whereby the parties mutually
bind themselves to give to one another a thing, not being money.
(2) Exchange takes place by bare consent, in the same manner
as sale.
Supplement in 
money.
1486. (1) The contract shall not cease to be a contract of
exchange, even though the value of the things which the parties
bind themselves to give to one another has been stated or one of the
parties has bound himself to give together with the thing, a
supplement in money.
(2) Nevertheless, if the sum of money which one of the parties
binds himself to pay exceeds the value of the thing which such
party binds himself to give, the contract shall be deemed to be a
contract of purchase and sale in regard to all the things which the
parties have bound themselves to give to one another.
Rights of party to 
whom a 
supplement in 
money is due.
1487.    The party to whom a supplement in money is due, may
exercise over the thing which he has given all rights and privileges
competent to a seller in respect of the price, even though the
contract is, under the provisions of the last preceding article, a
contract of exchange.
Exchange of 
movable for 
immovable.
1488.     A movable may be exchanged for an immovable.
When exchange is 
to be made by 
public deed.
1489.    In any case, however, where an immovable is given in
exchange for a movable or an immovable, the contract is void if not
made by a public deed.
When party to 
exchange may 
refuse to deliver 
thing.
1490.    A party to an exchange who, after having received the
thing given to him in exchange, proves that he who has given the
thing to him is not the owner thereof, cannot be compelled to
deliver the thing which he has promised to give, but only to return
the thing which he has received.
Rights of party to 
exchange in case of 
eviction.
1491. (1) A   party to an exchange who has suffered the eviction
of the thing which he has received in exchange, may at his option,
either demand damages, or recover the thing given by him.
(2) Where such party elects to recover the thing, he may, if the
thing is an immovable, maintain an action for the recovery of the
thing even against a third party in possession thereof; and he shall
take it back free from any burden or hypothec with which the other
party to the exchange or the third party in possession may have
charged it:
     CIVIL CODE            ġ CAP. 16.             261
   Provided that in regard to any lease made in good faith and on
fair conditions, the provisions of article 1530 shall apply.
Expenses of 
contract of 
exchange.
1492. (1) All expenses of, or incidental to the contract of
exchange shall be borne by the two contracting parties, in equal
shares.
Cap. 12.
(2) Nevertheless, the expense necessary for freeing an
immovable from the fetters of any entail or from any hypothec,
easement or other burden in accordance with the provisions
contained in Title II of Part II of Book Second of the Code of
Organization and Civil Procedure, shall be borne by the party to the
exchange who receives such immovable.
Rules of sale to 
apply to exchange.
1493.    Any other rule relating to the contract of sale shall also
apply to a contract of exchange.
Title  VIII
O F  E MPHYTEUSIS
Definition of 
contract of 
emphyteusis.  
Amended by: 
IV.1961.9.
1494. (1) Emphyteusis is a contract whereby one of the
contracting parties grants to the other, in perpetuity or for a time, a
tenement for a stated yearly rent or ground-rent which the latter
binds himself to pay to the former, either in money or in kind, as an
acknowledgment of the tenure.
(2) The provisions of this Title shall apply to any emphyteusis
whatsoever, even where the amount of the ground-rent shall have
been fixed with reference to the value of the fruits of the tenement.
By whom 
emphyteutical 
grants may be 
made.
1495.    Emphyteutical grants may not be made by persons who
are under a disability to alienate property, unless expressly
authorized to that effect by the competent authority, according to
law.
Emphyteutical 
grant of tenements 
subject to entail. 
Cap. 12.
1496.    Notwithstanding any prohibition in the deed creating the
entail, possessors of tenements subject to entail may, in accordance
with the provisions contained in Sub-title V of Title VIII of Part I
of Book Second and in Title I of Part II of Book Second of the
Code of Organization and Civil Procedure, obtain from the
competent court authority to grant such tenements on emphyteusis,
in perpetuity or for a time, provided the court is satisfied that such
grant is to the advantage of the persons entitled to succeed.
When grant is null.
( a ) if not made by a public deed; or
( b ) if the grant is otherwise than in perpetuity or for a
stated time to be reckoned from any certain day; or 
( c ) if the amount of the ground-rent is not expressly stated
in the contract.
When certain 
grants are to be 
deemed 
emphyteutical.
1498. (1) Where a tenement is granted for a time exceeding
sixteen years or in such manner that the grant may by the grantee be
made to last for more than sixteen years, and, in either case, under
conditions which are in accordance with the provisions of the
262               CAP.16. ħ                CIVIL CODE
following article of this Title rather than with those relating to
contracts of letting and hiring, the grant shall be deemed to be an
emphyteutical grant, although the parties shall have termed it a
contract of letting and hiring; and any such grant is null if made
otherwise than by a public deed.
(2) On the contrary, where a tenement is granted under a title of
emphyteusis, the grant shall be deemed to be an emphyteutical
grant, notwithstanding the shortness of the period for which it is
made and the nature of the stipulations attached thereto.
Parties may make 
stipulations not 
contrary to law.  
Substituted by: 
XXVII.1976.3. 
Amended by: 
XXX.1981.10.
1499. (1) The rules contained in the foregoing articles and in
articles 1501,1502, 1512, 1513 and 1519, shall be observed in all
cases and any agreement contrary thereto shall be without effect.
(2) Save as provided in sub-article (1), it shall be lawful for the
contracting parties to make in a contract of emphyteusis any
stipulation which they may deem proper, provided there be nothing
contrary to law.
(3) Without prejudice to the provisions of sub-article (1), in the
absence of any special agreement, the rules contained in the
following articles shall be observed.
Ground-rent 
unalterable.
1500. (1) The ground-rent during the continuance of the
emphyteutical grant is unalterable.
(2) The emphyteuta cannot claim any reduction of the ground-
rent by reason of any change of circumstances.
(3) Nor can he claim any remission or abatement of the ground-
rent for one or more years if as a result of a fortuitous event,
whether ordinary or extraordinary, foreseen or unforeseen, the
whole or part of the produce is lost.
Emphyteuta may 
redeem the ground-
rent.  
Added by: 
XXX.1981.11. 
Amended by: 
XX.1984.2;
XXIV.1995.362.
1501. (1) Where a grant in emphyteusis is made in perpetuity,
the emphyteuta, even though the ground-rent may be revised at
stated intervals of time, shall have the option to redeem the ground-
rent as provided in the following sub-articles of this article, unless
the contract itself, being a contract entered into before the 15th
August, 1981, provides for a different manner in which the
redemption may be effected.
(2) Such redemption of the ground-rent shall be made by the
payment of a sum equivalent to the amount of the ground-rent
capitalised at the rate of five per cent:
  Provided that where the contract provides that the ground-rent
may be revised at a specified time or on the happening of a
specified condition, the redemption may be opted for by the
emphyteuta within the first year of the date of any such revision, or
the happening of such condition, and the sum payable for the
redemption of the ground-rent shall, in such case, be equivalent to
the amount of ground-rent so revised capitalised at the average rate
of interests payable by a commercial bank on deposits of a fixed
nature at the time of the redemption.
(3) Where there are more than one  dominus , the emphyteuta
     CIVIL CODE            ġ CAP. 16.             263
may redeem from one or more of them separately.
(4) Where the tenement is held in sub-emphyteusis in
perpetuity, the sub-emphyteuta shall be entitled to redeem the
original ground-rent and the increase in ground-rent by the
payment of the sum due for the redemption established in
accordance with the provisions of this article.
(5) Any clause in any agreement whereby the emphyteuta is
deprived of the right of redeeming the ground-rent conferred by
this article, shall be considered as if it has not been included in
such agreement.
(6) The redemption of the ground-rent may be effected by an
agreement between the  dominus  and the emphyteuta made in a
public deed or by means of the schedule referred to in sub-article
(7) of this article.
(7) Where the redemption is not made by public deed, the
emphyteuta may effect such redemption by filing at his expense in
the Registry of the First Hall of the Civil Court, a schedule of
redemption and at the same time depositing in the said registry the
sum due for the redemption established in accordance with the
provisions of sub-article (2) of this article; and with respect to such
schedule, the following provisions of this sub-article shall,
notwithstanding anything to the contrary in any other law
contained, have effect:
( a ) where the person first granting the emphyteusis or the
person to whom the rights of the dominus are assigned
is dead, the schedule of redemption may be served on,
and the deposit may be made in favour of, one or more
heirs of the dominus or his assignee, and such heir or
heirs shall, for all purposes of law, be deemed to
represent all those persons having a legal interest in
the schedule of redemption and in the money so
deposited;
( b ) the omission from the schedule of the name of any
person having an interest in any part of the moneys
deposited in accordance with the provisions of this
article, shall not affect the right of any person so
omitted to any share in the amount deposited;
( c ) the schedule shall contain:
(i) the name and surname of the person of the
emphyteuta, his place of birth, his place of
residence, his profession, trade or other status,
his father’s name and his mother’s name and
maiden surname, or in the case of a body of
persons the corporate name of such body of
persons and the particulars relative to its
incorporation;
(ii)   the name and surname of the person named in the
schedule, his place of birth, his place of
residence, his profession, trade or other status,
his father’s name and his mother’s name and
264               CAP.16. ħ                CIVIL CODE
maiden surname, or other particulars sufficient
to identify such person, or in the case of a body
of persons the corporate name of such body of
persons and the particulars relative to its
incorporation; and
Cap. 56.
(iii) the designation in accordance with article 7 of
the Public Registry Act of the immovable in
relation to which the ground-rent redeemed was
payable;
( d ) the emphyteuta shall attach to the schedule a plan
showing the extent and location of the immovable
subject to the ground-rent redeemed;
( e ) service of the schedule shall be effected only on the
person named in such schedule and if within three
months from the day on which the schedule is filed,
service is not effected on the person aforesaid, either
by reason of absence or for any other reason, the
emphyteuta shall at his expense request the Registrar
of Courts to have the contents of the schedule
published in the Gazette, and upon such publication
the person on whom the schedule was due to be served
shall, for all purposes of law, be deemed to be served
with the schedule;
( f ) the emphyteuta shall cause two copies of the schedule
to be served on the Director of Public Registry, who
shall keep a register of such schedules, and article 30
of the Public Registry Act shall, mutatis mutandis,
apply to such schedules.
(8) The deposits mentioned may be withdrawn by the persons
entitled thereto on proof of their title being made to the Registrar of
Courts.
Divisibility of 
ground-rent. 
Substituted by: 
XXVII.1976.4.
1502. (1) The ground-rent cannot be divided without the
consent of the  dominus ;   but where the tenement is transferred or
otherwise belongs to two or more persons separately, the  dominus
may not refuse his consent for the division of the ground-rent if
such division is made substantially in proportion to the separate
parts held by the persons requiring the consent.
(2) The consent given by the  dominus  for the transfer of one or
more separate parts of the tenement to different persons, or the
receipt by him of one or more portions of the ground-rent, from one
or more of such persons, shall have the same effect as an express
consent given by the  dominus  for the division of the groundrent.
Reimbursement of 
ground-rent to co-
possessor.
1503. (1) A co-possessor who has paid the entire ground-rent,
obtains reimbursement from the other co-possessors  pro rata
having regard to the portion of the tenement held by each,
notwithstanding any assignment of rights.
(2) He contributes, in the same proportion, with the other co-
possessors in respect of the shares of such of the co-possessors as
are insolvent.
     CIVIL CODE            ġ CAP. 16.             265
Rights of 
emphyteuta over 
tenement.
1504. (1) The emphyteuta may alter the surface of the
tenement, provided he does not thereby cause any deterioration
thereof.
(2) He is entitled to any profit which the tenement may yield
and has the right to recover the tenement from any holder, even if
such holder is the  dominus .
(3) He is also entitled to the treasure trove found in the
tenement, saving such portion thereof as according to law is due to
the person who has found it.
Restoration of 
tenement in good 
state.
1505.    The emphyteuta shall keep, and in due time restore the
tenement in a good state.
Improvements.
to him during the continuance of the emphyteusis.
(2) He may alter the form of such improvements; but he may
not destroy them without the express consent of the  dominus. 
Obligations of 
emphyteuta.
1507.    The emphyteuta is bound to carry out any obligation
imposed by law on the owners of buildings or lands:
 Provided that if for the carrying out of any such obligation a
considerable expense is required, and the emphyteusis is for a time,
the court may, upon the demand of the emphyteuta, compel the
dominus  to contribute a portion of such expense, regard being had
to the covenants of the emphyteusis, to the remaining period of the
grant, to the sum of the ground-rent and to other circumstances of
the case.
Emphyteuta may 
dispose of 
tenement.
1508. (1) The emphyteuta may, without giving notice to the
dominus  or   requiring his consent, dispose of the emphyteutical
tenement and of the improvements, either by an act  inter vivos  or
by any testamentary disposition.
(2) Any alienation, however, made otherwise than by a public
deed, is null.
Emphyteuta not 
freed from his 
obligations unless 
alienee is 
acknowledged by  
dominus.
1509. (1) Where the emphyteuta makes any such disposal
without the consent of the  dominus ,   he shall not be released from
his obligations towards the  dominus  himself unless the latter
acknowledges the alienee.
Obligations of 
alienee even if not 
acknowledged.  
Amended by: 
VII.1944.2; 
LVIII.1975.9.
(2) The alienee, however, although not acknowledged by the
dominus ,   is   personally bound towards him for the payment of the
whole amount of ground-rents which fall due during his tenure, and
for the repair of all damages which take place during such tenure;
but he is not liable for the ground-rent which fell due, or for the
damages which took place previously to such tenure; saving
always, even in respect of such ground-rent and damages, the rights
of the  dominus  on   the emphyteutical tenement, on the fruits and on
the value of all things which serve for the furnishing or stocking or
for the cultivation of the tenement, to whomsoever such things may
appertain:
  Provided that such rights shall not be available to the proprietor
266               CAP.16. ħ                CIVIL CODE
in respect of the said things if the same belong to or are held by or
on behalf of any department of the Government of Malta in any
case in which such department is not itself liable for the payment of
the debt.
When  dominus  is 
bound to 
acknowledge 
alienee.  
Amended by: 
IV.1961.10.
1510.    The  dominus  may not refuse to acknowledge, in lieu of
the emphyteuta, the alienee under any title, of the emphyteusis, if
the alienee is a competent person to carry out the obligations
arising from the emphyteutical grant.
When alienee is 
bound to 
acknowledge 
dominus .
1511.    An alienee, under any title, of an emphyteusis, in
possession of the tenement, whom the  dominus  has acknowledged
or has offered to acknowledge, may not refuse to acknowledge
expressly the  dominus  or   to bind himself personally towards him
for the carrying out of the obligations arising from the
emphyteutical grant.
Acknowledge-
ment.
Substituted by: 
XXVII.1976.5.
1512. (1) Any of the acknowledgements mentioned in the last
two preceding articles may be either express or implied; and the
payment or receipt of ground-rent or of a fine by or from the
alienee shall operate as an implied acknowledgement, unless an
express reservation is made by a judicial act.
(2) Both the  dominus  and the alienee may require the
acknowledgement to be made by a public deed or a private
instrument; and in any such case the expenses shall be borne by the
party requiring the written form.
No right to fine 
unless agreed 
upon ,  etc. 
Substituted by: 
XXVII.1976.6.
1513.    The  dominus  shall not be entitled to exact any sum by way
of fine, by whatever name called, upon any sale or other alienation
made after the 1st July, 1976, of the  dominium utile  or   of the
improvements unless -  
( a ) the emphyteutical grant contains an express agreement
providing for such payment, and
( b ) the emphyteutical grant is one which is made for a
period exceeding twenty years;
and where any sum due in accordance with the foregoing
provisions of this article exceeds the amount of the ground-rent for
one year due to that  dominus  in respect of the tenement or part of
the tenement sold or alienated, such  dominus  shall not be entitled to
any such excess.
Promise in relation 
to emphyteusis. 
Added by: 
XXVII.1976.7.
1514.    The provisions of articles 1357, 1359 and 1360 shall
apply to a promise made in respect of emphyteusis after the lst of
July, 1976, as they apply to a promise to sell or to buy.
Where tenement 
perishes wholly or 
in part.
1515. (1) An emphyteusis is dissolved  ipso jure  if the
tenement perishes in whole by a fortuitous event.
(2) If the tenement perishes in part, and the remaining part is
not capable of yielding a rent equivalent to the ground-rent, the
emphyteuta may not claim a reduction of the ground-rent, but he
may demand the dissolution of the emphyteusis, restoring to the
dominus  the tenement with the improvements even if the remaining
part of the tenement consists chiefly of such improvements.
     CIVIL CODE            ġ CAP. 16.             267
Burden  of proof.
tenement has perished, wholly or in part, by a fortuitous event, and
without any fault on his part or on the part of his family, or of his
servants, guests or tenants or of the sub-emphyteutae not
acknowledged by the  dominus .
Dissolution of 
emphyteusis in 
case of arrears.  
Substituted by: 
XXVII.1976.8.
1517.    It shall be lawful for the  dominus  to demand the
dissolution of the emphyteusis and the reversion in his favour of
the tenement together with the improvements if the emphyteuta
owes by way of ground-rent a sum equal in amount to three yearly
payments.
Where tenement 
has deteriorated.
1518. (1) It shall also be lawful for the  dominus  to demand the
dissolution of the emphyteusis and the reversion in his favour of
the tenement together with the improvements, in addition to the
repair of any damage, if the tenement has considerably
deteriorated, and the emphyteuta fails to show that such
deterioration has taken place without any fault on his part or on the
part of the persons mentioned in article 1516.
(2) The same shall apply where the deterioration has taken
place in the improvements executed on the tenement.
Time for payment 
of arrears ,  etc. 
Amended by: 
XXVII.1976.9.
1519. (1) In the cases mentioned in the last two preceding
articles, it shall be competent to the  dominus  to demand the
dissolution of the emphyteusis and the payment of the arrears of the
ground-rent, concurrently.
(2) Nevertheless, the court may, in each of the cases aforesaid,
grant to the defendant a reasonable time, according to
circumstances, for the payment of the arrears or for the execution
of the repairs, and such time may, for a just cause, be extended
once to a further reasonable time.
(3) The provisions of the foregoing sub-articles shall apply also
in any case in which the dissolution of the contract has been
expressly agreed upon for any reason, and shall so apply even if the
agreement excludes the grant of any time.
(4) Nothing in this article shall be construed as requiring the
payment of any ground-rent or other sum that is not due, whether
because the demand therefor is barred by prescription or for any
other reason.
Time for payment 
of arrears ,  etc. ,   
may be demanded 
by creditor of 
emphyteuta.
1520. (1) Any creditor of the emphyteuta, or any other person
interested may intervene in the suit and make the demand for the
time aforesaid; and he may also within such time, even though
granted with his intervention on the demand of the emphyteuta,
prevent the dissolution of the emphyteusis by paying the arrears or
by executing the repairs required.
(2) In such case, the creditor or other person interested shall,
for the reimbursement of the arrears paid or of the expense incurred
in the execution of the repairs, be vested with the rights of the
dominus  as   against any other creditor of the emphyteuta, excepting,
however, the  dominus  himself.
268               CAP.16. ħ                CIVIL CODE
Cessation of 
temporary 
emphyteusis.
1521. (1) A   temporary emphyteusis ceases on the expiration of
the time expressly agreed upon, and the reversion, in favour of the
dominus ,   of the tenement together with the improvements takes
place,  ipso jure .
(2) Any action for the renewal of the emphyteusis for any cause
whatsoever, except by virtue of an express covenant in the
emphyteutical grant or in any other public deed, is abolished, in
regard to any kind of property whatsoever.
Effects of 
reversion.
1522.    In all cases of reversion, any hypothec, burden or
easement, even though such easement may have been created
without the act of the emphyteuta, shall be dissolved both in regard
to the tenement and to the improvements; and the tenement together
with the improvements shall revert unencumbered to the  dominus ,
saving, in regard to any lease thereof, the provisions of articles
1530 and 1531.
When emphyteuta 
may claim 
compensation for 
improvement.
1523. (1) Upon reversion, the emphyteuta shall not be entitled
to any compensation in respect of the improvements, whatever their
nature or value, unless reversion takes place for any of the causes
mentioned in articles 1517 and 1518.
(2) In the cases mentioned in the said two articles, the  dominus
is   bound to pay to the emphyteuta the price of the improvements,
regard being had to their value at the time of the reversion, up to
the amount by which the value of the tenement is found to have
increased in consequence of such improvements at the time of the
reversion, as well as to the remaining period of the emphyteusis.
Contracts of 
emphyteusis made 
before 1st July, 
1976. 
Substituted by: 
XXVII.1976.11.
1524.    The provisions of this Title shall apply to all contracts of
emphyteusis whether made before or after the lst July, 1976, other
than those emphyteuses which had terminated before the said date
or which, before that date, were determined or dissolved by
agreement, or by a judgment which had become  res   judicata ,   or by
operation of law; in respect of such latter emphyteuses the law
applicable at the time of their termination, determination or
dissolution shall, in so far as necessary, continue to apply.
Title  IX
O F  C ONTRACTS OF  L ETTING AND  H IRING
G ENERAL  P ROVISION
Contract of letting 
and hiring may be 
made verbally or in 
writing.
1525.    A contract of letting and hiring, whether of things or of
work and labour, may be made either verbally or in writing.
     CIVIL CODE            ġ CAP. 16.             269
Sub-title I
OF THE LETTING OF THINGS
Definition of 
contract of letting 
and hiring of 
things.
1526. (1) The letting of things is a contract whereby one of the
contracting parties binds himself to grant to the other the
enjoyment of a thing for a specified time and for a specified rent
which the latter binds himself to pay to the former.
(2) Any kind of corporeal property, whether movable or
immovable, may be the subject of a contract of letting and hiring.
Letting by co-
possessor when 
voidable. 
1527.    The letting made by one of the co-possessors of the thing,
without authorization by a judgment of the competent court or
without the consent of any one of the other co-possessors, can, on
the demand of such other co-possessor, be annulled, provided such
demand is made within two months from the day on which such
other co-possessor had knowledge of the letting.
When court may 
grant 
authorization.
1528.    The court may, on the demand of any of the co-possessors
of the thing by writ of summons, grant the authorization mentioned
in the last preceding article, where it is shown that the thing is
capable of being let and that the proposed letting is advantageous
and provided it is not shown that any of the other co-possessors had
a just cause to oppose the letting.
Right of preference 
of co-possessor.
1529.    The co-possessor who has, in general terms, given his
consent for the letting of the thing, or, in spite of whose opposition
the court has, in general terms, given its authorization for the
letting of the thing, may nevertheless exercise the right of
preference referred to in articles 1591, 1592 and 1593 unless he has
in any manner waived such right.
Letting made by 
person possessing 
thing under entail 
or in usufruct ,  etc.
1530. (1) The letting made by a person possessing the thing
under entail or in usufruct or under any other temporary or
dissoluble title, shall be valid even in regard to his successors, if it
is made on fair conditions and for a term not exceeding eight years,
in the case of rural tenements, or four years, in the case of urban
tenements, or an ordinary period according to usage in the case of
movable property, or for any period, shorter than the said periods
respectively, in the case of property the letting of which for a
period exceeding such shorter period is prohibited.
(2) The letting made for any longer period by a person
possessing the thing as aforesaid shall, on the demand of his
successors in the possession of the thing, be reduced to the
respective period above-mentioned, to be reckoned from the date of
the contract.
When lease for a 
longer period is 
authorised by 
competent 
authority.
1531.    The provisions of the last preceding article in so far as
they restrict the duration of the lease shall not apply where a longer
period of lease has been covenanted with the authorization of the
competent authority according to law.
Presumptive 
duration of lease.
Amended by: 
I.1870.1.
1532.    In the absence of an express agreement or of
circumstances tending to show the intention of the contracting
parties as to the duration of the lease, the following rules shall be
270               CAP.16. ħ                CIVIL CODE
observed:
( a ) the letting of an urban tenement or of a movable shall
be deemed to be made for the period in respect of
which the rent has been calculated, that is, for one
year, if the rent has been agreed upon at so much a
year; for one month, if the rent has been agreed upon
at so much a month; for one day, if the rent has been
agreed upon at so much a day:
    Provided that if it is not made to appear that the rent
has been agreed upon by the year, the month or the
day, it shall be deemed to have been agreed upon
according to usage;
( b ) the letting of a rural tenement shall be deemed to be
made: if the tenement is capable of producing fruits,
for the period which is necessary for the gathering of
the produce of four years; if the tenement is not
capable of producing fruits, for the period in respect of
which the rent is calculated, as is provided in the case
of urban tenements;
( c ) if any particular usage is proved in regard to the
duration of the letting of certain things, such things
shall be deemed to be let out for the period fixed by
such usage.
Rent. 1533. (1) The rent may be either in money or in kind, or even
in a portion of the fruits produced by the thing.
(2) Where it is not shown that the rent has been agreed upon as
payable in kind or in a portion of the fruits, it shall be deemed to
have been agreed upon as payable in money.
How rent is fixed 
when not agreed 
upon.
1534.    Where the contract has already commenced to be carried
into effect, the rent, in the absence of an express agreement, or of
any law fixing the amount thereof, shall be fixed at the current
price, if any, or, in the absence of a current price, by means of a
valuation by experts.
Payment of rent in 
advance.
1535. (1) Every payment in advance in respect of rent of rural
tenements is null, if any prejudice is caused thereby to the
hypothecary creditors of the lessor or to the persons succeeding to
the property under an entail, or to whom, in consequence of any
dissolution of his right, the property passes.
(2) Every payment in advance in respect of rent of an urban
tenement for more than six months is also null, if any prejudice as
aforesaid is caused thereby.
Tacit renewal of 
lease.
1536.    If, at the expiration of the lease, the lessee continues and
is suffered to continue in the enjoyment of the thing let to him, the
lease shall be deemed to be renewed on the same conditions and
with the same rights and duties, for a period to be regulated in
accordance with the provisions of article 1532, except as regards
rural tenements with respect to which the lease shall be deemed to
be renewed for the period which is necessary for the gathering of
     CIVIL CODE            ġ CAP. 16.             271
the produce of one year:
  Provided that where the rent is payable in termly payments, the
lease, except as regards rural tenements, shall be deemed to be
renewed for a time corresponding to the period of one term only.
When tacit renewal 
does not take 
place.
1537.    When the lessor has given notice to the lessee to surrender
the thing at the expiration of the lease, the lessee may not set up the
tacit renewal as provided in the last preceding article, even though
he has continued in the enjoyment of the thing.
Extent of security.
any of the cases mentioned in the last two preceding articles,
extend to the obligations resulting from the renewal of the lease, or
the continued occupation of the thing unless the surety has
expressly bound himself for the whole time until the lessee
surrenders the thing.
§  I.  OF THE  R IGHTS AND  O BLIGATIONS OF THE  L ESSOR
Obligations of 
lessor.
1539.    The lessor is bound, by the nature of the contract, and
without the necessity of any special agreement - 
( a ) to deliver to the lessee the thing let;
( b ) to maintain the thing in a fit condition for the use for
which it has been let;
( c ) to secure the lessee in the quiet enjoyment of the thing
during the continuance of the lease.
Delivery of thing 
in good state of 
repair.
1540. (1) The lessor is bound to deliver the thing in a good
state of repair in every respect.
(2) During the continuance of the lease, the lessor is bound to
make all the repairs which may become necessary, except, with
regard to urban tenements, the repairs mentioned in article 1556
unless he shall have expressly bound himself to carry out even such
repairs.
When lessee may 
be authorised to 
carry out repairs.
1541. (1) If the lessor, on being required so to do by means of
a judicial act, fails to carry out the repairs to which he is bound, it
shall be competent to the lessee to demand, by writ of summons,
that he be authorized to carry out such repairs at the expense of the
lessor, on such conditions as the court may deem proper, according
to circumstances.
(2) The lessee may retain the rent due or to become due, in
reimbursement of the said expense, saving his right to any greater
sum if such expense exceeds the amount of such rent.
Liability of lessor 
for delay.
1542.    The lessor is bound to make good to the lessee the damage
which the latter has sustained in consequence of the delay on the
part of the lessor in carrying out, on the intimation mentioned in the
last preceding article, the repairs to which he is bound.
272               CAP.16. ħ                CIVIL CODE
Urgent repairs. 1543.    It shall be lawful for the lessee, without the necessity of
any judicial proceedings, to carry out at the expense of the lessor
the repairs the omission or delay of which might cause to him
serious prejudice: and in any such case, he may, for the purpose of
reimbursement, retain the rent as provided in article 1541:
   Provided that the lessee shall be bound to give as soon as
possible notice thereof to the lessor and to communicate to him a
report by an expert as to the urgency of such repairs and the
prejudice which might result from delay:
  Provided also that the lessor shall be entitled to assume the
continuation of the repairs commenced under the provisions of this
article.
When contract may 
be dissolved for 
want of repairs.
1544.    If the repairs which the lessor is bound to carry out are
such that the omission thereof will prevent or considerably lessen
the enjoyment of the thing let, and the lessor fails to carry them out
within a time fixed by the court, the lessee may also demand the
dissolution of the contract, together with damages.
Liability of lessor 
in respect of 
defects or faults of 
thing let. 
1545. (1) The lessor is bound to warrant the thing let against
the faults or defects which prevent or diminish the use thereof; and,
where the existence of such faults or defects is proved, the lessee
may demand at his option either the dissolution of the contract or
an abatement of the rent.
(2) The same rule shall apply even though such faults or
defects shall have arisen after the stipulation of the contract.
(3) The lessor, however, shall not be bound in respect of
apparent faults or defects which the lessee could have discovered
for himself at the time of the contract.
Liability of lessor 
for damages in 
case of latent 
defects.
1546.    If, in consequence of latent faults or defects existing in
the thing let at the time of the contract, the lessee suffers any
damage, the lessor, if he knew of such faults or defects, or had a
reasonable suspicion thereof, shall be liable in damages unless he
shall have made known to the lessee the existence, or his suspicion
of the existence, of such faults or defects.
Lessor cannot 
change form of 
thing let.
1547.    The lessor cannot, during the continuance of the lease,
change the form of the thing let, without the consent of the lessee. 
Lessee to suffer the 
execution of urgent 
repairs.
1548. (1) If, during the continuance of the lease, the tenement
let requires urgent repairs which cannot be delayed until the
expiration of the lease, the lessee is bound to suffer the execution
of such repairs, whatever the inconvenience caused to him thereby,
even though, during such execution, he may be deprived of a part
of the tenement.
(2) Nevertheless, if the execution of such repairs takes more
than forty days, the rent shall be abated in proportion to the time
and to the part of the tenement of which the lessee is deprived.
Lessee may in 
certain cases 
demand dissolution 
of lease.
1549. (1) In the case of an urban tenement destined for
habitation, if the repairs mentioned in the last preceding article are
such as to render uninhabitable for any period of time that part of
     CIVIL CODE            ġ CAP. 16.             273
the tenement which is necessary for the habitation of the lessee and
his family, it shall be competent to the lessee according to
circumstances to demand the dissolution of the contract.
(2) The same rule shall apply in the case of movable property if
the repairs are such as to prevent the use of the thing for any period
of time.
Lessor not bound 
to warranty against 
molestations by 
third parties ,
1550.    The lessor is not bound to warrant the lessee against the
molestations which third parties may, by mere acts, cause to him in
the enjoyment of the thing let, where such third parties do not claim
any right thereon, saving the right of the lessee to proceed against
them in his own name.
unless a right on 
the thing is 
claimed.
1551. (1) Where, on the contrary, the lessee is disturbed in the
enjoyment of the thing in consequence of an action touching a right
on the thing let, he may maintain an action for damages against the
lessor, if he is entirely deprived of the thing, or for a proportionate
abatement of the rent, if he is deprived of only a part of the thing,
or if a diminution of the enjoyment of the thing or an inconvenience
is caused to him.
(2) It shall, however, be competent to the lessee, even in the
latter case, to sue for the dissolution of the contract and for
damages, if the part of the thing which is left to him does not serve
the purpose for which he had taken the whole thing on lease.
When damages 
may not be 
claimed.
1552.    The provisions of the last preceding article in respect of
the liability for damages shall not apply -
( a ) if the lessee fails to give notice to the lessor, without
delay, of the molestation, and the lessor is prejudiced
by such omission;
( b ) if the cause of the action referred to in the last
preceding article, has only arisen after the stipulation
of the contract, and is not due to an act of the lessor;
( c ) if, at the time of the contract, the lessee knew of the
right of the third party.
When lessee is 
bound to call upon 
lessor to defend 
him.
1553.    If the third parties who have caused molestation by mere
acts claim any right on the thing let, or if an action is brought
against the lessee himself to compel him to surrender the thing, in
whole or in part, or to suffer the exercise of any easement, he is
bound to call upon the lessor to defend him, and he shall, if he so
demands, have the proceedings against him discontinued, upon
declaring the name of the lessor under whom he holds the thing.
§  II. O F THE  R IGHTS AND  O BLIGATIONS OF THE  L ESSEE
Obligations of 
lessee.
1554.    The lessee is bound -
( a ) to make use of the thing let to him as a  bonus
paterfamilias , and for the purpose stated in the
274               CAP.16. ħ                CIVIL CODE
contract, or, in the absence of any agreement to that
effect, for such purpose as may be presumed according
to circumstances;
( b ) to pay the rent agreed upon, or fixed in accordance
with the provisions of article 1534.
Unlawful user of 
the thing let.
1555. (1) If the lessee uses the thing let for any purpose other
than that for which it is intended, or in a manner which may
prejudice the lessor, the latter may, according to circumstances,
demand the dissolution of the contract.
(2) The same rule shall apply if, in the case of rural tenements,
the lessee abandons the cultivation thereof, or does not cultivate
them as a  bonus paterfamilias ,   and the lessor may suffer thereby a
prejudice in respect of which no security was given him.
(3) In any of the aforesaid cases the lessee is also liable in
damages.
Repairs at the 
charge of lessee of 
urban tenement ,
1556.    The lessee of an urban tenement is bound to carry out the
repairs of -
( a ) stoves;
( b ) panes of glass;
( c ) shutters, window-frames, hinges, bolts and locks.
except if 
occasioned by age ,  
etc.
 1557.   None of the repairs mentioned in the last preceding
article shall be at the charge of the lessee, if the same shall have
been occasioned by age or by irresistible force, and without any
fault of the lessee.
Cleansing of 
cisterns and sinks.
1558.   The cleansing of cisterns and sinks shall be at the charge
of the lessor.
State in which 
thing is to be 
restored.
1559.   Where the lessor and lessee have made a description of
the condition of the thing let, the lessee is bound to restore the
thing in the same condition in which he received it, according to the
description, except as regards that which may have perished or
deteriorated through age or irresistible force.
When thing is 
presumed to have 
been received in 
good condition.
1560.   Where no description of the condition of the thing let has
been made, it shall, in the absence of any proof to the contrary, be
presumed that the lessee received the thing in good condition, even
as regards the repairs mentioned in article 1556.
Liability of lessee 
for damage ,  etc.
1561.   The lessee is liable for any deterioration or damage which
occurs during his enjoyment, unless he proves that such
deterioration or damage has occurred without any fault on his part.
Liability of lessee 
in case of fire.
1562.    The lessee shall be liable for any damage caused by fire,
unless he proves that it occurred without any fault on his part, or on
the part of any of the persons mentioned in the next following
article, or through a fortuitous event, or an irresistible force, or
through a faulty construction, or that the fire was communicated
from a neighbouring tenement.
     CIVIL CODE            ġ CAP. 16.             275
Liability of lessee 
for acts of 
servants ,  etc.
1563.    The lessee is liable for any deterioration or damage
caused by any act or default of the members of his family, or of his
servants, guests, or sub-lessees.
Improvements.
lease, make any alteration in the thing let without the consent of the
lessor, and he is not entitled to claim the value, whatever it may be,
of any improvement made without such consent.
(2) The lessee may, however, remove such improvements,
restoring the thing to the condition in which it was before they were
made, provided as regards improvements existing at the
termination of the lease, he shows that he can obtain some profit by
taking them away, and provided the lessor does not elect to keep
them and pay to the lessee a sum equal to the profit which, by
taking them away, the latter would obtain.
Lessee to give 
notice to lessor of 
encroachment ,  etc.
1565.    The lessee is bound, under pain of paying damages, to
give notice to the lessor without delay of any encroachment or
damage affecting the thing let.
§  III. O F THE  D ISSOLUTION OF THE  L EASE
Contract ceases on 
expiration of term ,  
1566.    A contract of letting and hiring ceases  ipso jure  on   the
expiration of the term expressly agreed upon, and it shall not be
necessary for either of the contracting parties to give notice to the
other.
even if ,  in case of 
rural tenements or 
movables ,  the term 
is presumed.
1567.    With regard to rural tenements or movables, the contract
shall also cease  ipso jure  on the expiration of the term, even though
such term is presumed as provided in article 1532.
If duration of lease 
of urban tenements 
is presumed ,  notice 
to quit is required.
1568.    With regard, however, to urban tenements, when the
duration of the lease is presumed as provided in article 1532, the
contract shall not cease on the expiration of the term unless either
of the parties gives notice to the other at least one month before, if
the presumed duration of the lease is for one year, or fifteen days
before, if such duration is for less than one year.
Cessation of lease 
upon happening of 
resolutive 
condition ,
1569. (1) A contract of letting and hiring shall also be
dissolved  ipso jure  upon the fulfilment of a condition under which
the dissolution of the contract was expressly covenanted, saving
any action for damages which may be competent to the covenantee
according to law.
(2) If the dissolution of the contract is covenanted in the event
of either of the parties failing to perform that which he has
promised, the dissolution shall take effect only from the day on
which the covenantee shall have, by means of a judicial act, given
notice to the covenantor of his intention to avail himself of the
covenant.
(3) In the cases referred to in this article, no time for clearing
the delay can be granted to the party in default.
276               CAP.16. ħ                CIVIL CODE
or on the ground of 
non-performance ,  
1570. (1) A   contract of letting and hiring may also be
dissolved, even in the absence of a resolutive condition, where
either of the parties fails to perform his obligation; and in any such
case the party aggrieved by the non-performance may elect either
to compel the other party to perform the obligation if this is
possible, or to demand the dissolution of the contract together with
damages for non-performance.
(2) In the latter case, unless the dissolution of the contract was
expressly covenanted, it shall be lawful for the court to grant to the
defendant a reasonable time, according to circumstances, for the
performance of the aforesaid obligation, provided the granting of
such time is not prejudicial to the plaintiff.
or if the thing is 
destroyed.
1571. (1) If, during the continuance of the lease, the thing let
is totally destroyed by a fortuitous event, the lease is  ipso jur e
dissolved; if it is destroyed only in part, the lessee may, according
to circumstances, demand either an abatement of the rent or the
dissolution of the contract.
(2) The lessee may also, according to circumstances, demand
an abatement of the rent or the dissolution of the contract, if owing
to a fortuitous event, the thing let has become unserviceable.
(3) No compensation may be claimed in any of the cases
mentioned in this article.
Lease not 
dissolved by death 
of lessor or lessee ,
1572.   A contract of letting and hiring of a thing is not dissolved
by the death of the lessor or of the lessee, saving the provisions of
article 1589.
or on the ground 
that lessor desires 
the house for his 
own habitation ,
1573.   It shall not be lawful for the lessor to dissolve the contract
on the ground that he desires the house let for his own habitation,
unless the right to do so has been expressly stipulated, in which
case the lessor shall be bound to give notice to the lessee one month
before, if the remaining period of the lease is not less than one year,
or fifteen days before, if the remaining period of the lease is less
than one year.
or in case of 
alienation of thing 
let.
1574.    If the lessor sells the thing let, or alienates it in any other
manner, the alienee cannot dissolve the lease, unless the lessor has
reserved to himself such power in the contract of lease.
Notice by alienee 
to lessee.
1575. (1) The alienee of the thing let desiring to avail himself
of the power reserved in the contract respecting the dissolution of
the lease in case of sale or other alienation, is bound, unless
otherwise agreed upon in the contract, to give notice to the lessee,
one year before, in the case of rural tenements, and one month or
fifteen days before in accordance with the provisions of article
1573 in the case of urban tenements.
(2) In the case of movables, the notice to the lessee must be
given eight days before, or at least so many days before as
correspond to half of the remaining period of the lease.
     CIVIL CODE            ġ CAP. 16.             277
Buyer cannot eject 
lessee while his 
title is subject to 
dissolution.  
Amended by: 
IV.1961.2.
1576.    The buyer of a tenement subject to the right of redemption
cannot avail himself of the power to eject the lessee, until he shall
become irrevocably the owner of such tenement.
Tenements 
belonging    to the 
Government ,  etc.
Added by: 
IV.1995.3.
1576A.   Notwithstanding the other provisions of this Code and of
any other law, the lessor, where this is the Government or any
corporation or authority established by law, may at all times in the
public interest, dissolve a contract of lease  where the lease has
been made for a fixed term which has not expired, by giving notice
by means of a judicial act to the lessee, which notice shall be of not
less than three months both in the case of urban tenements used for
habitation and in the case of other tenements; and where such
notice has been given the contract of lease shall be dissolved on the
date mentioned in the notice and the following provisions of this
sub-title shall be applicable.
Where no right to 
compensation 
exists. 
Added by: 
IV.1995.3 .
1576B.    Where the lessor who dissolves the contract in
accordance with article 1576A of this Code, would have had a valid
reason to dissolve the contract in accordance with the provisions of
articles 1566 to 1575 of this Code, the lessee shall have no right to
compensation.  
Where a right to 
compensation 
exists. 
Added by: 
IV.1995.3.
1576C.    Where the lessor who dissolves the contract in
accordance with article 1576A of this Code would not have a valid
reason to dissolve the contract in accordance with the provisions of
articles 1566 to 1575 of this Code, he is to pay to the lessee a sum
to be fixed by the court, according to circumstances, to compensate
to the said lessee for the added expenses incurred by him to vacate
the tenement before the expired term as well as to lease, and
transfer to, another tenement as similar as possible to the one
vacated, and this for the unexpired term of the contract, and in the
case of commercial premises, where the lessee proves that he has
suffered a loss in the goodwill because of the dissolution of the
contract, a sum to be fixed by the court, according to
circumstances, to compensate for the loss in such  goodwill, taking
into account the unexpired term of the lease before the dissolution.
No court 
declaration is 
required. 
Added by: 
IV.1995.3.
1576D.    (1)  The contract shall be immediately dissolved when
the lessor gives notice to the lessee as provided in article 1576A,
and the lessee shall no longer have any title to the tenement, and
this without the need of any authorisation or confirmation by the
court.
(2) The dissolution of the contract according to article 1576A
shall not be opposed on the allegation that there is no necessity
therefor in the public interest, but if it is proved that the contract is
dissolved abusively and not in the public interest, the lessee shall
have a right to such damages as the court may deem appropriate in
the circumstances.
278               CAP.16. ħ                CIVIL CODE
Amended by: 
I.1870.2.
§  IV. O F  S PECIAL  R ULES AS TO  L EASES OF RURAL  T ENEMENTS 
YIELDING  F RUITS
Remission or 
abatement of rent ,  
in case of loss of 
crop.
1577.   If the lease is made for two or more years and, during the
lease, there shall be lost, by any fortuitous event, the whole crop of
one year or at least so much of it that the value of the remaining
fruits, after deducting the value of the seeds and the expense of
gathering such fruits, shall not be equivalent to one-half of the rent
agreed upon, the lessee is entitled to demand, in the former case,
the remission of the whole rent, and, in the latter case, an
abatement of the rent, corresponding to the difference between the
value of the remaining fruits and the amount of the said rent.
Lessee to demand 
that loss be 
ascertained.
1578.    In order to obtain the remission or abatement aforesaid,
the lessee must, during the time of the ripening of the fruits and
before the gathering thereof, demand, by writ of summons, that the
loss be ascertained; in default of such demand he is debarred from
bringing in his claim.
Where no 
remission or 
abatement is 
allowed.
1579.   No remission or abatement of rent shall be allowed if on
striking a balance between any excess and deficiency in respect of
the previous years, there remains a profit sufficient to reduce the
loss sustained in the year mentioned in the demand to less than one-
half of the rent.
Adjustment of loss 
where lease is to 
continue.
1580.   If after striking such balance, the aforesaid loss is found
to be greater than one-half of the rent, and the lease is to continue
for another year or more, it shall be lawful for the court
provisionally to exempt the lessee from the payment of the rent in
proportion to the loss sustained.
Adjustment to be 
definitely made at 
the expiration of 
lease.
1581.   In such case, however, the issue of the remission or
abatement of rent shall not be definitely settled except at the
expiration of the lease, when another balance shall be struck of any
excess and deficiency in respect of the crops gathered during the
whole term of the lease, and no remission or abatement shall be
granted if on striking such balance there shall remain a profit
sufficient to reduce the loss sustained in the year mentioned in the
demand to less than one-half of the rent.
If there is no loss at 
the time of 
computation ,  
remission or 
abatement cannot 
be sought 
afterwards.
1582.    If on striking the balance as provided in article 1579 no
remission or abatement of rent is found to be due, it shall not be
lawful for the lessee to renew the demand at the expiration of the
lease notwithstanding any deficiency in the following years; saving
his right to demand the remission or an abatement of the rent in
respect of each of such following years if there are sufficient
grounds for such demand.
Remission or 
abatement when 
granted cannot be 
recalled.
1583.    If, during the continuance of the lease, the lessor has
granted to the lessee the remission of the rent of one year, or an
abatement thereof, in consideration of the loss sustained in such
year, he may not demand the payment of the amount remitted, even
though on striking a balance as provided in article 1581 it shall
appear that the lessee during the years following such remission or
abatement has made a profit corresponding to or even exceeding
such loss, unless the lessor in granting the remission or abatement
shall have reserved to himself such right.
     CIVIL CODE            ġ CAP. 16.             279
Remission or 
abatement where 
lease does not 
exceed one year.
1584.    Where the time of the lease does not exceed one year, the
lessee shall be equally entitled to a remission or an abatement of
the rent, in the event of the happening, during such year, of the
circumstances mentioned in article 1577.
Rent paid may not 
be recovered.
1585.    In no case may the lessee on account of any loss sustained
recover the rent paid by him, unless in paying such rent he shall
have reserved to himself such right, or unless he shall have paid the
rent in advance.
No remission or 
abatement in 
respect of loss of 
fruits separated 
from the soil ,
1586.    The lessee has no right to the remission or an abatement
of the rent, if the loss of the fruits occurs after they have been
separated from the soil, unless the rent shall have been made to
consist in a share of the fruits in kind, in which case the lessor must
bear a proportionate part of the loss, provided the lessee was not in
default for delay in delivering to the lessor the latter’s share of the
fruits.
nor if cause of loss 
existed at time of 
contract.
1587.    Nor may the lessee demand the remission or an abatement
of the rent, if the cause of the loss existed and was known at the
time the lease was contracted.
Lessee may 
undertake to bear 
loss caused by 
fortuitous event.
1588. (1) The lessee may, by an express covenant, undertake
to bear any loss caused by fortuitous events.
(2) Any such covenant shall be deemed to apply only to
ordinary fortuitous events, such as hail, or the excessive abundance
or scarcity of rain.
(3) It shall not be deemed to extend to extraordinary fortuitous
events, unless the lessee shall have undertaken to bear all fortuitous
events, whether foreseen or unforeseen.
Lease ,  if under 
Metayer System ,  
dissolved by death 
of lessee.
1589.    The lease of a rural tenement is dissolved by the death of
the lessee if it is entered into on condition that the produce shall be
divided between lessor and lessee.
§  V. O F THE  R IGHT OF  P REFERENCE IN THE  L EASE OF  T HINGS
Right of preference 
or of tenancy ,  
Amended by: 
L.N. 148 of 1975.
1590.    The right of preference or of tenancy in respect of the
lease of things shall not be available, even with regard to property
of the Government of Malta, except in the cases laid down in any of
the articles following.
of co-possessor ,
each of them has a right of preference over strangers in respect of
the lease of such thing, on the same conditions offered by others.
to be exercised by 
co-possessor 
himself.
1592.    The said right cannot be exercised except by the co-
possessor himself, and it cannot be exercised by him after the thing
has been validly let to any other person.
Concurrent 
exercise of such 
right by two or 
more co-
possessors.
1593.    In the event of concurrent claims by two or more persons
having such right, it shall be lawful for any of them to demand that
the thing be let, upon an auction, to the highest bidder, and that
strangers be not admitted to bid.
280               CAP.16. ħ                CIVIL CODE
Right of preference 
of sitting tenant.  
Amended by: 
XLII.1933.2; 
XVI.1967.20; 
VI.1972.2.
1594.    If there are no claims on the part of persons having a right
of preference on the ground mentioned in article 1591, a right of
preference, in regard to tenements, is granted - 
( a ) to the lessee in the last preceding lease of an urban
tenement, in respect of the new lease of the same
tenement;
( b ) to the possessor or occupier of the upper part of a
building, in respect of the new lease of the lower part
of the same building, whether such lower part belongs
to the lessor of the upper part or to any other person,
and whether it has or has not access from the street:
  Provided that the right of preference granted under
this paragraph shall not apply in the case of any
building constructed or used as a common tenement
house or of any building consisting of flats which,
though having in common other parts of the building,
are constructed, leased, or occupied for use separately.
Right of preference 
is merely personal.
1595. (1) In the cases mentioned in the last preceding article,
the right of preference can be exercised in the manner and within
the times hereinafter stated, even after the new lease has been
agreed upon with others.
(2) Such right, however, is merely personal, and it may not be
transferred to other persons, nor shall it transmit to the heirs or
other successors of the person entitled thereto.
How right of 
preference is 
exercised.
1596.    A person vested with the right of preference for any of the
causes mentioned in article 1594 must, in order validly to exercise
such right, within fifteen days from the day on which he shall have
been notified by the lessor of the conditions offered by or agreed
upon with others, accept such conditions, and give, if
simultaneously with the aforesaid notification he is so required,
sufficient security for the performance of the said conditions where
such security is included in such conditions.
Notification of 
conditions.
1597. (1) The notification of the conditions offered or agreed
upon, shall be made by the lessor by means of a judicial act calling
upon the person to be served therewith to declare, within the time
mentioned in the last preceding article, whether he intends to
accept such conditions, and warning him that, in default of
acceptance within the aforesaid time, his right of preference shall
lapse.
(2) Where the new lease is in writing, the lessor may, in the
aforesaid judicial act, state the conditions of such lease by a mere
reference to the writing, but in such case he must, if the writing is a
private writing, annex a copy thereof, or if the writing is a notarial
deed or a draft thereof, state in the said act the name, surname and
place of residence of the notary having such deed or draft.
Where party to be 
notified with 
conditions is 
absent.
1598. (1) If the party to be notified is absent from Malta, the
notification in his behalf may be made to any attorney of such
party, or to any other person charged by him with the custody of the
premises or of the keys thereof, or holding or occupying the
     CIVIL CODE            ġ CAP. 16.             281
premises, under any title whatsoever, with his consent.
(2) In default of such attorney or person charged as aforesaid or
holder or occupier, the notification may be made by means of an
advertisement in the Government Gazette.
(3) In the cases referred to in this article, the time for accepting
the conditions is of one month.
Acceptance.
the production of security, where required, shall also be given to
the lessor by means of a judicial act.
Nullity of 
notification of 
conditions or of 
acceptance.
1600.    If in the cases mentioned in the last three preceding
articles the notification of the conditions or the acceptance thereof
is made otherwise than as prescribed in those articles, such
notification or acceptance shall be null.
Hypothecary 
security.
1601.    If the lessee possesses immovable property, he may offer,
as security, the hypothecation of such property in lieu of any other
security required by the lessor under the provisions of article 1596.
Where lessor 
rejects security as 
insufficient.
1602.    If on production of the security within the time stated in
article 1596 the lessor, within fifteen days from the notification of
such production by means of a judicial act, rejects such security as
insufficient, the lessee may, within four days from the notification
of such act, demand, by writ of summons, that the security
produced by him be declared sufficient and that his right of
preference be declared operative.
Court may allow 
fresh security.
1603.    If, on such writ of summons, the lessee fails to establish
the sufficiency of the security, the court may, before giving
judgment, allow him a time not exceeding eight days within which
to produce a fresh security and, if such fresh security, whether
alone or together with the previous one, is not deemed by the court
to be sufficient, the court shall proceed to give judgment on the
aforesaid writ of summons, declaring the right of preference as
lapsed.
Times are 
peremptory.  
1604.    The times established in the last two preceding articles
are peremptory.
Annulment of con-
ditions of new 
lease on the ground 
of misrepresenta-
tion ,  etc.
1605. (1) Notwithstanding the acceptance of the conditions of
the new lease, it shall be lawful for the party who had accepted
such conditions to demand, during the lease, the annulment of all
such conditions together with damages, if he proves any
misrepresentation or fraud to his prejudice in regard to any of such
conditions; and in such case the new lease shall remain operative
on the same conditions of the previous lease, at a rent to be fixed on
a valuation by experts having regard to the circumstances
prevailing at the time when the conditions so impeached were
accepted.
(2) The action for damages on the ground of misrepresentation
or fraud as aforesaid, may even be exercised within a year from the
dissolution of the new lease, but not after the expiration of such
year.
282               CAP.16. ħ                CIVIL CODE
When right of 
preference is not 
competent. 
Amended by: 
XXXIX.1939.5.
1606.    No right of preference shall be competent in any of the
cases mentioned in article 1594, if the lease is granted for a time
not less than one year to a person related to the lessor by
consanguinity or affinity up to the degree of cousin inclusively; but
in case of misrepresentation or fraud, the party vested with the right
of preference may maintain an action for damages exercisable
within one year only, to be reckoned, in the case mentioned in
paragraph ( a ) of the said article, from the day on which the said
party shall have quitted the tenement in consequence of the said
lease, and, in the case mentioned in paragraph ( b ) of the same
article, from the date of the said lease.
When right of 
preference of 
sitting tenant is not 
competent.  
Amended by: 
XXXIX.1939.6; 
XI.1977.2.
1607.    The right of preference granted under paragraph ( a ) of
article 1594 to the lessee in the last preceding lease, in respect of
the new lease of the same tenement, shall not be competent -
( a ) if the lessee does not reside in Malta;
( b ) if, at the time of the new lease, the lessee and his
family are, and have been since two years or more,
absent from Malta;
( c ) if, in the case of an urban tenement, neither the lessee
nor any member of his family dwells in the premises,
or has dwelt therein during the last two years
preceding the new lease, and the premises are mainly
intended for habitation;
( d ) if, previously to the new lease, the lessee has
surrendered or has been compelled to surrender the
tenement;
( e ) if the lessee, during the preceding lease, was not
punctual in the payment of the rent for two or more
terms;
   For the purposes of this paragraph, the lessee shall
not be deemed to have failed to be punctual, if the
payment of the rent is not delayed for more than
fifteen days from the day on which the lessor shall
have, even verbally, demanded such payment;
( f ) if the lessee has failed to perform or has contravened
any of the other obligations arising from the contract
of the last preceding lease; or has performed such
obligation only when compelled to do so by judicial
proceedings;
( g ) if the preceding lease was dissolved for any cause
other than that of the expiration of the time for which
it was to run;
( h ) if the lessee, without the express consent of the lessor,
has wholly sub-let the tenement or assigned the lease
thereof, and the tenement, at the time of the new lease,
is occupied by the sub-lessee or assignee, even though
the lessee has not been restrained from sub-letting the
tenement or assigning the lease thereof:
    Provided that where the sub-lease or assignment of
the lease is in respect of a part of the tenement, the
     CIVIL CODE            ġ CAP. 16.             283
right of preference shall cease in respect of that part
only; but the lessee shall also forfeit his right of
preference in respect of the part not sub-let or the lease
whereof is not assigned, if the lessor does not wish to
let the several parts of the tenement separately and the
lessee does not accept the new lease of the whole
tenement on the same conditions offered by or agreed
upon with others in respect of the whole tenement.
Right of preference 
may not be set up if 
lessee refuses to 
accept conditions 
of new lease.
1608.    The lessee may not set up his right of preference against
the demand for the surrender of the tenement, where such demand
is admissible, if he refuses to accept the new lease on the
conditions proposed to him and by the court deemed reasonable,
even though it is proved that the plaintiff intends to let out the
tenement to others on less onerous conditions.
If lessor declares 
not to let out the 
tenement before 
lapse of one year ,  
etc.
1609.    Nor may he set up his right of preference against the
aforesaid demand, where such demand is admissible, if the plaintiff
declares on oath that he does not intend to let out the tenement
before the lapse of one year to be reckoned from the day of the
demand, or that he does not intend to let out the tenement within
the said time on conditions less onerous than those which the
defendant shall have refused to accept, whatever such conditions
may be, and irrespective of any opinion of the court in regard to
such conditions:
  Provided that if the declarant shall, in violation of the terms of
any such declaration, let out the tenement, within the time
aforesaid, to persons other than those mentioned in article 1606, the
party who has surrendered the tenement in consequence of such
declaration, may maintain against the declarant an action for
damages, exercisable within one year from the day on which the
tenement shall have been so let out.
When right of 
preference 
competent to 
occupier of upper 
part of building 
ceases.
1610.    The right of preference granted under paragraph ( b ) of
article 1594 to the possessor or occupier of the upper part of a
building in respect of the new lease of the lower part of the same
building shall not be competent - 
( a ) if the possessor or occupier of the upper part does not
make use thereof for his own habitation or that of his
family;
( b ) if the new lease of the lower part is claimed by the
lessee himself who enjoyed the last preceding lease, in
virtue of the right of preference granted under
paragraph ( a ) of article 1594.
Where several 
occupiers of upper 
parts of building 
claim right of 
preference.
1611.    Where two or more possessors or occupiers of several
upper parts of a building claim the new lease of the lower part,
preference shall be given to the possessor or occupier of the part of
the building immediately overlying the part to be let out.
Where overlying 
extent is greater.
1612.    If the lower part immediately underlies the parts of the
same building, possessed or occupied by the competitors claiming
the new lease, preference shall be given to the possessor or
occupier whose part overlies the lower part to a greater extent; and
284               CAP.16. ħ                CIVIL CODE
if such upper parts overlie the lower part to the same extent, the
lessor may grant the lease to any one of the competing claimants
whom he prefers.
 §  VI. O F  S UB-LETTING
Sub-letting. 1613.    In the absence of special provisions, the contract of sub-
letting is regulated by the same provisions which regulate the
contract of letting and hiring.
Lessee can sub-let 
unless restrained.
1614. (1) The lessee has the right to sub-let or assign the lease,
unless he has been restrained from so doing in the contract.
(2) Such restraint may be total or partial.
Extent of restraint. 1615. (1) The restraint of the power to sub-let shall not operate
so as to restrain the lessee from using the thing let, as an hotel or a
lodging-house, provided such use has not been expressly forbidden
in the contract, saving the provisions of article 1555.
(2) Nor shall it operate so as to restrain the lessee from
allowing other persons to dwell with him on payment of part of the
rent, or for any other consideration, provided he has not been
expressly forbidden to do so in the contract.
Lessee under 
Metayer lease 
cannot sub-let 
without lessor’s 
consent.
1616.    A lessee who cultivates land under a covenant of sharing
the produce with the lessor, cannot sub-let or assign the lease,
unless such power has been expressly granted to him by the lessor.
Lessee of part of 
building cannot 
sub-let.
1617.    Nor may the occupier of a part of an urban tenement, not
separated from other parts of the same tenement, or having access
by the same entrance as other parts of the same tenement, sub-let or
assign the lease, without the consent of the lessor.
Right of lessor to 
be recover 
possession of 
tenement if used 
for immoral 
purposes.  
Amended by: 
XXXIX.1939.8.  
1618.    Notwithstanding that the power to sub-let or to assign the
lease has not been excluded, the lessor shall have the right to
recover possession of the premises, if such premises are sub-let or
the lease thereof is assigned to any person using, causing or
suffering the same to be used for purposes of prostitution or for
other immoral purposes.
Right of original 
lessor on things of 
sub-lessee. 
Amended by: 
VII.1944.3; 
XLVI.1973.85.
1619.    The lessor may enforce his rights for rent, compensation
for non-repairs, or in connection with any other covenant of the
lease, on the fruits and on the value of all things which serve for the
furnishing or stocking, or for the cultivation of the tenement, even
though such fruits or other things belong to the sub-lessee, and the
latter has discharged his liabilities towards his sub-lessor:
  Provided that such rights shall not be available to the lessor in
respect of the said things if the same belong to or are held by or on
behalf of any department of the Government of Malta in any case in
which such department is not itself directly liable for the payment
of the debt.
     CIVIL CODE            ġ CAP. 16.             285
Rights of sub-
lessee.
1620.    The sub-lessee may not claim against the lessor any of the
rights competent to the lessee.
Applicability of 
ss.1619 and 1620.
1621.    The provisions of the last two preceding articles shall also
apply in cases where the lessee has not been restrained from sub-
letting or from assigning the lease, or has been expressly allowed to
do so, unless the lessor has expressly released the lessee from his
obligations or has expressly acknowledged the sub-lessee instead
of the lessee.
Right of preference 
applicable to sub-
lease.
1622. (1) The right of preference referred to in article 1591,
shall also apply in the case of the sub-letting of a thing held in
common by several lessees.
(2) The right of preference granted under paragraph   ( a ) of
article 1594 is also competent to the sub-lessee in respect of the
new sub-lease of the premises; but the right of preference granted
under paragraph ( b ) of the said article is competent to the sub-
lessee only in cases where the lower part of the building is sub-let
by the person who had sub-let the upper part to the said sub-lessee.
(3) The provisions of articles 1596 to 1610, inclusively, shall
apply in all the cases referred to in this article.
Sub-title II
O F THE  L ETTING OF  W ORK AND  I NDUSTRY
Definition of 
contract of letting 
of work and 
industry.
1623.    A contract of letting of work and industry is a contract
whereby one of the contracting parties binds himself to do some
thing for the other, for a reward which the latter binds himself to
pay to the former.
Reward.
or custom, it shall be fixed by the court, upon a valuation by
experts or, even without such valuation, according to
circumstances.
Work prohibited 
by law ,  etc.
1625. (1) Any agreement for work or services prohibited by
law or contrary to morality, is void.
(2) The performance or execution of such work or services
gives no action for remuneration.
Cases of contract 
of letting of work 
and industry.
1626.    The following are contracts of letting of work and
industry:
( a ) that of a domestic servant, workman or other employee
who binds himself to work in the service of another; *
( b ) that of carriers who undertake the carriage by land or
water, of persons or things;
*Until 1952 ,  this contract was regulated by the provisions contained in §I "Of the
Hiring of Domestic Servants ,  Workmen and other Employees" ,  of this sub-title. These
provisions were repealed by Act XI   of 1952.
286               CAP.16. ħ                CIVIL CODE
( c ) that of persons undertaking contracts of works.
Applicability of 
ss.1569 and 1570 
to contracts of 
letting and hiring 
of work and 
industry.
1627.    The provisions of articles 1569 and 1570 shall also apply
in the case of contracts of letting and hiring of work and industry,
saving the special provisions respecting such contracts.
Prohibition of 
discrimination.
Added by:
XX. 2002.3.
1627A.  No person may take any discriminatory action or
sanction against any of his officers, employees or agents on the
grounds that such officers or employees, having reasonable
grounds to suspect corruption reported in good faith their suspicion
to responsible persons or authorities, and any person who may have
been the victim of such discriminatory action or sanction shall,
without prejudice to any other right under any other law, have a
right to compensation for any damage caused to him by such
discriminatory action or sanction.
§  I. O F  C ARRIERS BY  L AND OR  W ATER
Liability of 
carriers ,
1628.     Carriers by land or water are, in respect of the custody
and preservation of the things entrusted to them, subject to the
same liabilities as depositaries.
for things delivered 
to them ,  
1629.    They are responsible not only for the things which they
have received in their vehicle or boat or other vessel, but also for
the things delivered to them in any place to be put in the vehicle, or
boat or other vessel, or to be carried in any other manner.
for loss. 1630.    They are liable for the loss of or injury to the things
entrusted to them, unless they prove that such loss or injury was
caused by a fortuitous event or irresistible force and without any
fault on their part.
Carriage by water. 1631.    The carriage by water referred to in this Code, is the
carriage, by boat or other sea vessel, within the limits of Malta, that
is: from one island to the other, or from one part of an island to
another part of the same island.
Saving. 
Cap. 10.
1632.    Nothing in this Code shall affect the provisions of the
Code of Police Laws.
§  II. O F  C ONTRACT OF  W ORKS OR  LOCATIO OPERIS
Agreement with 
person undertaking 
to execute work.
1633.    In a contract to execute a certain work it can be agreed
that the person undertaking the work shall bestow only his labour
or skill, or that he shall also supply the materials.
ŻIf thing perishes 
before delivery 
where artificer 
supplies materials.
1634.    If, where the artificer supplies the materials, the thing in
any manner perishes before it is delivered, the loss is borne by him,
unless the employer has been in default for delay in the receipt of
the thing.
     CIVIL CODE            ġ CAP. 16.             287
Where artificer 
bestows labour or 
skill only.
1635.    If, where the artificer bestows only his labour or skill, the
thing perishes, he is only liable for his fault.
No reward where 
thing perishes 
before delivery.
1636.    In the case mentioned in the last preceding article, if the
thing perishes, even though without fault on the part of the
artificer, before the work has been delivered, and without there
being any default for delay on the part of the employer in
examining it, the artificer shall no longer be entitled to claim the
reward, unless the thing has perished owing to a defect in the
materials.
Where work 
consists of several 
pieces.
1637. (1) In the case of a work consisting of several pieces or
which is done by measure, the work shall remain at the risk of the
artificer until the employer has examined the whole work, unless it
has been agreed that the examination of each piece shall take place
as soon as each piece is completed.
(2) All the pieces of the work paid for are presumed to have
been examined, if the employer pays the artificer in proportion to
the work performed.
(3) Such presumption, however, shall not arise, if the
payments, although stipulated, or effected on the completion of one
or more pieces of the work, are made on account of the whole work
and without any appropriation to any particular piece of such work.
Duration of 
liability of 
contractor and 
architect.
1638. (1) If a building or other considerable stone work
erected under a building contract shall, in the course of fifteen
years from the day on which the construction of the same was
completed, perish, wholly or in part, or be in manifest danger of
falling to ruin, owing to a defect in the construction, or even owing
to some defect in the ground, the architect and the contractor shall
be responsible therefor.
(2) The relative action for damages must be brought within two
years from the day on which any of the said cases shall have
occurred.
Contractor cannot 
claim increase of 
price.
1639.    A contractor who has undertaken the construction of a
building or other considerable work, according to a plan
determined and agreed upon between him and the employer, cannot
claim any increase in the price, on the ground of an increase in the
rate of wages or the cost of the materials, or on the ground of
deviations from or additions to the plan, which are not onerous to
the contractor.
Employer may 
dissolve contract. 
Substituted by: 
IV.1995.4.
1640. (1) It shall be lawful for the employer to dissolve the
contract, even though the work has been commenced. 
(2) If the employer has no valid reason for the dissolution, he is
to compensate the contractor for all his expenses and work and to
pay him a sum to be fixed by the court, according to circumstances,
but not exceeding the profits which the contractor could have made
by the contract.  
(3) If the employer has valid reason for the dissolution, he is to
pay the contractor only such sum which shall not exceed the
expenses and work of the contractor, after taking into consideration
288               CAP.16. ħ                CIVIL CODE
the usefulness of such expenses and work to the employer as well
as any damages which he may have suffered.
(4) Any advance made to the contractor before the dissolution
of the contract shall be applied to the sums due in terms of sub-
article (2) or (3) of this article and the contractor shall return any
resulting excess to the employer.
(5) The contract shall be immediately dissolved when the
employer informs the contractor, by any means whatsoever, of his
decision to dissolve the contract, and this without the need of any
authorisation or confirmation by any court.
Contract is 
dissolved by death 
of artificer ,  etc.
1641. (1) A contract of works or  locatio operis  is dissolved by
the death of the artificer, the architect or the contractor.
(2) The employer, however, is bound to pay to the heirs of the
artificer, architect or contractor, in proportion to the price agreed
upon, the value of the work done and of the materials prepared, but
only if such work and materials may be useful to him.
Liability of 
contractor.
1642.    The contractor is responsible for the acts of the persons
employed by him.
Rights of masons ,  
etc.
1643.    Masons, carpenters and other artificers employed in the
construction of a building or other work undertaken in pursuance of
a contract of works, have no action against the person for whose
benefit the work has been performed, except to the extent of such
amount as may be due by such person to the contractor at the time
their action is instituted.
Title  X
O F  C ONTRACTS OF  P ARTNERSHIP
G ENERAL  P ROVISIONS
Definition of 
contract of 
partnership. 
1644.    Partnership is a contract whereby two or more persons
agree to place a thing in common, with a view to sharing the benefit
which may derive therefrom.
Object of 
partnership must 
be lawful.
1645. (1) Every partnership must have a lawful object, and
must be contracted for the common interest of the parties.
(2) Every partner must contribute either money or other
property, or his skill.
Partner cannot 
contribute what he 
expects to acquire 
by succession or 
donation.
1646. (1) Every agreement by which one of the partners is to
contribute the ownership or enjoyment of property which may in
future come to him by succession or donation, is void.
(2) A   contract containing such a provision may be wholly
annulled, upon the demand of any of the other partners.
     CIVIL CODE            ġ CAP. 16.             289
Provisions not 
applicable to 
commercial 
partnerships.  
Amended by: 
XLVI.1973.86. 
Cap. 168.
1647.    The provisions of this Title do not apply to commercial
partnerships except as provided by the Commercial Partnerships
Ordinance * .
Sub-title I
O F THE  D IFFERENT  K INDS OF  P ARTNERSHIP
General 
partnership of all 
property 
prohibited.
1648.    A general partnership of all the property of the partners,
although it refers to present property only, is void.
General 
partnership of 
profits permitted.
1649. (1) A   general partnership of profits is permitted: any
such partnership shall only include all that which the parties shall
acquire by their skill, under any title whatsoever, during the
continuance of the partnership, and the use of the movable or
immovable property intended for the exercise of the trade or
profession of the partner possessing such property.
(2) The partnership referred to in this article, unless made by a
public deed, is null.
Particular 
partnership.
1650.    A particular partnership is a partnership having for its
object certain specified things, or the use thereof, or the fruits
which may be derived therefrom, or a specified undertaking, or the
exercise of some trade or profession.
Where immovable 
property is 
contributed ,  public 
deed is necessary.
1651. (1) A contract of partnership whereby any one of the
partners binds himself to contribute the ownership of immovable
property is void so far as regards the obligation of contributing the
ownership of such property, unless it is made by a public deed.
(2) The provisions of sub-article (2) of article 1646 shall also
apply to any such contract.
Applicability of ss. 
994 to 996.
1652.    Where a partner has validly bound himself to transfer to
the partnership the ownership of the property which he is to
contribute, the provisions of articles 994, 995 and 996, shall apply
with respect to the transfer of such property.
Sub-title II
O F THE  O BLIGATIONS OF  P ARTNERS AS BETWEEN THEMSELVES
Commencement of 
partnership.
1653.    A partnership commences from the moment the contract
is made, unless another time is fixed.
*Repealed by Act XXV of 1995.  See  the Companies Act (Chapter 386).
290               CAP.16. ħ                CIVIL CODE
Stipulation 
whereby 
partnership is to 
last for ever ,  is 
null.
1654. (1) Any stipulation whereby a partnership is to last for
ever or during the whole life of any one of the partners, is void.
(2) A   contract of partnership containing any such stipulation
shall be deemed to have been entered into for an undefined time.
Where object of 
partnership is an 
undertaking of a 
limited duration.
1655.    If the partnership has for its object an undertaking having
a limited duration, it shall be deemed to have been contracted for
the whole time for which such undertaking is to last.
Liability of 
partners in respect 
of contributions.
1656. (1) Every partner owes the partnership all that which he
has promised to contribute thereto.
(2) Where this contribution consists of a specific thing of
which the partnership has suffered eviction, the partner making
such contribution is accountable therefor in the same manner as a
seller is to the buyer in case of eviction.
Liability of partner 
for interest on 
sums due or 
availed of by him.
1657. (1) The partner who has agreed to contribute a sum of
money to the partnership and has failed to do so, becomes  ipso jure
a debtor in the interest on such sum as from the day on which such
sum was payable by him.
(2) The same rule shall apply in regard to sums which a partner
has taken from the funds of the partnership for his own private
advantage, the interest on such sums to run from the day on which
he shall have so taken them.
(3) Nothing in this article shall affect the right of the
partnership to bring an action, where competent, for further
damages against such partner even though he has not been put in
default.
Presumption of 
private use of 
money of 
partnership.
1658.    A   partner who has taken money from the partnership
funds is presumed, unless he is the manager of the partnership, to
have taken it for his own private advantage, saving any proof to the
contrary.
Liability of 
partners 
contributing skill.
1659.    The partners who have agreed to contribute their skill to
the partnership are bound to render an account of all the profits
made by the exercise of such skill as forms the object of the
partnership.
Appropriation of 
payment made to 
managing partner 
who is also a 
separate creditor of 
the party paying.
1660.    Where a party who is charged with the management is
himself a separate creditor, in a sum fallen due, of a person who
also owes to the partnership a sum likewise, fallen due, any
payment received by such partner from the debtor shall be
appropriated to the debt due to the partnership and to the debt due
to himself, in proportion to the two debts, even though in giving
receipt he had appropriated the payment entirely to his own private
debt.
Where debt due to 
partner enjoys 
preference over 
that due to 
partnership.
1661. (1) The provisions of the last preceding article shall not
apply where the debt due to the partner is such that, according to
the rules laid down in paragraphs ( c ), ( d ),   ( e )   and ( f ) of article 1171
it enjoys preference over that due to the partnership and the
payment has been expressly appropriated to the debt due to the
partner.
     CIVIL CODE            ġ CAP. 16.             291
(2) In all cases, however, if the partner declares in the receipt
that the payment will be appropriated entirely to the debt due to the
partnership, it shall not be lawful for him to demand that payment
be appropriated, wholly or in part, to the debt due to him.
Where partner 
receives share of 
common debt from 
debtor who 
becomes insolvent.
1662.    Where one of the partners has received a share of a
common debt, he shall, if the debtor becomes insolvent, be bound
to contribute to the common stock the share received by him even
though in receiving payment, he had expressly given release for his
share of the debt.
Liability of partner 
for damage caused 
to partnership.
1663.    Each partner is liable towards the partnership for any
damage caused to the same through his fault, and he may not set off
against such damage the profits derived by the partnership from the
exercise of his skill in other affairs.
Where the 
enjoyment only of 
things has been 
brought into 
partnership.
1664. (1) Where the things of which the enjoyment only has
been brought into the partnership are certain and specified objects
which are not consumed by use, they remain at the risk of the
partner who is the owner thereof.
(2) If such things are consumed by use, or are such as cannot be
preserved without deteriorating, or were intended to be sold, or
were brought into the partnership upon a valuation, they remain at
the risk of the partnership.
(3) Where the thing has been appraised, the partner may only
recover the amount of the valuation.
Rights of partner 
against 
partnership.
1665.    A   partner may maintain an action against the partnership,
not only for the recovery of sums which he has disbursed on
account of the partnership, together with interest, but also in
respect of any obligations which he has contracted in good faith in
the affairs of the partnership as well as in respect of risks
inseparable from his management.
Shares of partners 
in profits or losses.
1666. (1) Where the contract of partnership does not fix the
share of each partner in the profits or losses, such share shall be in
proportion to each partner’s contribution to the assets of the
partnership.
(2) With regard to a partner who has only contributed his skill,
his share in the profits or losses shall be regulated in the same
manner as the share of the partner who has contributed to the
partnership the least sum or portion.
Where partners 
have agreed to 
refer the 
determination of 
such shares to the 
decision of one of 
the partners ,  etc. 
1667. (1) Where the partners have agreed to refer the
determination of such shares to the decision of one of them or of a
third party, such decision may not be impeached unless it is
manifestly contrary to equity.
(2) It may not be impeached, even in such case, if more than
three months have elapsed from the day on which the partner who
deems himself aggrieved by such decision has had notice thereof or
if he himself has commenced to give execution to such decision.
(3) If the party to whose decision the partners have agreed to
refer is unwilling or unable to fix the shares or fails to fix such
shares within the time agreed upon by the parties or, in the absence
292               CAP.16. ħ                CIVIL CODE
of an agreement, within the time of one month, the partnership is
null.
Nullity of certain 
agreements.
1668. (1) Any agreement whereby one of the partners is to
have the whole of the profits is null.
(2) Any agreement whereby the capitals or things brought into
the partnership by one or more of the partners are to be exempt
from any contribution to losses is likewise null.
Rights ,  powers and 
obligations of  
managing partner 
similar to those of 
a mandatary.
1669.    Unless it has been otherwise agreed or unless it is
otherwise provided in this Code, the rights, powers and obligations
of any partner charged with the management of the partnership are
governed by the provisions relating to the rights, powers and
obligations of a mandatary.
Powers of 
managing partner.
1670. (1) The partner having the management of the
partnership under a special covenant in the contract of partnership
may, notwithstanding the opposition of the other partners, perform
all such acts as appertain to the management with which he is
charged, provided he acts without fraud.
(2) Such power may not be revoked without sufficient cause
during the continuance of the partnership; but if such power has
been given by any instrument subsequent to the contract of
partnership it is revocable in the same manner as an ordinary
mandate.
Where several 
partners are 
charged with 
management.
1671.    Where several partners are charged with the management
of the partnership, without their respective duties being specified,
or without it being stated that one of them cannot act without the
other, each of them may perform separately all acts appertaining to
such management.
Joint management. 1672.    Where it has been stipulated that one of the managing
partners cannot do anything without the other, one of them alone
cannot act without the other without a new agreement, even though
the latter be in the actual impossibility of taking part in the acts of
management, unless the matter is urgent and such that if the act is
omitted a serious and irreparable loss to the partnership might
ensue.
Rules as to 
management ,  in 
the absence of 
agreement.
1673.    In the absence of special stipulations as to the mode of
management, the following rules shall be observed:
( a ) the partners are presumed to have mutually given to
each other the power to manage, the one for the other;
and whatever is performed by each of them is valid
even as regards the shares of the other partners,
although their consent shall not have been obtained;
( b ) if the partners are not more than two, each of them
may oppose the transaction before it is concluded,
saving the right of the other partner to demand the
dissolution of the partnership, together with damages,
where the opposition is vexatious, or contrary to the
object of the partnership, or otherwise seriously
prejudicial to the interests of the partnership; 
     CIVIL CODE            ġ CAP. 16.             293
( c ) if the partners are more than two, in case of
opposition, the opinion of the majority will prevail,
regard being had to the number of all the partners, or,
where the decision takes place at a meeting fixed by
agreement, or at a meeting at which all the partners
shall have been requested to attend, to the number of
the partners present at the meeting:
   Provided that where the decision of the majority is
vexatious, or contrary to the object of the partnership,
or calculated to give execution to acts not naturally
included in the object of the partnership, or otherwise
seriously prejudicial to the interests of the partnership,
it shall be lawful for the dissenting partner to demand
the dissolution of the partnership, together with
damages;
( d ) each partner may make use of the things belonging to
the partnership, provided he uses them for the purpose
for which by custom they are intended, and does not
use them against the interests of the partnership, or in
such a manner as to prevent his partners from using
them according to their rights;
( e ) each partner has the right to compel the other partners
to bear with him the expenses which are necessary for
the preservation of the property of the partnership;
( f ) one of the partners cannot make any alterations in the
immovable property of the partnership, even though he
claims that such alterations are advantageous to the
partnership, unless the other partners consent thereto.
Non-managing 
partner may not 
alienate property.
1674.    A partner who is not a manager cannot alienate or
encumber the partnership property, even though such property be
movable.
Admission of other 
partners.
1675.    Each partner may, without the consent of his other
partners, associate with himself a third party in his share in the
partnership; but he cannot, without their consent, introduce such
third party into the partnership, even if he has the management
thereof.
Sub-title III
O F THE  O BLIGATIONS OF  P ARTNERS TOWARDS  T HIRD  P ARTIES
Partners not liable 
jointly and 
severally for 
partnership debts.
1676.    The partners are not jointly and severally liable for the
partnership debts; and one of the partners cannot bind the others,
unless they have given him power to that effect.
Liability of 
partners having 
unequal shares in 
partnership.
1677.    The partners are liable to the creditors with whom they
have contracted, each one for an equal sum and share, even if the
share of  one of them in the partnership is smaller, unless the
contract has expressly limited the liability of the latter in
294               CAP.16. ħ                CIVIL CODE
proportion to his share.
Where obligation 
is contracted on 
account of the 
partnership.
1678. (1) A stipulation to the effect that an obligation is
contracted on account of the partnership, binds only the contracting
partner and not the others, unless the latter have given him
authority to do so or unless the matter has benefited the
partnership.
(2) A   partner contracting in his own name does not bind his
other partners, even though the matter has benefited the
partnership, saving any action competent to the persons contracting
with him, under the provisions of article 1143.
Sub-title IV
O F THE  D ISSOLUTION OF  P ARTNERSHIP
How partnership 
terminates.
1679.    A   partnership terminates - 
( a ) by the expiration of the time for which it was entered
into;
( b ) by the extinction of the partnership property, or by the
completion of the undertaking for which it was entered
into;
( c ) by the death of any partner;
( d ) by the inhibition, whether general or special, of any
one of the partners from entering into contracts, or by
his insolvency or bankruptcy;
( e ) by the declaration of any one of the partners that he
does not wish to continue the partnership.
Loss of thing 
promised.
1680. (1) Where one of the partners has promised to bring into
the partnership the ownership of a thing and such thing perishes
before the partnership has acquired the ownership thereof, the
partnership is dissolved with respect to all the partners.
(2) The partnership, however, is not dissolved, if the loss of the
thing happens after the partnership has acquired the ownership
thereof.
Loss of thing the 
enjoyment whereof 
has been promised.
1681.    Where one of the partners has promised to bring into the
partnership the enjoyment of a thing, the loss of the thing produces
the dissolution of the partnership, even though the loss happens
after the partnership has commenced to enjoy the thing.
Agreement to 
continue 
partnership in case 
of death of any one 
of the partners.
1682. (1) It may be stipulated that in case of the death of one
of the partners, the partnership shall continue with his heir, or only
between the surviving partners.
(2) In the latter case, the heir of the deceased is only entitled to
a partition of the partnership property having regard to the state of
the partnership at the time of the partner’s death, and he shall not
be entitled to participate in any subsequent right, except in so far as
     CIVIL CODE            ġ CAP. 16.             295
such right is the necessary consequence of transactions made
before the death of the partner from whom he inherits.
Dissolution by 
renunciation.
1683.    The dissolution of a partnership at the will of one of the
partners may only take place if the partnership is entered into for an
undefined time, and it is effected by a renunciation, notice whereof
is given to all the other partners, provided such renunciation is
made in good faith and not at an inopportune moment.
When renunciation 
is not in good 
faith ,  etc.
1684. (1) A   renunciation is not in good faith, when the partner
renounces for the purpose of appropriating to himself alone the
profits which the partners expected to earn jointly.
(2) It is made at an inopportune moment, when things are no
longer in their entirety, and the interest of the partnership requires
that its dissolution be postponed.
Agreement 
precluding 
dissolution of 
partnership entered 
into for an 
undefined time ,  is 
void.
1685.    Any agreement whereby any one of the partners is
deprived of the power to demand the dissolution of a partnership
entered into for an undefined time, is void.
Validity of 
agreement to 
prevent 
dissolution.
1686.    Nevertheless, an agreement is valid whereby the partners
reserve to themselves the power to oppose the dissolution
demanded by any of them, by releasing him from all his
engagements towards the partnership or towards third parties, and
paying to him a fixed sum, or the amount of his shares, if the
partnership is divided into shares.
Dissolution of 
partnership entered 
into for a limited 
time.
1687.    The dissolution of a partnership entered into for a fixed
time cannot be demanded before the expiration of such time, unless
there be a just cause, such as when one of the partners fails to fulfil
his engagements, or a habitual infirmity unfits him for the business
of the partnership, or other similar causes the justness and
importance of which are left to the discretion of the court.
Rules for partition.
also applicable to partitions between partners, and to the effects
thereof.
Title  XI
O F THE  C ONSTITUTION OF  A NNUITIES
Constitution of 
annuity.
1689.    An annuity, or a yearly payment in money or in goods,
may be stipulated by the assignment of a movable or an immovable
thing or by the payment of a sum of money of which the payer
binds himself not to claim the return.
Instrument creating 
annuity.
1690.    A   contract creating an annuity is null if it is not made in
writing, or, where an immovable thing is assigned, if it is not made
by a public deed.
296               CAP.16. ħ                CIVIL CODE
Effects of 
assignment of an 
immovable.
1691.    The assignment of an immovable thing as provided in
article 1689 conveys to the assignee the ownership of the thing
assigned notwithstanding any stipulation to the contrary, even that
whereby the ownership is reserved, saving always the provisions of
article 996.
Kinds of annuities. 1692.    An annuity may be perpetual or for life.
Laws relating to 
rents  ad formam 
bullae.
1693.    The laws relating to the so called rents  ad formam bullae
are repealed, except in regard to those constituted previously to the
14th August, 1862.
Sub-title 1
O F  P ERPETUAL  A NNUITIES
Definition of land 
annuity and simple 
annuity. 
1694. (1) A perpetual annuity constituted as the consideration
of an alienation or as a burden on an assignment of an immovable,
whether under an onerous or a gratuitous title, is called a land
annuity.
(2) An annuity constituted by the payment of a sum of money
or other movable thing, is called a simple annuity.
Rate of annuity. 1695.    An annuity constituted by the payment of a sum of money
cannot exceed four per cent  per annum  on   the sum paid.
Redemption of 
perpetual annuity.  
Amended by: 
I.1870.3.
1696. (1) A perpetual annuity is of its essence redeemable at
any time, at the will of the debtor, notwithstanding any agreement
to the contrary, saving the proviso to article 1701.
(2) It shall, however, be lawful for the creditor to stipulate that
the annuity shall not be redeemed during his life, or before the
lapse of a definite time which cannot exceed twenty years, in the
case of land annuities, or ten years, in the case of simple annuities,
to be reckoned from the date of the constitution of the annuity.
(3) If a longer period of time is agreed upon, it shall be reduced
to the one or the other of the said times, as the case may be. 
Redemption of 
simple annuity 
created in 
consideration of a 
sum of money ,  etc.
1697. (1) The redemption of a simple annuity constituted in
consideration of the payment of a sum of money is effected by the
reimbursement of an equal sum.
(2) If the annuity was constituted in consideration of other
movable things the value of which was stated in the contract, the
redemption is effected by the reimbursement of a sum equal to such
value.
Redemption of 
land annuity ,  etc.  
Amended by: 
I.1870.4 , 5.
1698. (1) The redemption is effected by the reimbursement of
the sum resulting on capitalizing the annuity at the rate of three per
cent, in case of a land annuity, or, at the rate of four per cent, in
each of the following cases:
( a ) in the case of a simple annuity constituted in
consideration of movable things the value of which has
     CIVIL CODE            ġ CAP. 16.             297
not been stated in the contract;
( b ) if the annuity has been created by a will, donation or
other instrument which does not clearly show what
was given for the constitution of the annuity.
(2) Nevertheless, if the annuity has been constituted for the
purpose of creating an ecclesiastical benefice or a sacred
patrimony, or of being employed for pious uses, or for the relief of
the poor, or in reward for virtue or merit, or for any other purpose
of public utility, the redemption is, in every case, effected by the
reimbursement of the sum resulting on capitalizing the annuity at
the rate of two per cent.
When debtor may 
be compelled to 
redeem annuity.
1699.    Saving the cases expressly stated in the contract, the
debtor of a perpetual annuity may be compelled to redeem it -  
( a ) if he fails to give to the creditor the security promised
in the contract;
( b ) if, in the event of failure of the security given, he does
not give fresh security equally sufficient;
( c ) if he fails for three years to pay the annuity, or if,
notwithstanding that he made part-payments in each
year, he remains a debtor in a sum equal in amount to
three yearly payments;
( d ) if he has become bankrupt or insolvent, or his
condition has been so altered that the continuance of
the payment of the annuity is endangered.
Court may grant 
time.
1700. (1) In the cases mentioned in paragraphs   ( a ),   ( b ) and ( c )
of the last preceding article, the court may grant to the debtor a
reasonable time within which to give the security promised, or to
substitute other security for that which has failed, or to pay the
annuity fallen due, and thus release himself from the obligation of
redeeming the annuity.
(2) Such time cannot exceed the period of two months which
may, for just cause, be extended to a further period of two months
only.
(3) The provisions of article 1520 shall also, in the cases
provided for in this article, apply to any other creditor of the
debtor, and to any other party interested.
Applicability of 
ss.1696 to 1700. 
Amended by: 
I.1870.6.
1701. (1) The provisions of articles 1696 to 1700 shall also
apply to any other yearly payment in perpetuity constituted under
any title, even if by a will or donation, saving the provisions
relating to emphyteusis.
(2) They shall also apply to annuities or other yearly payments
constituted before the 11th February, 1870:
  Provided that the redemption of an annuity or other yearly
payment lawfully constituted, whether before or after the 11th
February, 1870, for the purpose of creating an ecclesiastical
benefice or a sacred patrimony, or of being employed for pious
uses, cannot be effected without the consent of the competent
298               CAP.16. ħ                CIVIL CODE
ecclesiastical authority.
Sub-title II
O F  L IFE  A NNUITIES
Constitution of life 
annuity.
1702.    A life annuity may be constituted either for the life of the
person who furnishes the money or other thing, or for the life of the
debtor or of a third party having no right to the annuity.
Annuity may be 
constituted for life 
of one or more 
persons ,
1703.    It may be constituted for the life of one or more persons.
or in favour of a 
third party.
1704.    It may also be constituted in favour of a third party,
although the price of it has been paid by another person.
Annuity for life of 
person dead at the 
time of contract ,  is 
inoperative.
1705.    A   contract for an annuity for the life of a person who was
dead at the time of the contract, is inoperative.
Rate of interest. 1706.    A   life annuity may be constituted at any rate of interest
the parties choose to fix.
When grantee may 
demand dissolution 
of contract. 
1707.    The person in whose favour a life annuity has been
constituted for a price, may demand the dissolution of the contract
if the grantor does not furnish to him the security stipulated for its
execution.
Rights of grantee. 1708.    The mere default of payment of the annual sums fallen
due does not entitle the grantee of the life annuity to demand the
repayment of the capital, or to recover the thing alienated: he is
only entitled to demand payment of the arrears, and a security for
future payments.
Grantor may not 
demand dissolution 
of contract.
1709.    The grantor cannot release himself from the payment of
the annuity by offering to reimburse the capital and by waiving all
claims to the repayment of the annual sums paid by him: he is
bound to pay the annuity during the whole life of the person or
persons for whose life the annuity has been constituted, whatever
may be the duration of the life of such person or persons, and
however burdensome the payment of the annuity may have become.
How annuity is 
payable.
1710. (1) A life annuity is due to the payee in proportion to the
number of days the person for whose life the annuity was
constituted, has lived.
(2) Nevertheless, if it has been stipulated that the annuity is to
be paid in advance, the whole instalment already paid in advance or
which should have been so paid is acquired from the day on which
the payment became due.
When not subject 
to attachment.
1711. (1) It cannot be stipulated that a life annuity shall not be
subject to attachment in pursuance of a garnishee order, unless it is
created under a gratuitous title, whether by an act  inter vivos  or   by
     CIVIL CODE            ġ CAP. 16.             299
a will.
(2) Where the annuity is so created under a gratuitous title, it
may be stipulated that it cannot be alienated or sold.
Payee to prove 
existence of person 
for whose life 
annuity is 
constituted.
1712.    The payee of a life annuity cannot claim the annual sums,
unless he proves the existence of the person for whose life it has
been constituted.
Title  XII
O F  G AMING AND  B ETTING
No action lies for 
the recovery of 
gaming debts.
1713. (1) The law grants no action for a gaming debt, or for
the payment of a bet.
(2) Nor does it grant any action -
( a ) for the recovery of any sum lent by any person who
knew that such sum was intended for gaming;
( b ) for the recovery of any sum lent by any person
interested in the game, for the payment of money lost
at such game.
Exceptions.
arms, foot-races, horse-races, boat-races, ball-games and other
games of the same kind which develop the dexterity and exercise of
the body, are excepted from the provisions of the last preceding
article.
(2) Nevertheless, the court may reduce the sum claimed when it
appears to it to be excessive.
Agreement to 
defeat foregoing 
provisions is void.
1715.    Any agreement made for the purpose of defeating the
provisions of the last two preceding articles, is void.
Recovery of 
money lost at 
gaming.
1716.    The loser at a game, not included in those mentioned in
article 1714 may recover from the winner the sum or thing which
he has already paid to him, provided he shall, by means of a
judicial act, within two months to be reckoned from the day of
payment, call upon the winner to return the sum or thing so paid.
Recovery of 
money paid for 
lottery.
1717.    Any person who has made any payment in Malta in
connection with a lottery set up in Malta or in other countries, may
recover the sum paid by him from the person to whom the payment
was made, although the latter was only an agent of some other
person; unless the lottery was authorised or permitted by the
competent authority in Malta.
Certain contracts 
not to be deemed 
as gaming and bet-
ting.
Added by:
XXII. 2000.101.
1717A. No debt or other obligation arising under any contract of
differences, interest cap agreement, swap, foreign currency
exchange or other similar agreement the purpose or intended
purpose of which is to secure a profit or avoid a loss (by reference
to fluctuations in the value or price of property of any description
or in an index or other factor designated for such purpose in the
300               CAP.16. ħ                CIVIL CODE
contract) shall be void or unenforceable by reason of the provisions
of this Title or of any other law related to gaming or betting.
Title  XIII
O F  C OMPROMISE
Definition of 
contract of 
compromise.
1718.    A compromise is a contract whereby the parties, by means
of a thing given, promised or retained, put an end to a lawsuit
which has commenced or prevent a lawsuit which is about to
commence.
When compromise 
is to be made by 
public deed.
1719. (1) Where the subject-matter of the lawsuit to which the
parties wish to put an end or which they wish to prevent is
immovable property, the compromise is null, if not made by a
public deed.
(2) The same rule shall apply where, in order to compromise,
an immovable thing is given or promised.
Persons who can 
make compromise.
1720.    No person may make a compromise unless he is a person
capable of alienating the things included in the compromise.
Compromise 
between spouses.
1721.    A compromise between the spouses without the authority
of the competent court, is null, except in the cases where, according
to the provisions of article 1366, a contract of sale may be validly
made between them.
Compromise 
affecting property 
subject to entail ,  
etc.
1722.    Any compromise regarding property subject to entail, or
regarding future maintenance, whether bequeathed by a will or
acquired by donation or other contract, or ordered by the court, or
due by law, is also null, if made without the authority of the
competent court.
Authority of court. 1723. (1) Where for the validity of a compromise the authority
of the court is requisite, such authority shall, if the lawsuit, or the
hearing of the lawsuit has not yet commenced, be granted, if
expedient, by the court of voluntary jurisdiction.
(2) If the hearing of the lawsuit has commenced, the authority
may be granted either by the said court, or by the court before
which the lawsuit is pending.
Effect of penalty 
clause.
1724. (1) A penalty clause stipulated in a contract of
compromise against the party who fails to fulfil the compromise,
shall be in lieu of compensation for any damage caused by delay,
without prejudice to the obligation to fulfil the compromise, saving
the provisions of article 1119 in case the contract is annulled.
(2) If the contract of compromise is impeached on the ground
of nullity, the payment of the penalty is suspended, pending the
suit.
(3) The provisions of this article shall apply to arbitration
agreements which contain a penalty clause.
     CIVIL CODE            ġ CAP. 16.             301
Effects of 
compromise.
1725.    A compromise shall not extend beyond the subject-matter
thereof: a renunciation in a contract of compromise of all rights,
actions, and claims, applies only to what relates to the controversy
which has given rise to such compromise.
Compromise 
settles only 
differences which 
the parties had in 
view.
1726.    A compromise shall only settle the controversies which
the parties had in view, whether such parties have expressed their
intention in special or general terms, or whether such intention
appears as a necessary consequence of what has been expressed.
Where person 
making a 
compromise as to a 
right ,  acquires 
thereafter a similar 
right.
1727.    If a person who has made a compromise as to a right
belonging to him acquires thereafter a similar right from another
person, he is not bound by the compromise previously made, with
respect to the right newly acquired.
Compromise made 
by one of several 
interested parties.
1728.    A   compromise made by one of several interested parties
does not bind the others, nor may it be set up by them.
Compromise 
equivalent to  res 
judicata .
1729. (1) A   compromise shall have as between the parties the
effect of   a  res judicata.
(2) It cannot be set aside on the ground of an error of law.
When compromise 
may be set aside.
1730. (1) Nevertheless, a compromise may be set aside, where
there has been an error as to the person with whom the contract was
made, or as to the matter of the controversy which the parties
intended to compromise.
(2) It may be set aside in all cases where there has been fraud
or violence.
Error of fact.
error of fact it has been made in execution of a title which was null,
unless the parties have expressly taken such nullity into account.
False documents.
subsequently found to be false, is wholly void.
Compromise 
respecting suit 
terminated by 
judgement.
1733. (1) A   compromise of a suit determined by a judgment
which has become a  res judicata ,   of which the parties or one of
them had no knowledge, is also void.
(2) If the judgment of which the parties had no knowledge is
one from which there could still be an appeal, the compromise shall
be valid.
Discovery of 
documents 
subsequent to 
compromise.
1734. (1) Where the parties have made a general compromise
regarding all outstanding matters between them, the documents
which were unknown to them or which have been subsequently
discovered, shall not be a good ground for rescission, unless they
had been concealed through the act of one of the parties.
(2) The compromise, however, shall be void if it only referred
to a single thing and it is shown by the documents subsequently
discovered that one of the parties had no right on such thing.
Errors of 
calculation.
1735.    Each of the parties has a right to demand the correction of
any error of calculation incurred in a compromise.
302               CAP.16. ħ                CIVIL CODE
Compromise 
concerning an 
inheritance.
1736.    A   compromise concerning an inheritance depending upon
a will which is not known, is void.
Title  XIV
O F  D ONATION
G ENERAL  P ROVISIONS
Definition of 
donation.
1737. (1) The law allows only donations  inter vivos .
(2) A donation  inter vivos  is a contract whereby the donor
irrevocably and gratuitously transfers a thing to the donee who
accepts it.
(3) A donation in which the donor reserves to himself the
power to revoke or alter the donation itself, is void, except in the
cases expressly provided in this Code.
Gifts made out of 
gratitude.
1738.    A   gift made out of gratitude, or in consideration of the
merits of the donee, or as a special remuneration for services for
which the donee had no right of action, as well as that to which
some burden on the donee is attached, is likewise a donation,
saving the provisions of the next following article.
Remuneratory 
donations.
1739.    If the donation is made in remuneration for services for
which the donee had a right of action, the special rules relating to
donations shall not apply, except when the value of the thing given
exceeds, by at least one-half, the value of such services, and in
regard only to such excess.
Onerous donations. 1740.    Nor shall the special rules relating to donations apply to
an onerous donation, except when the value of the thing given
exceeds, by at least one-half, the value of the burden imposed on
the donee, and in regard only to such excess.
Donation may only 
include present 
property.
1741. (1) A   donation may only include the present property of
the donor.
(2) If it includes future property, it shall be null with regard to
such property.
(3) The provisions of this article shall not apply to the
donations mentioned in Sub-titles IV and V of this Title.
Ecclesiastical 
benefices ,  etc. ,  to 
be governed by 
canon law. 
Added by: 
V.1920.2.
1742.    Saving any other special law in Malta, any ecclesiastical
benefice, or perpetual ecclesiastical chaplaincy, or perpetual sacred
patrimony or patrimonial subsidy, shall, as regards both the
exercise, enjoyment, extinguishment or loss of the right of
advowson, whether active or passive, as well as the terms and
conditions required in order that they may constitute a title for
ordination or be availed of for such purpose, be governed by the
canon law for the time being in force in Malta:
   Provided that nothing in this article shall affect any right
competent to and exercised by the Government with regard to any
     CIVIL CODE            ġ CAP. 16.             303
benefice, chaplaincy, sacred patrimony or patrimonial subsidy.
Sub-title I
O F THE  C APACITY TO DISPOSE OR RECEIVE BY  D ONATION
Persons capable of 
disposing or 
receiving by 
donation.  
Amended by: 
LVIII.1975.10. 
Cap. 201.
1743.    Saving the provisions of the Mortmain Act, all persons
can dispose of or receive property by donation, except those who
are in this Title declared to be incapable.
Persons incapable 
of making a 
donation.  
Amended by: 
XLVI.1973.87.
1744.    The following persons are incapable of making a
donation:
( a ) those who, according to the provisions of paragraphs
( a ), ( b ), ( c ) and ( d ) of article 597, are incapable of
making a will;
( b ) any person interdicted on the ground of prodigality,
unless authorized to make a donation by the court
which had ordered his interdiction;
( c ) a minor, except by a marriage contract as provided in
article 1807.
Nullity of 
donation ,  although 
disability of donor 
ceases before 
execution.
1745.    A donation made by a person who is incapable of making
a donation is null, even though the incapacity of the donor has
ceased previous to the time in which the donation is to be carried
into execution.
Persons incapable 
of receiving by 
donation.
1746. (1) Those who, at the time of the donation, or at the time
of the happening of the suspensive condition attached to a
donation, were not yet conceived, are incapable of receiving by
donation.
(2) The provisions of this article shall not apply with regard to
the immediate children of a stated person who is alive at the time of
the donation, nor with regard to persons called to the enjoyment of
any foundation.
Born not viable.
receiving by donation.
(2) In case of doubt, those who are born alive shall be
presumed to be viable.
Persons who 
cannot receive by 
donation more than 
can be left to them 
under a will.
Amended by:
XXI.1962.18.
1748.    The following persons cannot receive by donation more
than can be left to them under a will, as provided in articles 602,
603, 604 and 611:
( a ) the illegitimate children of the donor;
( b ) the husband or wife of the donor;
( c ) the children of the donor, born of a second or
subsequent marriage and the adopted children of the
304               CAP.16. ħ                CIVIL CODE
donor;
( d ) members of monastic orders and of religious
corporations of regulars, after taking the vows in the
religious order or corporation.
Applicability of 
s.609.
1749.    The provisions of article 609 respecting the incapacity of
a tutor or curator, shall apply to donations.
Disguised 
donations.
1750.    A donation made in favour of a person who is incapable
of receiving by donation, as provided in the foregoing articles, is
null, in whole or in part, according to the extent of the incapacity,
even though it is disguised under the form of an onerous contract,
or made in the name of intermediaries.
Intermediaries. 1751. (1) The father and mother, the children and descendants,
and the husband or wife of the person who is incapable of
receiving, as the case may be, are considered to be intermediaries.
(2) The provisions of this article shall not apply to the parents
of the persons mentioned in paragraph ( d )   of article 1748.
Donation made to 
notary receiving 
deed ,  etc.
1752.    A donation made to the notary by whom the deed of
donation was received, or to his spouse, or to any person related to
him by consanguinity or affinity to the third degree inclusively,
may be annulled on the demand of the donor or of his heirs, so long
as such donation has not been carried into execution.
Sub-title II
O F THE  F ORM AND  E FFECTS OF  D ONATIONS
Donations to be 
made by public 
deed.
1753. (1) A donation is null, if not made by a public deed. 
(2) The provisions of sub-article (1) of this article, however,
shall not apply to -
( a ) manual gifts of money or of other movable corporeal
things, or of documents to bearer, when the sum or
value thereof is moderate, regard being had to the
condition of the persons and to other circumstances;
( b ) any gratuitous renunciation of rights or assignment of
debts or negotiable securities, or to any remission of
debts or any stipulation made in favour of third parties
in any of the cases referred to in articles 999, 1000 and
1704:
   Provided that, as regards the form of any such
renunciation, assignment, remission or stipulation, the
provisions of the said articles or of any other law shall
be observed, notwithstanding that such provisions
relate to onerous agreements.
When donation is 
binding on donor.
1754. (1) A   donation shall not bind the donor and shall not be
operative except as from the day on which it is expressly or tacitly
     CIVIL CODE            ġ CAP. 16.             305
accepted by the donee.
(2) The acceptance of a donation of immovable things is null,
unless it is made in the deed of donation or by any other public
deed.
Time for 
acceptance of 
donation.
1755.    The donee may validly accept the donation at any time
during the life of the donor so long as the latter has not revoked it.
When acceptance 
may be made after 
donor’s death.
1756. (1) An acceptance made after the death of the donor
shall be ineffectual, except in the following cases:
( a ) when the donor has reserved to himself, during his
lifetime, the use or usufruct of the thing given;
( b ) when the donation is to be carried into execution after
the death of the donor;
( c ) when the donor dies within three months from the day
of the donation.
(2) In each of the aforesaid cases, the donee may, until the
expiration of a time to be fixed by the court upon the demand of
any interested party, validly accept the donation which has not been
revoked by the donor; such time may not exceed one month, but
may for just cause be extended by the court to another month.
Acceptance by 
heirs or creditors of 
donee.
1757.    An acceptance made by the heirs or the creditors of the
donee has no effect.
Donation to minor. 
Amended by: 
XLVI.1973.90; 
XXI.1993.2.
1758. (1) A   donation made to a minor may be accepted in his
behalf by his father or mother, as well as by any of his paternal or
maternal ascendants even though his parents are living.
(2) If the donation is made by one of the parents or by an
ascendant of the minor, it may be accepted in his behalf by the
other parent or any other ascendant.
(3) Where, however, the minor is subject to parental authority,
no person, other than the parent exercising parental authority, may
accept the donation on behalf of the minor except with the authority
of the court.
(4) If the donation is made by both parents of the minor, the
court may authorise the minor himself to accept it or appoint a
person to accept it in his behalf.
Donation to an 
illegitimate child.
1759.    The provisions of the last preceding article shall also
apply with regard to the father and mother of an illegitimate child
acknowledged in the deed of acceptance itself or by any other
instrument, or legitimated by a decree of the court.
Donation to person 
under tutorship or 
curatorship.
1760.    A   donation made to a person who, by reason of age or for
other cause, is subject to tutorship or curatorship, may not be
accepted except by the tutor or curator, with the authority of the
court.
Annulment of 
donation for want 
of authority. 
1761.    In the cases referred to in the last three preceding articles,
the donation may not be annulled for want of the authority therein
mentioned, except upon the demand of the donee; and such demand
306               CAP.16. ħ                CIVIL CODE
may not be made after the expiration of two years from the day on
which the donee attains his majority or ceases to be subject to
tutorship or curatorship.
When special 
curator may be 
appointed.
1762. (1) Where in the cases referred to in articles 1758, 1759
and 1760 the parent, the legitimate ascendant, or the tutor or
curator neglects or without just cause refuses to accept the
donation, the court shall, upon the demand of any person, appoint a
special curator for the purpose.
(2) The same shall apply where the person making the demand
declares on oath that he does not know whether the minor has any
parent or legitimate ascendant alive or that he does not know where
any such parent or ascendant is to be found, and the court is of
opinion that the donation is advantageous to the minor.
When minor 
himself may accept 
donation.  
Amended by: 
XXI.1993.2.
1763.   A minor who is not subject to parental authority nor
provided with a curator, may validly accept a donation if he has
completed the age of fourteen years; saving the action of rescission
which may be competent to him under article 971.
Duty of person 
who accepts on 
behalf of another. 
Amended by: 
XLVI.1973.91.  
1764. (1) The person who has lawfully accepted a donation on
behalf of another person is bound to cause such donation to be
registered, where required, in the Public Registry according to and
for the purposes of the provisions of article 996.
(2) Such registration, however, may also be made upon the
demand of the notary by whom the deed of donation or acceptance
was received, or upon the demand of the donee, whoever he may
be, and even without any authority.
Restitutio in 
integrum.  
Amended by: 
XLVI.1973.92.
1765. (1) A   minor or any other person, being a donee, shall not
be reinstated in case of non-acceptance or non-registration of the
donation; saving any right of relief to which the donee may be
entitled according to law against the person who was bound to
accept the donation in his behalf or to cause it to be registered.
(2) Such reinstatement shall not be granted even though the
person so bound is insolvent.
Donation in 
contemplation of 
marriage may not 
be impeached for 
non-acceptance.
1766.    A   donation made in contemplation of a certain and
determinate marriage, and prior to such marriage, whether by the
future spouses to each other or by any other person in favour of the
future spouses and of the children to be born of their marriage, may
not be impeached on the ground of non-acceptance.
Donations between 
husband and wife ,  
during marriage.
1767.    The provisions of the last preceding article shall also
apply with regard to donations between husband and wife, during
marriage.
Donation on 
condition of 
restoration of gift 
in the event of 
donor having 
children.
1768.    Notwithstanding the provisions of article 1056, a donation
made on condition that the donee shall restore the thing given, in
the event of the donor having children by a marriage contracted
either before or after the donation, is valid.
Debts of donor. 1769.    The donee is not bound to pay the debts of the donor
unless required to do so by the terms of the donation; saving in
favour of the creditors the action referred to in article 1144, and the
     CIVIL CODE            ġ CAP. 16.             307
hypothecary action, where competent.
Donation subject to 
condition of 
payment of debts.
1770. (1) A   donation made subject to the condition of the
payment of debts or burdens existing at the time of the donation, or
of future debts or burdens the causes whereof, however, are
specified in the deed of donation or in a note annexed thereto, is
valid.
(2) A   donation, however, made subject to the condition of the
payment of other future debts or burdens, is null.
Limitation of 
donee’s liability. 
1771.    In any of the cases referred to in sub-article (1) of the last
preceding article, if the amount of the debts or burdens has not been
also stated in the deed or note aforesaid, the donee is not liable
beyond the value of the thing given, unless he has expressly bound
himself to pay such debts or burdens whatever their amount may
prove to be.
Presumptive 
condition.
1772.    A   donation, however, of all present property or of a part
of all present property, unless a contrary intention appears from the
deed of donation, is presumed to have been made with the
reservation of deducting therefrom, before the release or delivery
of the property, the amount of the debts of the donor, existing at the
time of the donation, either wholly or in proportion to the part
given according as to whether the donation includes all the property
or only a part thereof:
  Provided that such deduction cannot be claimed after the
delivery or the release of the property has taken place; saving the
right of the creditors to any of the actions mentioned in article
1769.
Maintenance of 
donor.
1773. (1) The donee is bound to supply maintenance to the
donor who has become indigent, to the extent of the fruits of the
thing given, provided the donee is in possession of the thing given
or the value thereof and is not himself in a state of indigence.
(2) If the thing given is in the possession of the donee but
yields no fruits, the obligation aforesaid shall be limited to the
extent of the interest on the value of the thing itself as fixed by a
valuation.
(3) If the donees are two or more, the prior donee is bound as
aforesaid, only where the amount which the subsequent donee is
bound to supply is not sufficient for the maintenance of the donor.
(4) The provisions of this article shall apply even if there are
persons related to the donor by consanguinity or affinity who are
bound and in a position to supply maintenance to him.
Reservation of 
power of 
disposing.
1774.    If the donor has reserved to himself the power to dispose
of a thing included in the donation or of a specified sum out of the
property given, and dies without having disposed of the same, such
thing or sum shall belong to the donee, unless a contrary
declaration has been expressly made in the deed of donation, or
unless the donee has prevented the donor from disposing of such
thing or sum.
308               CAP.16. ħ                CIVIL CODE
Vesting of thing 
excluded from 
donation.
1775.    If the donor has excluded a thing from the donation, in
order to dispose of it, and does not dispose of such thing either
inter vivos  or by will, it shall vest in the heirs of the donor, unless
the donor himself has expressly declared in the deed of donation
that such thing shall vest in the donee if he dies without having
disposed of it.
Prohibition of 
entails in 
donations.
1776.    Entails are forbidden in donations as in wills; and the
provisions of articles 331, 736 and 757 to 761 shall apply to
donations.
Reservation of 
usufruct.
1777.    It shall be lawful for the donor to reserve to himself the
usufruct of the thing given.
Donation of 
movable things 
with reservation of 
usufruct.
1778.    Where a donation of movable things has been made with
the reservation of usufruct, the donee shall, upon the cessation of
the usufruct, have against the donor or his heirs the same rights as
are granted to the owner under the provisions of Title III of Part I
of Book Second of this Code for the restoration of such things.
Stipulation of 
reversion. 
Amended by: 
XXXIX.1939.10. 
1779. (1) The donor may stipulate that the things given shall
revert to himself or his heirs, in case of the decease of the donee
without issue at any time.
(2) He may also stipulate the reversion of the things given in
case of the predecease of the donee alone or in case of the
predecease of the donee and his descendants:
  Provided that such stipulation can only be made in favour of the
donor alone.
Effects of 
reversion.
1780.    When the reversion takes place, any alienation of the
property given is dissolved, and such property reverts to the donor
free from any burden or hypothec, with the exception of the
hypothec registered in security of the dowry and the dower of the
wife of the donee, if his other property is insufficient for that
purpose, and the donation was made to him in the same marriage
contract by which the dowry was constituted or the dower
promised.
Where donation 
with stipulation of 
reversion is made 
in favour of two or 
more persons.
1781.    If a donation containing a stipulation of reversion is made
in favour of two or more persons, the condition shall, in case of the
predecease of one of such persons or of his descendants, according
to the cases mentioned in article 1779, be deemed to have happened
with regard to the portion of the party deceased, and the provisions
of the last preceding article shall apply with regard to such portion.
Warranty by 
donor.
1782.    The donor is not bound to warrant the donee against
eviction in respect of the things given except in any of the
following cases:
( a ) if the donation has been made in contemplation of
marriage or for the constitution of a sacred patrimony;
( b ) if the donor has expressly promised warranty;
( c ) if eviction takes place in consequence of debts for
which the donor himself is personally liable;
( d ) if the donor has given a thing belonging to another
person, in bad faith and with the object of inducing the
     CIVIL CODE            ġ CAP. 16.             309
donee to give, or to do or not to do any thing;
( e ) if, by the donation, burdens that may be estimated in
money have been imposed on the donee, or if the
donation has been made in remuneration for services
that may be estimated in money for which the donee
had a right of action: in which case the donor is bound
to give warranty up to the value of such burdens or
services.
Extent of warranty.
( d )   of the last preceding article, the donee cannot claim from the
donor more than the value which the thing given had at the time of
the donation; unless, in the case referred to in paragraph ( d ), the
donee has suffered damage to an amount greater than the value of
the thing given, in which case the effects of the warranty shall
extend to such amount.
(2) In the case referred to in paragraph ( e ) of the last preceding
article, the donee can claim from the donor a sum corresponding to
the value of the burdens discharged or of the services rendered,
whatever such value may be.
Easements or 
burdens.
1784.    The donor is not bound to free the thing given from any
easement or other burden to which it is subject, saving the right of
the donee who has accepted the donation without being aware of
the existence of such easement or burden to renounce the thing
given within one year from the day on which he became aware of
the existence of such easement or burden.
Sub-title III
O F THE  E XCEPTIONS TO THE  R ULE OF  I RREVOCABILITY OF 
D ONATIONS
Causes of 
revocation of 
donation.
1785.    A donation can only be revoked in virtue of a resolutive
condition, express or implied, according to the provisions of
articles 1066, 1067, 1068 and 1069, or for ingratitude.
Revocation in 
virtue of resolutive 
condition.
1786.    In case of revocation in virtue of a resolutive condition,
the property reverts to the donor free from all burdens or hypothecs
imposed by the donee; and the donor shall have against third parties
in possession of the immovables given all the rights which he
would have against the donee himself.
Revocation for 
ingratitude.
1787.    A   donation cannot be revoked for ingratitude except in
any of the following cases:
( a ) if the donee has attempted to take the life of the donor
or has been guilty towards him of cruelty or grievous
injury;
( b ) if the donee has wilfully, and with intent to cause
injury to the donor, considerably damaged his
property, or prejudiced his interests;
310               CAP.16. ħ                CIVIL CODE
( c ) if, the donor being in urgent need of maintenance or
other personal assistance, the donee has refused him
such support as without great inconvenience to himself
he could have given him.
Revocation for 
ingratitude never 
takes place  ipso 
jure . 
1788.    The revocation of a donation for ingratitude shall never
take place  ipso jure.
Renunciation of 
right to revoke a 
donation for 
ingratitude is null.
1789.    A   renunciation of the right to revoke a donation for
ingratitude is null if made prior to the happening of the event which
gives rise to the exercise of such right.
Time within which 
action for 
revocation may be 
brought.
1790. (1) The demand for revocation on the ground of
ingratitude can only be made within one year from the day of the
offence with which the donee has been charged by the donor, or
from the day on which the donor could have become aware of such
offence.
(2) Revocation on such ground cannot be demanded by the
donor against the heirs of the donee, nor by the heirs of the donor
against the donee, unless, in the latter case, the action had been
commenced by the donor himself, or unless he died within a year
from the day of the offence.
Revocation does 
not affect 
alienations ,  etc.
1791. (1) Revocation on the ground of ingratitude shall not
affect any alienation made by the donee, nor any hypothec or other
burden with which he may have charged the property given,
previously to the judicial demand for revocation.
(2) The donee, however, is bound to restore to the donor the
value of the things alienated, having regard to the time of the
aforesaid demand, together with the fruits from the day of such
demand, and to indemnify the donor for any hypothec or other
burden with which he may have charged the property not alienated.
Donations in 
contemplation of 
marriage not 
subject to 
revocation for 
ingratitude.
1792. (1) Donations in contemplation of marriage are not
subject to revocation on the ground of ingratitude.
(2) The provisions of this article shall not apply to donations
made by one of the future spouses to the other.
Sub-title IV
OF  D ONATIONS IN  C ONTEMPLATION OF  M ARRIAGE
Donations of 
present property 
subject to general 
rules.
1793.    Donations of present property only, although made in
contemplation of marriage, are, in the absence of any provision to
the contrary, subject to the rules laid down in this Title relating to
donations in general.
Donations of 
property to be left 
on donor’s death.
1794.    Any person not being under a legal disability may, in
contemplation of a certain and determinate marriage, but before
such marriage, dispose of the whole or of a part of the property
     CIVIL CODE            ġ CAP. 16.             311
which he may leave at the time of his death, in favour of the future
spouses or one of them as well as in favour of the children to be
born of their marriage.
Extent of 
irrevocability of 
such donations.
1795. (1) The donation referred to in the last preceding article
is irrevocable in this sense only, that the donor can no longer
dispose, under a gratuitous title, of the things included in the
donation, except as regards small sums by way of remuneration or
otherwise, unless he has reserved to himself a more ample power of
disposing.
(2) The donor, however, shall be at liberty, up to the time of his
death, to dispose under an onerous title of the things included in the
donation; and any renunciation of such power is null.
Donations of 
present and future 
property.
1796.    A   donation in contemplation of a certain and determinate
marriage, in favour of the future spouses or of one of them, or of
their children, may be made of both present and future property,
either wholly or in part, provided a description of the property and
of the debts and burdens of the donor existing at the time of the
donation, is annexed to the deed of donation; in which case the
donee shall be at liberty, at the time of the death of the donor, to
retain for himself the property existing at the time of the donation,
subject to the obligation of discharging only the debts and burdens
existing at such time, renouncing his right to the remainder of the
property of the donor.
Where description 
is not annexed to 
deed of donation.
1797. (1) If the description mentioned in the last preceding
article has not been annexed to the deed of donation of present and
future property, the donee shall be bound to accept or renounce the
donation in its entirety.
(2) In case of acceptance, he can only claim the property
existing at the time of the donor’s death, and shall be bound to
discharge all the hereditary debts and burdens up to the value of
such property.
Presumption that 
property is 
sufficient to 
discharge debts. 
Cap. 12.
1798.    The property vesting in the donee by a donation made in
terms of article 1794 or in the case mentioned in the last preceding
article, shall be presumed to be sufficient for the discharge of the
hereditary debts or burdens, if the donee, before taking possession
of such property, has not made up an inventory in the manner
provided in the Code of Organization and Civil Procedure, saving
always any proof to the contrary.
When donee 
cannot demand 
execution of 
donation.
1799. (1) As regards the donations referred to in articles 1794
and 1796, the donee cannot, during the life of the donor, demand
that the donation be carried into execution with regard to any part
of the property included therein.
(2) By any such donation, the ownership of the property shall
not vest in the donee except at the death of the donor.
(3) Nevertheless, where the donation was made in terms of
article 1796 and, at the death of the donor, the donee wishes to
avail himself of the power, granted to him in that article, to retain
for himself the property existing at the time of the donation subject
to the obligation of discharging only the debts and burdens existing
312               CAP.16. ħ                CIVIL CODE
at that time, the donee shall be entitled to demand the dissolution of
any alienation, even if made under an onerous title, which the
donor may have made of immovables included in that property, and
of any hypothec or other burden with which the donor himself may
have charged such immovables, provided the donation was
registered in accordance with the provisions of article 996.
Where donor 
survives donee.
1800. (1) The donations referred to in articles 1794 and 1796
shall lapse, if the donor survives the donee and his descendants
from the marriage in contemplation of which the donation was
made.
(2) Where the children and descendants are excluded from the
donation, such donation shall lapse if the donor survives the donee.
Presumption in 
favour of children.
1801. (1) The aforesaid donations, although made in favour of
the future spouses or one of them, shall always, in the event of the
survival of the donor, be presumed to have been made in favour of
the children and descendants to be born of the marriage in
contemplation of which such donations were made, unless such
children and descendants were excluded by the deed of donation.
(2) The provisions of this article shall also apply in favour of
children born before the donation, and legitimated by the marriage
in contemplation of which the donation was made.
Marriage presents. 1802.    Presents which relations or friends of one of the future
spouses give to the other in contemplation of marriage shall be
deemed to have been given to the former, notwithstanding that in
making such presents words were used implying a donation in
favour of the latter, unless, independently of such words, it is
proved that the intention of the donor was that of giving such things
to the future spouse to whom he has delivered them.
Donation lapses if 
marriage does not 
take place ,  etc.
1803. (1) Any donation or promise made in contemplation of
marriage shall lapse if the marriage does not take place.
(2) Any donation made by way of a sacred patrimony shall
lapse, if the donee fails to take holy orders within five years from
the day on which he shall have attained the age at which he could
be admitted to such orders.
Sub-title V
O F  D ONATIONS BETWEEN  F UTURE  S POUSES OR BETWEEN 
H USBAND AND  W IFE ,  EITHER BY THE  M ARRIAGE  C ONTRACT 
OR DURING THE  M ARRIAGE
Donations between 
future spouses. 
Amended by: 
XLVI.1973.93.
1804.    The future spouses may, in their marriage contract, make
to each other reciprocally or the one to the other, donations under
the conditions hereinafter mentioned.
Where donor has 
children.
1805.    A person having legitimate children or descendants, or
children or descendants legitimated by subsequent marriage, or
     CIVIL CODE            ġ CAP. 16.             313
adopted children or their descendants legitimate or legitimated as
aforesaid, cannot give to his future spouse in contemplation of
marriage more than a husband or wife having such children or
descendants can bequeath to the other spouse under a will
according to the provisions of article 604.
Presumption of 
condition of 
survival.
1806.    Any donation of present property, or of present and future
property, or of such property as the donor may leave at the time of
his death, shall, in all cases, even if it is reciprocal, be presumed to
have been made subject to the condition of the survival of the
donee, unless an express stipulation to the contrary is made; and in
every other respect such donation shall be subject to the foregoing
rules relating to donations made in favour of the future spouses by
other persons.
Minors.
Amended by: 
XLVI.1973.94.
1807.    A   minor cannot in a marriage contract make to his future
spouse any donation, whether reciprocal or not, without the consent
of the parent to whose authority he is subject or, if both parents are
dead or the parent aforesaid cannot give his consent, without the
authority of the court; but, with such consent or authority, a minor
may give all that one of the future spouses, being of age, may,
according to law, give to the other.
Presents by future 
spouses.
Amended by:
XXXI. 2002.212.
1808. (1) Presents given by one of the future spouses to the
other, on the occasion of marriage, shall, notwithstanding that in
delivering such presents words were used implying a donation,
remain the property of the former, and shall be deemed to have
been given to the latter for mere use, during marriage, unless a
donation of such things is proved by the marriage contract.
(2) Even such right of use of the said presents shall cease in the
event of separation on grounds imputable to the party who had
received such presents.
Where marriage 
does not take 
place.
1809. (1) Any donation made by the future spouses in
contemplation of marriage, or by the marriage contract, whether
reciprocally or by one to the other, shall lapse if the marriage does
not take place.
Cap. 5.
(2) The provisions of this article, however, shall not apply, and
the donee may retain the things given, if the marriage does not take
place by reason of the refusal of the donor without just cause to
contract such marriage; saving the right of the donee to claim
damages under the provisions of the Promises of Marriage Law.
Donations between 
husband and wife ,
1810. (1) Any donation made by the husband to the wife, or by
the wife to the husband, during the marriage, without the authority
of the court, is null, even if such donation is reciprocal or
remuneratory.
(2) If there be such authority, however, a husband may make to
his wife or a wife to her husband, a donation of present property, or
of present and future property, or of such property as the donor may
leave at the time of his death, subject to the provisions of article
1748; and to any such donation the provisions of article 1806 shall
apply.
314               CAP.16. ħ                CIVIL CODE
to relations of 
either.
1811.    Any donation made without the authority of the court by
one of the spouses to a person related to the other spouse by
consanguinity or affinity, is likewise null.
Gifts of small 
value. 
1812.    The authority of the court mentioned in the last two
preceding articles shall not be required with regard to presents or
manual gifts of small value, regard being had to the circumstances
of the donor, saving, however, the provisions of article 639.
Sub-title VI
O F THE  R EDUCTION OF  D ONATIONS
Reduction of 
donations 
exceeding 
disposable portion.
1813.    Donations of any kind, even if made in contemplation of
marriage to future spouses and to the children to be born of their
marriage, shall, if at the time of the opening of the succession of
the donor they are found to exceed the portion of property whereof
the donor, according to the rule laid down in article 614, could
dispose, be reduced to that portion.
Applicability of 
rules relating to 
reduction of 
testamentary 
dispositions
1814.    The rules laid down in article 621 and in article 647 and
the articles following, relating to the reduction of testamentary
dispositions, shall also be observed with regard to the reduction of
donations.
By whom 
reduction may be 
demanded.
1815.    The reduction of donations can only be demanded by
those for whose benefit the law has reserved a portion of the
property of the deceased, and by their heirs or other persons
claiming under them.
Right of 
demanding 
reduction may not 
be waived during 
donor’s life.
1816.    Saving the provisions of article 1240 the persons to whom
the law grants the right to demand the reduction of donations,
cannot waive such right during the lifetime of the donor, whether
by an express declaration or by consenting to such donations.
Donees ,  etc. ,  may 
not claim 
reduction.
1817.    Donees, legatees, or creditors of the deceased cannot
demand the reduction of donations or benefit by it.
No reduction of 
donations shall 
take place before 
property disposed 
of under will is 
exhausted.
1818.    No reduction of donations can take place until the value
of all the property disposed of under the will has been exhausted;
and when such reduction takes place, it shall be made commencing
with the last donation and so on successively, from the last to the
previous donations.
Restitution of 
things to be made 
in kind.
1819.    Any restitution of things under the provisions of the last
preceding article, shall be made in kind, saving the provisions of
article 653.
Restoration of 
fruits.
1820.    The donee shall restore the fruits of such part of the
donation as exceeds the disposable portion, from the day of the
opening of the succession of the donor, if the action for reduction
has been brought within the year; otherwise, from the day of the
demand.
     CIVIL CODE            ġ CAP. 16.             315
Immovable to be 
returned 
unencumbered.
1821.    The immovable property which is to be returned in
consequence of the reduction shall be free from any debt or
hypothec with which it may have been charged by the donee.
Action for 
reduction ,  etc. ,  
may be brought 
against third 
parties.
1822. (1) The action for reduction or for recovery may be
brought by the person to whom it is competent, against third parties
in possession of the immovable property forming part of the
donations and alienated by the donees, in the same manner and in
the same order as if against the donees themselves, but not until the
plaintiff has first discussed the donees.
(2) Such action shall be exercised according to the order of the
dates of the alienations, commencing with the last.
Limitation of 
action for 
reduction ,  etc.
1823. (1) The action for reduction or recovery, whether
against the donees or against third parties, shall be barred by
prescription on the lapse of five years to be reckoned from the day
of the opening of the succession.
(2) The aforesaid time shall also run against minors and
persons interdicted.
Title  XV
O F  L OAN FOR  US E OR  C OMMODATUM
Definition of 
commodatum.
1824.    Commodatum  or   loan for use, is a contract whereby one of
the parties delivers a thing to the other, to be used by him,
gratuitously, for a specified time or purpose, subject to the
obligation of the borrower to restore the thing itself.
Things which may 
be lent for use.
1825.    All things which are not  extra commercium  and which are
not consumed by use may form the subject of this contract.
Obligations 
transmissible to 
heirs.
1826.    The obligations undertaken in virtue of a loan for use
shall pass to the heirs of the lender and of the borrower:
   Provided that if the loan is made out of regard to the borrower,
and only to him personally, his heirs cannot continue to enjoy the
thing lent.
Duties of 
borrower.
1827. (1) The borrower is bound to take care of and preserve
the thing borrowed as a  bonus   paterfamilias.
(2) He cannot, under pain of paying damages, apply the thing
to any other use than that for which it is intended by its nature or by
agreement.
Borrower not liable 
for indemnity if 
thing perishes.
1828.    If the thing perishes by a fortuitous event, without the
fault of the borrower, the borrower is not liable for any indemnity.
Liability of 
borrower for 
wrong use or 
delay.
1829.    If the borrower uses the thing for another purpose or for a
longer time than he ought, he shall be answerable for the loss which
may occur even by a fortuitous event, unless he proves that the
thing would have equally perished if he had not used it for another
purpose, or had restored it at the time fixed in the contract.
316               CAP.16. ħ                CIVIL CODE
Where borrower 
could save the 
thing borrowed 
from perishing.
1830.    If the thing lent perishes by a fortuitous event from which
the borrower could have preserved it by making use of his own
thing instead of the thing borrowed, or if, being able to save only
one of the two things, he has preferred to save his own, he is
answerable for the loss of the other.
Effect of valuation 
of thing lent at time 
of loan.
1831.    A valuation of the thing, made at the time of the loan,
shall have no other effect except that of determining its value at
that time, in case the borrower should be answerable for any loss
which may occur; and the borrower shall not, merely because the
thing was appraised at the time of delivery, be answerable for any
loss resulting from a fortuitous event, unless it is otherwise shown
that an agreement to the contrary was made.
Deterioration 
without fault of 
borrower.
1832.    If the thing has deteriorated merely by the use for which it
was lent, and without fault of the borrower, the borrower is not
answerable for such deterioration.
Borrower may not 
recover expense 
for use of thing.
1833.    If in order to be able to make use of the thing lent, the
borrower has incurred any expense, he cannot claim the
reimbursement thereof.
Liability of several 
borrowers of same 
thing.
1834.    If several persons have borrowed the same thing together,
they are jointly and severally liable to the lender.
Restoration of 
thing to lender 
before expiration 
of time.
1835. (1) The lender cannot take back the thing until after the
expiration of the time agreed upon, or, in the absence of an
agreement, until it has served the purpose for which it was
borrowed.
(2) Nevertheless, if during the time agreed upon, or before the
borrower has ceased to need the thing, the lender happens to be in
pressing and unforeseen need of making use of the thing, the court
may, according to circumstances, compel the borrower to restore it
to him subject to the obligation of the lender to reimburse to the
borrower any expenses which the latter may have incurred to make
use of the thing.
Where 
extraordinary 
expenses have 
been incurred by 
borrower.
1836.    If, during the continuance of the loan, the borrower had to
incur, for the preservation of the thing, any extraordinary and
necessary expenses of so urgent a nature that he was unable to give
previous notice thereof to the lender, the latter shall be bound to
reimburse such expenses to him.
Liability of lender 
in case of defects 
in thing lent.
1837.    When the thing lent has defects that may cause injury to
the person making use of it, the lender is answerable for damages,
if he knew of such defects and did not warn the borrower.
Question as to 
whether contract is 
commodatum  or 
locatio et 
conductio.
1838. (1) If any question shall arise as to whether the loan of a
thing is by way of a loan for use, or by way of letting and hiring,
the person claiming a reward must prove his right thereto by
express or tacit agreement.
(2) A   tacit agreement may be inferred from the condition of the
parties, the quality of the thing, the prolonged use thereof and other
circumstances.
     CIVIL CODE            ġ CAP. 16.             317
Title  XVI
O F  P RECARIOUS  L OAN OR  P RECARIUM
Definition of 
precarium.
1839.    Precarious loan or  precarium  is the same contract of loan
for use defined in article 1824 with the only difference that the
lender has the power to take back the thing when he pleases.
Restitution on 
demand.
1840.    The borrower of a thing by way of  precarium  cannot
delay the restitution thereof, when demanded, on the ground of any
prejudice which he might sustain thereby:
  Provided that if it appears that the restitution is demanded with
intent to cause injury to the borrower, the court shall have power to
grant him time for such restitution.
Applicability of 
rules relating to 
commodatum .
1841.    Saving the provisions of the last two preceding articles,
the rules laid down with regard to the contract of loan for use, shall
apply to the contract of precarious loan.
Title  XVII
L OAN FOR  C ONSUMPTION OR  M UTUUM
Definition of 
mutuum.
1842.    Mutuum  or   loan for consumption is a contract whereby
one of the parties delivers to the other a certain quantity of things
which are consumed by use subject to the obligation of the
borrower to return to the lender as much of the same kind and
quality.
Effect of loan on 
borrower.
1843.    In virtue of such a loan, the borrower becomes the owner
of the thing lent, and the loss of such thing falls upon him, in
whatever manner it may have occurred.
Liability resulting 
from loan of 
money.
1844. (1) The liability resulting from a loan of money is, in all
cases, for the same numerical sum stated in the contract.
(2) Notwithstanding any agreement to the contrary, if any
change occurs in the monetary system before the expiration of the
time for payment, the debtor is only bound to return the numerical
sum which was lent to him, in coins according to their legal value
at the time of payment.
Restitution in 
determinate 
species of coin.
1845.    It may be stipulated that the restitution shall be made in a
determinate species of coin; and in any such case restitution shall
be made in the manner agreed upon, provided that if at the time of
payment no such coins can be found or they are put out of
circulation, the borrower shall be bound to return the sum to the
lender in current coin, and to pay damages, if any.
Loan of ingots or 
goods.
1846.    Where the loan is of ingots or goods, the debtor is, in all
cases, bound to return the same quantity and quality, whatever may
be the rise or fall in their price.
318               CAP.16. ħ                CIVIL CODE
Applicability of 
s.1837.
1847.    The provisions of article 1837 shall also apply to
mutuum.
Where borrower 
cannot return 
things in the same 
quantity and 
quality. 
1848. (1) If it is not possible for the borrower, without serious
prejudice, to return the things borrowed in the same quantity and
quality at the time agreed upon, he is obliged to pay the value
thereof, regard being had to the time and place at which they were
to be returned.
(2) If the time and place have not been fixed, the payment shall
be made according to the current price at the time and place at
which the loan was made.
Interest not due 
unless agreed 
upon.
1849.    No interest is due in respect of  mutuum  unless agreed
upon, saving the provisions of articles 1139 and 1140 where the
borrower does not return the things borrowed at the time agreed
upon, or at the time which, in the absence of an agreement, is fixed
by the court.
Stipulation for 
interest.
1850. (1) It shall be lawful to stipulate for interest on a loan,
whether of money or of goods or other movable things.
(2) It shall also be lawful to convert into a new capital at
interest, the amount of interest due, provided such interest be not
due for a time less than one year.
(3) Any other agreement for payment of interest on interest, is
null.
Payment of interest 
not agreed upon.
1851. (1) The borrower who has paid interest which was not
agreed upon, can neither claim it back nor deduct it from the
capital, except in so far as such interest exceeds the rate fixed in the
next following article.
(2) Nevertheless, the interest paid on any amount of interest
due for a time less than one year, may be claimed back or deducted
from the capital, even though the interest so paid does not exceed
the said rate.
Rate of interest.  
Amended by: 
XXXIX.1961.2; 
LIV.1974.9; 
VI.1983.5; 
IX.1992.2.
1852. (1) The rate of interest cannot exceed eight per cent  per
annum.
(2) Any higher interest agreed upon shall be reduced to the said
rate.
(3) If a higher interest than that fixed by law has been paid, the
excess shall be deducted from the capital.
(4) * Where a loan is made by a bank licensed under the Banking
Act, or a loan is raised at any time after lst July, 1982, by the issue
of bonds, debentures or other securities, and a rate of interest
higher than eight per cent  per annum  has been fixed by order made
under article 22 of the said Act and applicable to such loan or, with
respect to a loan made or raised as aforesaid, a rate of interest
higher than eight per cent has been approved by the Minister
* The Banking Act  ( Cap. 215 )  has been repealed by the Banking Act ,  1994 ,  and the
new Act does not contain a provision similar to article 22 of the old Act.   See  also
article 38 of the Central Bank of Malta Act  ( Cap.204. ) .
     CIVIL CODE            ġ CAP. 16.             319
responsible for finance specifically in respect of that loan, the
foregoing provisions of this article shall apply to such loan, to the
extent and for such time and subject to such conditions as such
higher rate of interest is applicable or approved as aforesaid, as if
the rate of interest fixed or approved as aforesaid were the
maximum rate of interest chargeable in accordance with sub-article
(1) of this article.
Cap. 233.
(5) Notwithstanding anything contained in the foregoing
provisions of this article, or in any other provision of law, but
without prejudice to the provisions of the Exchange Control Act,
where an obligation to pay interest at a rate higher than eight per
cent  per annum  arises under the law of a country other than Malta,
or is regulated by such a law, in accordance with market conditions,
prevailing in such other country or with international market
conditions, and the amount is denominated and payable in a foreign
currency, such higher rate of interest shall for all intents and
purposes be recognized as valid and be enforceable in Malta.
Contracts made in 
evasion of last 
preceding article.
1853.    Any contract, whatever its designation, made in evasion
of the provisions of the last preceding article, is subject to
rescission; and in any such case, if the things given cannot be
returned, the creditor can only demand the payment of their value
at the time when he delivered them to the debtor.
Where rate of 
interest is not 
agreed upon.
1854.    If the borrower has bound himself to pay interest without
fixing the rate, interest shall be at the rate of five per cent  per
annum.
Acquittance for 
capital without 
reservation as to 
interest. 
1855.    An   acquittance for the capital, given without any
reservation as to the interest, creates a presumption of the payment
of the interest, and operates as a discharge thereof, saving any
proof to the contrary.
Debts secured by 
mortgage of ship.
Added by:
XXII.2000.101.
Cap. 234.
1855A. (1) The provisions of this Title or of any other part of
this Code or of any other law in so far as they limit or restrict the
charging of interest and compound interest shall not apply to debts
or other obligations secured by a mortgage registered or recognised
under the Merchant Shipping Act; and it shall be lawful for the
amount of interest due in respect of any such debt or other
obligation to exceed the amount of capital due in respect of any
such debt or other obligation.
(2) The Minister responsible for finance may, with the advice
of the Central Bank of Malta, by order extend the provisions of
subarticle (1) to such other debts and obligations as he may deem
fit, subject to such conditions as he may in such order establish, and
may in like manner from time to time, amend, revoke or substitute
any order so made.
320               CAP.16. ħ                CIVIL CODE
Title  XVIII
O F  M ANDATE
Sub-title I
O F THE  N ATURE AND  F ORM OF  M ANDATE
Definition of 
contract of 
mandate.
1856. (1) Mandate or procuration is a contract whereby a
person gives to another the power to do something for him.
(2) The contract is not perfected until the mandatary has
accepted the mandate.
Object of mandate. 1857. (1) Every mandate must have for its object something
lawful which the mandator might have done himself.
(2) Subject to any other special provision of the law, a mandate
can be granted by a public deed, by a private writing, by letter, or
verbally, or even tacitly.
Acceptance by 
mandatary.
1858.    The acceptance on the part of the mandatary may also be
tacit, and may be inferred from acts.
Consequences in 
case of default of 
mandatary to 
acquaint mandator 
of refusal.
1859.    Any person carrying on trade or exercising a profession
who, without just cause, fails to give notice to the mandator,
without delay, of his refusal to accept a mandate relating to
commercial or to professional business, as the case may be, is
answerable to the mandator for damages occasioned by the delay.
Name of 
mandatary in 
blank.
1860.    If a mandate is granted by a private writing, the name of
the mandatary may be left in blank; in which case, so long as the
name is not written, the bearer of the writing or of the instrument or
procuration shall be deemed to be the mandatary.
When mandate is 
gratuitous.
1861.    Mandate is gratuitous, unless there is a stipulation to the
contrary.
Mandate is special 
or general.
1862.    Mandate is either special, if it is for one matter or for
certain matters, only; or general, if it is for all the affairs of the
mandator.
Mandate in general 
terms.
1863. (1) A mandate made out in general terms applies only to
acts of administration.
(2) The power to make alienations of property, except such
alienations as fall within the limits of the administration, or to
hypothecate property or to perform other acts of ownership, must
be expressed.
Powers of 
mandatary.
1864.    A mandatary cannot do anything beyond the limits of the
mandate.
Acts which the 
mandatary may 
perform.
1865. (1) For the carrying out of the mandate, the mandatary
may institute legal proceedings; make and prosecute appeals; make
proof by reference to the oath of his adversary; take the oath  in
     CIVIL CODE            ġ CAP. 16.             321
litem  or   the suppletory oath; enforce judgments both on movable
and immovable property; make demand for the issue of
precautionary acts including those for the issue of which an
application or declaration on oath is required; make demand for the
personal arrest of the debtor of the mandator, where such demand is
competent; and do any other thing which the mandator might do
personally, notwithstanding that such powers have not been
expressly given in the mandate.
(2) The mandatary may also, in virtue of the said powers, be a
defendant on behalf of the mandator, in any law-suit concerning the
matter included in the mandate.
When mandatary 
may not sue or be 
sued.  
Cap. 12.
1866.    A mandatary, however, may not sue or be sued, on behalf
of the mandator, although the latter shall have given him authority
to do so, when the mandator himself is not absent from the Island in
which the action is to be tried, saving the provisions of article 786
of the Code of Organization and Civil Procedure.
Other powers of 
mandatary.
1867. (1) The express power to compromise does not include
the power to submit to arbitration or  vice versa .
(2) The power to receive includes the power to give
acquittance. 
(3) The power to sell includes the power to receive the price. 
General powers.
ordinary course of his profession or calling, without any express
limitation of power, such person shall be presumed to have been
given power to do all that which he thinks to be necessary for the
carrying out of the mandate, and which, according to the nature of
the profession or calling aforesaid, may be done by him.
Minors may be 
mandataries.  
Substituted by: 
XLVI.1973.96
1869.    Minors may be appointed mandataries; but in any such
case the mandator cannot maintain an action against the mandatary
except in accordance with the general rules relating to the
obligations of minors.
Power of 
mandator.
1870.    The mandator can, for the execution of a contract, act
directly against the person with whom the mandatary in his
capacity as such has contracted.
Where mandatary 
acts in his own 
name.
1871. (1) When the mandatary has acted in his own name, the
mandator cannot maintain an action against those with whom the
mandatary has contracted, nor the latter against the mandator.
(2) In any such case, however, the mandatary is directly bound
towards the person with whom he has contracted as if the matter
were his own.
Saving. 
Cap. 13.
1872.    The provisions of this Code shall not affect the provisions
of the Commercial Code, or of any other special law or other
usages of trade.
322               CAP.16. ħ                CIVIL CODE
Sub-title II
O F THE  O BLIGATIONS OF THE  M ANDATARY
Duties of 
mandatary.
1873. (1) A mandatary is bound to carry out the mandate so
long as he is vested therewith, and in case of non-performance he is
answerable for damages and interest.
(2) He is also bound to conclude any matter, which he may
have commenced before the death of the mandator, if delay might
be prejudicial.
Liability of 
mandatary.
1874. (1) A mandatary is answerable not only for fraud, but
also for negligence in carrying out the mandate.
(2) Nevertheless, such liability in respect of negligence is
enforced less rigorously against a person whose mandate is
gratuitous than against one receiving a remuneration.
Duty of mandatary 
to render account.
1875.    The mandatary, unless expressly exempted by the
mandator, is bound to render to the latter an account of his
management and of everything he has received by virtue of the
mandate, even if what he has received was not due to the mandator.
Mandatary cannot 
delegate his 
authority.
1876. (1) The mandatary cannot substitute another person for
himself, if he has not been empowered to do so by the mandator. 
(2) If such power has been conferred upon him but without
naming the person to be substituted, the mandatary is answerable
for the person he has substituted if he has selected a person
notoriously incompetent or insolvent or whom he otherwise knew
to be such.
(3) In all cases, the mandator may act directly against the
person whom the mandatary has substituted.
Where several 
mandataries are 
appointed by the 
same instrument.
1877. (1) Where there are several attorneys or mandataries
appointed by the same instrument, there is no joint and several
liability between them, unless it be expressly so agreed.
(2) Each of such mandataries may validly carry out the
mandate independently of the consent of the other mandataries or
notwithstanding their opposition, unless the mandator has expressly
ordered that one shall not act without the other, or has otherwise
expressly specified their duties.
(3) The limitation of powers of each of the aforesaid
mandataries may not be set up against third parties, unless such
limitation appears from the instrument of procuration, or unless it
is shown that such third parties have otherwise had sufficient
knowledge of such limitation.
Liability of 
mandatary for 
interest on sums 
applied to his own 
use ,  etc.
1878.    A mandatary owes interest on the sums which, without the
authority of the mandator, he has applied to his own use, from the
day on which he has made such use, and on any other sum in which
he shall remain debtor, from the day on which he is put in default,
saving, in both the aforesaid cases, the usages of trade.
     CIVIL CODE            ġ CAP. 16.             323
Mandatary is not 
personally liable 
towards party con-
tracting with him 
as such.
1879.    A   mandatary who has given to the party with whom he
has contracted in such capacity sufficient information as to his
powers, is not liable for any warranty in respect of what he has
done beyond such powers, unless he has personally bound himself
thereto.
Sub-title III
O F THE  O BLIGATIONS OF THE  M ANDATOR
Liability of 
mandator 
1880. (1) A mandator is bound to carry out the obligations
contracted by the mandatary in accordance with the powers which
he has given him.
(2) He is not liable for what the mandatary has done beyond
such powers, unless he has expressly or tacitly ratified it.
towards mandatary
advances and expenses made or incurred by him in carrying out the
mandate; and he must pay him the remuneration if promised to him,
or if it is presumed to have been tacitly agreed upon, regard being
had to the profession of the mandatary and to other circumstances.
(2) If no negligence be imputable to the mandatary, the
mandator cannot refuse to make such reimbursement and payment,
even though the matter has not been successful; nor can he have the
amount of such expenses and advances  bona fide  incurred or made,
reduced, on the ground that they might have been less.
for losses
losses he has sustained by reason of the mandate, where no
negligence is imputable to him.
for interest on 
advances and 
expenses.
1883.    Interest is due by the mandator to the mandatary on the
advances and expenses mentioned in article 1881 from the day of
the payment of such sums.
Where the 
mandators are two 
or more ,  they are 
jointly and 
severally liable 
towards 
mandatary.
1884.    Where the mandatary has been appointed by several
persons for a common business, each of them is jointly and
severally liable towards him for all the consequences resulting from
the mandate.
Right of retention 
competent to 
mandatary.
1885.    The mandatary shall have the right of retention, so long as
he is not paid what is due to him in consequence of the mandate.
Sub-title IV
O F THE WAYS IN WHICH  M ANDATE IS  T ERMINATED.
324               CAP.16. ħ                CIVIL CODE
Termination of 
mandate.
1886.    Mandate is terminated -
( a ) by the revocation of the procuration;
( b ) by the death, the interdiction or the incapacitation,
whether general or special, from entering into
contracts, the declaration of bankruptcy, or the  cessio
bonorum  either of the mandator or of the mandatary;
( c ) by the termination of the powers of the mandator;
( d ) by the expiration of the time during which the mandate
was to continue;
( e ) by the renunciation on the part of the mandatary.
Revocation of 
mandate.
1887. (1) The mandator may revoke the mandate whenever he
chooses.
(2) The appointment of a new mandatary for the same business
is equivalent to a revocation of the mandate given to the previous
one, even though the new mandatary does not accept the mandate.
(3) A general mandate does not produce the revocation of a
special mandate previously given, unless the business contemplated
in the special mandate is expressly included in the general mandate.
Termination of 
mandate does not 
affect third parties 
not knowing of 
such termination.
1888. (1) The existence of any of the causes for which a
mandate is terminated cannot be set up against third parties who,
having no knowledge of such cause, have contracted with the
mandatary; saving the right of the mandator to seek relief against
the mandatary, where competent.
(2) Nor may the existence of any such cause be set up against
the mandatary, if at the time of acting he also had no knowledge
thereof.
Renunciation of 
mandate.
1889. (1) A mandatary may renounce the mandate by giving
notice of his renunciation to the mandator.
(2) Nevertheless, if the renunciation is prejudicial to the
mandator, he must be compensated by the mandatary, unless it is
impossible for the latter to continue to carry out the mandate
without suffering himself considerable prejudice.
Duty of heirs of 
deceased 
mandatary.
1890.    In case of the death of the mandatary, his heirs must, if
they know that he was a mandatary, give notice thereof to the
mandator, and attend, in the meantime, to what is required in the
interest of the latter, as circumstances may demand.
Title  XIX
O F  D EPOSIT
Definition of 
deposit.
1891.    Deposit, in general, is a contract whereby a person
receives a thing belonging to another person subject to the
obligation of preserving it and of returning it in kind.
     CIVIL CODE            ġ CAP. 16.             325
Sub-title I
O F  D EPOSIT PROPERLY SO CALLED
Nature of deposit 
properly so called.
1892. (1) Deposit properly so called is a gratuitous contract,
saving any stipulation to the contrary.
(2) Only movable things can be the subject of such deposit.
How deposit is 
perfected.
1893. (1) A   deposit is only perfected by the delivery of the
thing to the depositary.
(2) The delivery is effected by the consent alone, if the thing is
already in the hands of the depositary by any other title and it is
agreed that it is to remain in his hands as a deposit.
When depositary 
may make use of 
thing deposited.
1894.    A   deposit of money or of other things which are
consumed by use, is regulated by the laws relating to loan   for
consumption or  mutuum , whenever power has been granted to the
depositary to make use of the thing deposited on the sole condition
of returning as much of the same kind and quality.
Voluntary or 
necessary deposit.
1895.    Deposit is voluntary or necessary.
§  I. O F  V OLUNTARY  D EPOSIT
Nature of 
voluntary deposit.
1896.    A voluntary deposit takes place by the mutual consent of
the person who makes the deposit and of the person who receives
the thing on deposit.
Between whom 
voluntary deposit 
can take place.
1897. (1) A voluntary deposit can only take place between
persons who are capable of contracting.
(2) Nevertheless, if a person capable of contracting accepts a
deposit made by a person who is incapable, the former is bound by
all the obligations of a true depositary.
Voluntary deposit 
made by a person 
capable to one who 
is not.
1898.    If the deposit has been made by a person who is capable
of contracting to another who is not, the person who has made the
deposit cannot but claim the recovery of the thing deposited so long
as it exists in the hands of the depositary, or bring an action for
restitution to the extent of the benefit accruing in favour of the
latter.
O F THE  O BLIGATIONS OF THE  D EPOSITARY
Diligence to be 
used by depositary.
1899.    A depositary must, for the custody of the thing deposited,
use the same diligence which he uses for the custody of his own
things.
Cases where a 
higher degree of 
diligence is 
required.
1900. (1) The provisions of the last preceding article shall be
applied more rigorously - 
( a ) if the depositary has himself offered to receive the
326               CAP.16. ħ                CIVIL CODE
deposit;
( b ) if he has stipulated for a reward for the custody of the
deposit;
( c ) if the deposit has been made solely in the interest of
the depositary;
( d ) if it has been expressly agreed that the depositary shall
be answerable for every kind of negligence.
(2) In each of the cases referred to in paragraphs   ( a ),   ( b ) and   ( c )
of sub-article (1) of this article, the provisions of sub-article (1) of
article 1132 shall apply; and in the case referred to in paragraph ( d )
of the same sub-article, the depositary shall be liable even for the
slightest negligence.
Depositary not 
answerable for 
casual misfortunes 
or loss.
1901.    A   depositary is in no case answerable for accidents
resulting from irresistible force, unless he has been put in default
for delay in restoring the thing deposited; nor shall he be
answerable, in the latter case, if the thing would have equally
perished in the possession of the depositor.
He cannot make 
use of thing 
deposited.
1902.    The depositary cannot make use of the thing deposited
without the express or implied consent of the depositor.
He shall not 
attempt to discover 
what are the things 
deposited. 
1903.    He shall not attempt to discover what are the things which
have been deposited with him, if they have been entrusted to him in
a closed box or under a sealed cover.
Restoration of 
thing deposited ,
1904. (1) The depositary must restore the identical thing
which he has received, in the condition in which it may be at the
time of its restitution.
(2) Any deterioration which occurs through no fault of the
depositary, shall be borne by the depositor.
or of thing received 
in its place.
1905.    A depositary from whom the thing deposited has been
taken away by irresistible force, and who has received a sum of
money or some other thing in its place, must restore what he has
received.
Duties of heir of 
depositary.
1906.    The heir of the depositary who has sold in good faith a
thing which he did not know to be a deposit, is only bound to return
the price which he has received, or to assign his right of action
against the buyer if the price has not been paid to him.
Where thing 
deposited has 
produced fruits.
1907.    If the thing deposited has produced fruits which have
been collected by the depositary, he is obliged to restore them.
To whom 
restoration is to be 
made.
1908.    The depositary must restore the thing deposited only to
the person who has entrusted it to him, or to the person in whose
name the deposit has been made, or to the person who has been
appointed to receive back the thing.
Depositary may 
not require 
depositor to prove 
ownership of thing.
1909. (1) The depositary cannot require the depositor to prove
that he is the owner of the thing deposited.
(2) Nevertheless, if the depositary discovers that the thing has
been lost or stolen, he must inform the person from whom it was
     CIVIL CODE            ġ CAP. 16.             327
stolen, or who lost it, of the deposit which has been made with him,
allowing him a sufficient time to claim such deposit. If the person
so informed fails to claim the deposit within the said time, the
depositary is released by delivering the deposit to the person from
whom he has received it.
When depositor 
dies ,  thing is to be 
restored to heir.
1910.    In case of death of the depositor, the thing deposited can
only be restored to his heir.
Where there are 
several heirs.
1911.    If there are several heirs, or if otherwise the thing
deposited belongs to several persons the depositary may not restore
the thing except with the concurrence of all of them, unless the
share of each is determined.
Where status of 
depositor has 
changed.  
Amended by: 
XLVI.1973.97.
1912.    If the status of the person who has made the deposit has
changed, as for instance, if a person of age who made the deposit
has been interdicted, in all such and similar cases, the depositary
who knows of such change of status, cannot restore the deposit
except to the person who has the administration of the rights and
property of the depositor.
Where deposit is 
made by tutor ,  etc.
1913.    If the deposit has been made by a tutor or curator, or by a
husband or an administrator, in any of such capacities, it cannot be
restored except to the person whom such tutor, curator, husband or
administrator represented, if their administration has terminated
and the depositary knows of such termination.
Where restitution 
of deposit is to be 
made.
1914. (1) The restitution of the deposit must be made at the
place where the thing deposited exists. If another place has been
specified in the contract, the depositary is bound to take the thing
to such place.
(2) The expenses of removal shall be borne by the depositor. 
Time for 
restitution.
1915.    The deposit must be restored to the depositor as soon as
he demands it, even though the contract has fixed a time for the
restitution, unless there is opposition to its restitution, by a
garnishee order or a judicial demand.
Rights of 
depositary.
1916. (1) The depositary may compel the depositor to
withdraw the deposit.
(2) He cannot, however, without just cause, compel him to
withdraw the deposit before the time agreed upon.
Obligations of 
depositary to 
cease ,  if he is the 
owner of the 
deposit.
1917.    All the obligations of the depositary cease, if he discovers
and proves that he himself is the owner of the thing deposited.
O F THE  O BLIGATIONS OF THE  D EPOSITOR
Reimbursement of 
expenses incurred 
by depositary.
1918.    The depositor is bound to reimburse to the depositary the
expenses which the latter has incurred for the preservation of the
thing deposited and to make good to him all the losses which the
deposit may have occasioned him.
328               CAP.16. ħ                CIVIL CODE
Depositary may 
retain deposit until 
reimbursement of 
expenses.
1919.    The depositary may retain the deposit until full payment
of what is due to him by reason of such deposit.
§  II. O F  N ECESSARY  D EPOSIT
Nature of 
necessary deposit.
1920.    A necessary deposit is that which a person is compelled to
make owing to some calamity, as, for instance, in case of a fire,
destruction, pillage, shipwreck or other unforeseen emergency.
Applicability of 
provisions relating 
to voluntary 
deposit.
1921.    All other provisions relating to voluntary deposit shall
also apply to necessary deposit.
Sub-title II
O F  C ONVENTIONAL  S EQUESTRATION
Nature of 
conventional 
sequestration.
1922. (1) Conventional sequestration is the deposit of a thing
in dispute made in the hands of a third party who binds himself to
restore it, after the controversy is terminated, to the person to
whom the thing shall be declared to belong.
(2) The subject of a conventional sequestration may be
movable as well as immovable property.
Release of 
sequestrator.
1923.    The sequestrator cannot be released before the
controversy is terminated, except with the consent of the persons
who have entrusted the thing to him, or for a just cause.
Applicability of 
provisions relating 
to voluntary 
deposit.
1924.    The provisions relating to voluntary deposit shall apply to
conventional sequestration.
Title  XX
O F    S URETYSHIP
Sub-title I
O F THE  N ATURE AND  E XTENT OF  S URETYSHIP
Definition of 
contract of 
suretyship.
1925.   Suretyship is a contract whereby a person binds himself
towards the creditor to satisfy the obligation of another person, if
the latter fails to satisfy it himself.
     CIVIL CODE            ġ CAP. 16.             329
Suretyship to be 
only in respect of a 
valid obligation. 
Amended by: 
XLVI.1973.98.
1926. (1) Suretyship can only exist in respect of a valid
obligation.
(2) Nevertheless, suretyship may be contracted for an
obligation which can be annulled on some plea personal to the
debtor, as for instance, that of disability arising from minority or
interdiction.
Suretyship cannot 
exceed debt.
1927. (1) Suretyship cannot exceed what is due by the debtor,
nor be contracted under more onerous conditions.
(2) It may be contracted for a part only of the debt, and under
less onerous conditions.
(3) The suretyship which exceeds the debt or is contracted
under more onerous conditions shall only be valid to the extent of
the principal obligation.
Any person may 
become surety 
without knowledge 
of debtor.
1928. (1) Any person may become surety without the request
and even without the knowledge of the party for whom he binds
himself.
(2) A person may also become surety, not only for the principal
debtor, but also for his surety.
Suretyship cannot 
be presumed.
1929.    Suretyship cannot be presumed, it must be expressed; and
it cannot be extended beyond the limits within which it has been
contracted.
Suretyship in 
general terms.
1930. (1) A suretyship contracted for a principal obligation, in
general terms, extends to all accessories of the debt.
(2) It also extends to the expenses necessarily incurred for
obtaining payment provided the creditor, before commencing the
proceedings giving rise to such expenses, gives notice thereof to
the surety, by means of a judicial act.
(3) The expenses of such act are included in the expenses to
which the suretyship extends.
Qualifications of 
surety.
1931.    A debtor who is obliged to produce a surety must offer a
person who is capable of entering into contracts, who has sufficient
property to answer for the subject-matter of the obligation, and
whose domicile is in Malta.
Where surety 
becomes insolvent.
1932. (1) When a surety accepted by the creditor, whether
voluntarily or by order of the court, afterwards becomes insolvent,
the debtor must produce another.
(2)  An exception to this rule is made only where the surety has
been given in virtue of a covenant by which the creditor has
required that particular person as surety.
Wife may not be 
surety of husband.  
Substituted by: 
XLVI.1973.99.
1933.      Repealed by article 83 of Act XX1 of 1993.
330               CAP.16. ħ                CIVIL CODE
Sub-title II
O F THE  E FFECTS OF  S URETYSHIP
§  I. O F THE  E FFECTS OF  S URETYSHIP AS BETWEEN  C REDITOR 
AND  S URETY 
When surety is 
bound to pay.
1934.    The surety is only bound to pay in the event of the default
of the principal debtor whose property must first be discussed.
When benefit of 
discussion does not 
apply.
1935.   The benefit of discussion shall not apply -
( a )  if the surety has renounced such benefit;
( b ) if the surety has bound himself, jointly and severally,
with the debtor;
( c ) if the debtor can set up a personal plea, such as those
mentioned in article 1926;
( d ) if  the debtor has become insolvent.
Liability of 
creditor ,  when 
benefit of 
discussion is 
admitted.  
Cap. 12.
1936.   When the benefit of discussion has been admitted, the
creditor is, to the extent of the property stated in the list produced
in accordance with the provisions contained in Sub-title VIII of
Title II of Book Third of the Code of Organization and Civil
Procedure, liable towards the surety for the insolvency of the
principal debtor which has supervened in consequence of the
creditor himself having delayed the institution or proceedings or
the prosecution with due diligence of the proceedings commenced.
When several 
persons have 
become sureties for 
the same  debtor.
1937. (1) When several persons have become sureties for the
same debtor and the same debt, each one shall be liable for the
whole debt.
(2) Nevertheless, each one of them may, unless he has
renounced the benefit of division, or unless he has bound himself
jointly and severally with the debtor, demand that the creditor
should divide his action and reduce it to the share due by each
surety.
Insolvency of co-
sureties.
1938.   If, at the time when one of the sureties has obtained such
division, some of them are insolvent he is liable proportionately for
the shares of those who are insolvent; but no claim can be made
against him in respect of the share of any other surety who becomes
insolvent subsequently to the division.
Division of action 
by creditor.
1939.    If the creditor has himself voluntarily divided his action,
he may not repudiate such division, even though there were
insolvent sureties previously to the time when he consented to such
division.
Liability of 
surety’s surety.
1940.    A surety for the surety is not liable towards the creditor,
except where the principal debtor and all the sureties are insolvent,
or have been released consequent on some plea personal to the
debtor and to the sureties.
Surety in 
commercial 
matters.
1941.    In commercial matters, the surety is always, in the
absence of an agreement to the contrary, presumed to be bound
jointly and severally with the debtor.
     CIVIL CODE            ġ CAP. 16.             331
§  II. O F THE  E FFECTS OF  S URETYSHIP AS BETWEEN  D EBTOR 
AND  S URETY
Right of relief of 
surety against 
principal debtor.
1942. (1) A surety who has paid has a right to relief against the
principal debtor, whether the suretyship has been contracted with
the consent of the debtor or without his knowledge.
(2) This right of relief shall extend both to the capital and to
the interest and expenses:
   Provided that with regard to expenses, the surety has no right to
relief except for those incurred after he has, by means of a judicial
act, given notice to the principal debtor of the molestations which
he has sustained.
Interest and 
damages due to 
surety.
1943. (1) He may also claim relief for interest on any sum that
he has paid for the debtor, although the debt did not yield interest,
as well as for damages, if any.
(2) The interest, however, which was not due to the creditor,
does not run in favour of the surety, except from the day on which
the latter shall have, by means of a judicial act, given notice to the
debtor of the payment made.
Where suretyship 
is given against 
will of debtor.
1944.    If the suretyship has been contracted against the will of
the debtor, the surety shall not be entitled to relief against the
debtor except to the extent of the advantage accruing to him.
Effect of payment 
by surety.
1945.    A surety who has paid the debt succeeds  ipso jure  to   all
the rights which the creditor had against the debtor; saving always
the provisions of article 1167 where a part only of the debt has been
paid.
Right of relief of 
surety where there 
are several debtors 
jointly and 
severally liable.
1946.    When there are several principal debtors jointly and
severally bound for the same debt, the person who stands surety for
all of them, has against each one of them a right of relief for the
whole of the amount he has paid.
When surety 
forfeits his right of 
relief against 
debtor.
1947. (1) A surety has no right to relief against the principal
debtor, if the latter, not having been notified by the surety of the
payment made by him, pays as well.
(2) A surety who has paid without having notified the principal
debtor, has no right to relief against the latter, if, at the time of the
payment, the debtor was in possession of such means as would have
enabled him to have the debt declared extinct.
(3) In each of the aforesaid cases the right of the surety to an
action for recovery against the creditor remains unimpaired.
When surety may 
proceed against 
debtor to be 
indemnified.
1948.    A surety, even before paying, may proceed against the
debtor to be indemnified by him -
( a ) if he has been sued for payment;
( b ) if the debtor has become bankrupt or insolvent, or his
condition has altered and there is a reasonable
apprehension of insolvency;
( c ) if the debtor has undertaken to release him from the
332               CAP.16. ħ                CIVIL CODE
suretyship within a specified time, and such time has
elapsed;
( d ) if the debt has become due by the expiration of the
time agreed upon for payment;
( e ) if the debtor is in default for delay in payment;
( f ) at the expiration of two years, where no time has been
fixed for payment, and the obligation is not, of its
nature, such that it cannot be extinguished before a
longer time.
§  III. O F THE  E FFECTS OF  S URETYSHIP AS BETWEEN 
C O-SURETIES
Rights of co-
sureties as between 
themselves.
1949. (1) Where several persons have become sureties for the
same debtor and for the same debt, the surety who has paid the
debt, has a right to relief against the other co-sureties for their
respective shares.
(2) The surety is entitled to such relief only if he has paid in
any of the cases mentioned in the last preceding article.
Insolvent co-
sureties.
1950.   A surety who has discharged the debt may only claim
from each of his co-sureties the amount for which each co-surety is
liable and is himself liable, together with the other co-sureties, for
contribution in respect of the shares of the insolvent sureties, even
though, on paying, he may have obtained from the creditor an
express assignment of the latter’s rights.
Sub-title III
O F  L EGAL AND  J UDICIAL  S URETYSHIP
Qualifications of 
surety.
1951.    Where a person is required by law or by an order of the
court to produce a surety, the surety offered must have the
qualifications mentioned in article 1931.
Pledge may be 
given if a surety 
cannot be found.
1952.    A person who cannot find a surety may in lieu thereof
give a pledge or other security sufficient for the discharge of the
debt.
Legal or judicial 
surety cannot claim 
the  beneficium 
escussionis  as 
against the 
principal debtor.
1953.   A legal or judicial surety cannot demand the discussion of
the principal debtor.
Surety for legal or 
judicial surety may 
claim discussion of 
the latter.
1954.   A person who has only bound himself as surety for a legal
or judicial surety may claim the discussion of the latter.
     CIVIL CODE            ġ CAP. 16.             333
Saving clause.  
Cap. 12.
1955.    The provisions of this sub-title shall not be in derogation
of the provisions contained in the Code of Organization and Civil
Procedure.
Sub-title IV
O F THE  E XTINGUISHMENT OF  S URETYSHIP
Extinguishment of 
obligation from 
suretyship.
1956.    The obligation which arises from suretyship is
extinguished for the same causes as all other obligations.
Where merger 
takes place in the 
person of the 
debtor and his 
surety.
1957.    The merger which takes place in the person of the
principal debtor and his surety, when the one becomes the heir of
the other, shall not operate so as to extinguish the right of action of
the creditor against the person who has become surety for the
surety.
Pleas which surety 
may set up against 
the creditor.
1958.    A surety may set up against the creditor all the pleas
which appertain to the principal debtor, and which are inherent in
the debt; but he may not set up pleas which are purely personal to
the debtor.
Release of surety 
where subrogation 
cannot take place.
1959.    A surety, even if jointly and severally bound, is released,
if the subrogation to the rights, hypothecs, and privileges of the
creditor cannot take place in his favour owing to the fault of the
creditor.
Where creditor 
releases one of his 
sureties without the 
consent of the 
others.
1960.    If the creditor releases one of his sureties without the
consent of the others, such release operates in favour of the other
sureties to the extent of the share of the surety so released.
Acceptance by 
creditor of 
immovable or 
other property in 
payment of debt.
1961.    Where the creditor voluntarily accepts immovable or
other property in discharge of the principal debt, the surety is
released, even though the creditor is afterwards evicted from such
property.
Extension of time 
does not release 
surety.
1962.    The mere extension of time granted by the creditor to the
principal debtor does not release the surety, who may, in such case,
proceed against the debtor to compel him to effect payment.
Duration of 
obligation of 
surety.
1963.    The surety who has limited his obligation to the same
term which was granted to the principal debtor shall continue to be
bound even beyond that term, for all the time which may be
necessary to compel the debtor to effect payment, provided the
creditor, within two months from the expiration of such term,
commences proceedings and prosecutes them with due diligence.
334               CAP.16. ħ                CIVIL CODE
Title  XXI
O F  C ONTRACTS OF  P LEDGE
Definition.  
Substituted by: 
LVIII.1975.11.
1964. (1) Pledge is a contract created as a security for an
obligation. The pledge may be given either by the debtor himself or
by a third party for the debtor.
(2) The things that may be given as a pledge are movable
things and debts and other rights relating to movable things.
Pledge of movable 
things.  
Substituted by: 
LVIII.1975.12.
1965. (1) The pledge of movable things is constituted by the
delivery to the creditor of the thing pledged or of the document
conferring the exclusive right to the disposal of the thing.
(2) The thing pledged or the document aforesaid may also be
delivered to a third party selected by the parties to the contract or
placed in the custody of both parties in such a way that the party
giving the pledge may not dispose of it without the co-operation of
the creditor.
Effects  of  pledge.  
Amended by: 
IV.1907.1. 
Substituted by: 
LVIII.1975.13.
1966. (1) A pledge confers upon the creditor the right to
obtain payment out of the thing pledged with privilege over other
creditors as provided in Title XXIII.
(2) The said privilege exists over the thing pledged only if such
thing or the document relating to it has been delivered or placed in
custody as provided in article 1965 and only so long as such thing
or document remains in the possession of the creditor or of the third
party selected by the parties or in the custody of both parties as
aforesaid.
(3) Where the thing pledged is a debt or other right in respect
of which there is no such document as is referred to in article 1965,
the said privilege shall not arise unless the pledge results from a
public deed or a private writing, and either notice of the pledge has
been given by a judicial act served on the debtor of the debt or
other right or such debtor has in writing acknowledged the pledge.
(4) Where such debt or other right results from a document, the
person giving the pledge shall, except where the document is a
public deed, be bound to deliver the document to the creditor.
Retention of 
pledge for other 
debts.
1967.    If the same debtor contracts another debt with the same
creditor subsequently to the delivery of the thing pledged, the
creditor, in the absence of an agreement to the contrary, shall have,
in respect of the second debt, the same rights on the thing pledged
as are competent to him in respect of the prior debt, even though it
has not been expressly agreed that the pledge should be made liable
for the payment of the second debt.
Where the thing 
pledged is a debt.  
Substituted by: 
LVIII.1975.14.
1968. (1) Where the thing pledged is a debt, the pledgee shall
be responsible for the collection of such debt on maturity, and shall
place the moneys or other things received either as agreed or,
failing such agreement, as the court may determine.
(2) If the debt secured by the pledge is due, the pledgee may
retain, from any moneys received as aforesaid, an amount sufficient
     CIVIL CODE            ġ CAP. 16.             335
to satisfy his rights and shall deliver the remainder to the pledgor;
and if the thing received is not money, he may proceed with the
sale of the thing as provided in article 1970.
(3) The creditor of a debt secured by the pledge of another debt
may, at any time after his debt becomes due, demand that the debt
pledged in his favour be assigned to him in payment up to the
amount of his debt.
(4) The debtor of a debt given in pledge may oppose to the
creditor of the debt secured thereby all the pleas which he could
have set up against his own creditor; but if such debtor has himself
accepted without reservation the giving of the debt in pledge, he
may not oppose to the creditor of the debt so secured any
compensation that may have taken place before the giving of the
pledge.
Pledge of thing not 
belonging to  
pledgor.  
Amended by: 
XLIX.1981.6.
1969. (1) The thing given as a pledge by a person to whom it
does not belong is validly pledged, and the owner cannot recover it,
except on payment of the debt in respect of which it was pledged.
(2) This provision except as regards Il-Monti shall not apply in
the following cases:
( a ) when it is shown that the pledgee was in bad faith;
( b ) when the thing pledged is proved to have been stolen,
and the pledgor could not, presumably, have been the
owner thereof.
Sale of pledge by 
auction.  
Amended by: 
IV.1907.2 , 3; 
XXXIX.1976.8.
1970. (1) The creditor, unless such creditor be Il-Monti,
cannot dispose of the thing pledged in case of non-payment: but he
may cause the thing to be sold by auction under the authority of the
court.
Power of the court 
in case of pledges 
having a stock 
exchange or 
market value.
(2) The demand of the creditor for such sale may be made even
by means of an application and it shall be lawful for the court upon
such application to order the sale of the thing pledged, if the debtor
or his lawful representative, duly served with a copy of such
application with a time of three days within which to file an
answer, fails to file such answer or makes no opposition to the
demand.
Cap. 12.
(3) It shall be lawful for the court, on good cause being shown,
to abridge at its discretion the times fixed in articles 256 and 312
and in the latter part of sub-article (3) of article 314 of the Code of
Organization and Civil Procedure.
(4) If the thing pledged has a stock exchange or market price, it
shall be lawful for the court, on the application of the creditor, to
be served upon the debtor or his lawful representative, to order that
the sale of the thing pledged, even though such sale be in execution
of a judgment, be carried out, instead of by auction, by means of a
public broker or a bank or other banking institution to be appointed
by the court.
(5) The application referred to in the last preceding sub-article
of this article may not, except where the sale of the pledge is in
execution of a judgment, be made by the creditor until after the
336               CAP.16. ħ                CIVIL CODE
lapse of three days from the service of an intimation, calling upon
the debtor or his lawful representative to pay the debt within the
said time and warning him that in default of payment, proceedings
will be taken for the sale of the pledge.
(6) In no case shall the opposition of the debtor to the sale of
the pledge as provided in sub-article (4) of this article operate so as
to prevent or delay such sale, saving the right of the debtor to
maintain an action for damages, where competent.
(7) In the case referred to in sub-article (4) of this article the
court may, if the creditor is a bank or other banking institution,
authorize such creditor to sell the pledge at the current price, saving
the right of the debtor to maintain an action for damages, where
competent.
(8) The public broker, or the bank or other banking institution
referred to in this article shall, within twenty-four hours from the
receipt of the proceeds of the sale of the pledge, pay such proceeds
into the court by which the sale was ordered, after deducting
therefrom any expenses and commission which may be due.
When debtor may 
demand sale of 
pledge.
1971.    The debtor also may, after the debt has fallen due, or even
before if the time for payment was not stipulated in favour of the
creditor, demand in the manner prescribed in the last preceding
article the sale of the pledge in order to pay the debt in respect of
which the pledge was given.
When the thing 
pledged cannot be 
preserved without 
deterioration.
1972.    The sale of the pledge may be demanded at any time both
by the debtor and by the creditor if it is shown that the thing
pledged can no longer be preserved without deterioration.
Certain covenants 
are void.
1973.    Any covenant allowing the creditor to appropriate the
thing pledged, or to dispose of it without complying with the
formalities prescribed in article 1970 or depriving the creditor or
the debtor of the right to demand the sale of the pledge as provided
in articles 1970, 1971 and 1972 is void.
Debtor to remain 
the owner of the 
thing pledged.
1974.    The debtor remains the owner of the thing pledged until
he is divested of the ownership thereof.
Liability of 
creditor.
1975. (1) The creditor is liable for the loss or deterioration of
the thing pledged resulting from his negligence.
(2) The debtor is bound on his part to refund to the creditor any
expenses which the latter may have incurred for the preservation of
the pledge.
Fruits. 1976.    The fruits of the pledge shall be deemed to form a part
thereof, and shall be subject to all the rights of the creditor as the
pledge itself.
How interest or 
other profits of 
pledge are to be 
appropriated.
1977. (1) If the thing pledged bears interest or yields other
profits, the creditor shall appropriate such interest or profits to the
interest which may be due to him.
(2) If the debt in security of which the pledge was given does
not bear interest, the appropriation shall be made to the principal of
the debt.
     CIVIL CODE            ġ CAP. 16.             337
(3) Any covenant contrary to the provision of this article is
null.
Abuse of pledge by 
creditor. 
1978.    In case of abuse of the pledge on the part of the creditor,
the debtor may demand that the thing pledged be deposited with a
third party, in order to safeguard the rights of the creditor and of
the debtor.
Restitution of 
pledge to debtor.
1979.    The debtor cannot claim the restitution of the thing
pledged until he has wholly paid the principal, interest and
expenses of the debt for which the pledge is liable.
Creditor may make 
use of pledge.
1980.    The creditor may, with the consent of the debtor, make
use of the pledge, saving the provisions of article 1977 in case the
creditor should derive an advantage therefrom.
Use of pledge 
without debtor’s 
consent to be 
deemed abuse. 
1981.    The use of the thing pledged made by the creditor without
the consent of the debtor shall be deemed to be an abuse thereof,
and the creditor shall be liable to the consequences mentioned in
article 1978, and shall, moreover, be bound to make the
appropriation referred to in article 1977, if he has derived any
advantage from such use.
Sub-pledging of 
thing pledged with 
debtor’s consent.
1982.    The creditor who with the consent of the debtor sub-
pledges the thing which he holds by way of pledge shall continue to
be liable for any loss of or injury to the thing pledged, which is
caused by negligence, as well as for the restitution of the pledge at
the time when such restitution is due.
Sub-pledging of 
thing pledged 
without debtor’s 
consent.
1983.    The creditor who without the consent of the debtor sub-
pledges the thing which he holds by way of pledge, shall be liable
also for any loss or injury caused by a fortuitous event, where the
thing pledged would not have been lost or injured if it had remained
in the possession of the creditor.
Use of pledge by 
sub-pledgee.
1984.    If the person to whom the thing has been given by the
creditor by way of sub-pledge, makes use thereof, the provisions of
articles 1980 and 1981 shall apply in favour of the debtor who had
given such thing to the creditor by way of pledge.
Indivisibility of 
pledge.
1985. (1) A pledge is indivisible, notwithstanding the
divisibility of the debt between the heirs of the debtor or the heirs
of the creditor.
(2) The heir of the debtor who has discharged his share of the
debt cannot demand the restitution of his share of the pledge until
the whole debt has been discharged.
(3) On the other hand, the heir of the creditor who has received
his share of the debt, cannot return the pledge to the prejudice of
the unpaid co-heirs.
Saving clause as to 
advances on goods 
in commercial 
transactions.
1986.    The provisions of this Title shall not affect other laws and
usages in force touching the rights of creditors in respect of
advances made on goods, in commercial transactions.
338               CAP.16. ħ                CIVIL CODE
Title  XXII
O F  A NTICHRESIS
Definition of 
contract of 
antichresis.  
Amended by: 
XXX.1981.13; 
XX.1984.3; 
V.1993.3.
1987. (1) Antichresis is a contract whereby a creditor acquires
the right to collect the fruits of an immovable belonging to his
debtor, subject to his obligation of deducting annually such fruits
from the interest if any be due to him, and then from the principal
of the debt.
(2) Antichresis can only be created by virtue of a writing.
(3) Any antichresis created by virtue of a public deed before
the 28th February, 1961, for a period exceeding thirty years, is
deemed to be a sale, provided the said public deed is enrolled in the
Public Registry as a transfer by title of sale.
(4) The enrolment referred to in sub-article (3) of this article
may be made at any time by the creditor or by any person deriving
title from the creditor.
Liabilities  of 
creditor.
1988. (1) The creditor is bound, unless it has been otherwise
agreed, to pay the ground-rent and other burdens to which the
immovable which he holds in antichresis is subject.
(2) He must also provide for the maintenance and the necessary
repairs of the immovable.
(3) All the expenses for the above purposes shall be deducted
from the fruits.
Resumption of 
enjoyment of 
immovable.
1989. (1) The debtor cannot, before he has wholly satisfied his
debt, resume the enjoyment of the immovable which he has given
by way of antichresis.
(2) Nevertheless, the creditor who wishes to release himself
from the obligations mentioned in the last preceding article, can
always compel the debtor to resume the enjoyment of the
immovable, unless he has renounced such right.
Ownership of 
immovable not to 
vest in creditor.
1990. (1) The creditor does not become the owner of the
immovable by the mere default of payment at the time agreed upon;
and any agreement to the contrary is void.
Cap. 12.
(2) In default of payment, he may sue for the sale of the
immovable by judicial auction according to the provisions of the
Code of Organization and Civil Procedure.
Setting off of fruits 
against interest.  
Amended by: 
XXXIX.1961.2
1991.    The contracting parties may stipulate that the fruits be set
off against the interest, in whole or in part, even though the interest
agreed upon may thus be exceeded, provided the interest shall not
thereby exceed the rate of eight per cent  per annum.
Applicability of 
provisions relating 
to pledge.  
Substituted by: 
LVIII.1975.15.
1992. (1) Antichresis may be given by a third party for the
debtor.
(2) The provisions of articles 1979 and 1985 shall also apply to
antichresis.
     CIVIL CODE            ġ CAP. 16.             339
Rights of third 
parties on 
immovable 
subjected to 
antichresis.
1993. (1) Nothing in this Title shall affect the rights which
third parties may have on the immovable subject to antichresis.
(2) If the creditor who holds the immovable by way of
antichresis, enjoys, independently of such antichresis, any right of
privilege or hypothec lawfully created on such immovable, he may
exercise such right of privilege or hypothec in the order competent
to him and as any other creditor.
Title  XXIII
O F  P RIVILEGES AND OF  H YPOTHECS
Debtor’s property 
to be subject to his 
liabilities.
1994.    Whosoever has bound himself personally, is obliged to
fulfil his obligations with all his property, present and future.
Debtor’s property 
to constitute 
common guarantee 
of his creditors.
1995.    The property of a debtor is the common guarantee of his
creditors, all of whom have an equal right over such property,
unless there exist between them lawful causes of preference.
Causes of 
preference.
1996.    The lawful causes of preference are privileges, hypothecs
and the benefit of the separation of estates.
Right of retention. 
Amended by: 
LVIII.1975.16.
1997. (1) The provisions of this Title shall not affect the right
of retention in cases in which such right is competent according to
law.
Cap. 234.
(2) The said provisions shall not apply to ships or to debts to
which ships may be subject except so far as they are consistent with
the provisions of the Merchant Shipping Act.
(3) Nor shall the said provisions apply to debts in respect of
advances made on goods in commercial transactions, except so far
as such provisions are consistent with other existing laws and
usages.
Saving as to 
previous laws.
1998.    The provisions of this Title excepting those contained in
Sub-title V shall not affect the provisions of previous laws as
regards privileges and hypothecs created before the 11th February,
1870.
Sub-title I
O F  P RIVILEGES
Definition of 
privilege.
1999.    Privilege is a right of preference which the nature of a
debt confers upon a creditor over the other creditors, including
hypothecary creditors.
General or special 
privileges.
2000.    Privileges may exist over movables as well as over
immovables. They are either general or special.
340               CAP.16. ħ                CIVIL CODE
Effects.  2001. (1) A   general privilege extends over all property in
general.
(2) A special privilege affects certain particular movables or
immovables.
Privileges  not  
inherent in 
property.
2002. (1) Special privileges over movables, and general
privileges cease to exist if the property passes into the hands of a
third party.
Privileges inherent 
in property.
(2) Special privileges over immovables continue to attach to
such immovables whatever transfers to other persons take place.
§  I. O F  G ENERAL  P RIVILEGES
Claims secured by 
general privilege.
2003.    The privileged debts over all property in general, are:
( a ) judicial costs;
( b ) funeral expenses;
( c ) death-bed expenses;
( d ) wages of servants;
( e ) supplies of provisions.
Judicial costs. 2004. (1) The judicial costs which are privileged are the costs
incurred in making up the inventory, or otherwise incurred for the
common benefit of the creditors, including the costs necessary for
carrying out the sale of the property and for distributing the
proceeds thereof.
(2) The costs incurred by a creditor in respect of the debt due to
him and which are not advantageous to the other creditors, are
considered as accessory to the debt itself.
Funeral expenses. 2005.    The funeral expenses which are privileged are the
expenses which, according to custom and within the limits of
decency, are incurred in connection with the removal and burial of
the dead body, and with the religious services.
Death-bed 
expenses.
2006. (1) The death-bed expenses which are privileged are the
charges of the physician, surgeon, obstetrician, midwife or
apothecary, and the expenses incurred for nursing the sick person.
(2) In the case of a chronic illness, the privilege applies only to
the expenses incurred in the last two months preceding the death. 
Wages of servants. 2007.    The wages of servants which are privileged are only those
due in respect of the two months preceding the opening of the
competition for the ranking of creditors, or the death of the debtor. 
Supplies of 
provisions.
2008.    The supplies of provisions which are privileged include
only such articles of food as were indispensable for the support of
the debtor and his family, during the aforesaid two months, and the
necessary garments of mourning for the family.
     CIVIL CODE            ġ CAP. 16.             341
§  II. O F  S PECIAL  P RIVILEGES
O F  P RIVILEGES OVER  P ARTICULAR  M OVABLES
Privileged claims 
over particular 
movables.  
Amended by: 
VII.1944.4; 
II.1966.4;   
XLVI.1973.100.
2009.    The privileged debts over particular movables are:
Pledgee.
holds as a pledge;
Hotel-keeper.
provided or supplies furnished to a guest, over the
effects of such guest, so long as such effects exist in
the hotel or house of the hotel-keeper;
Carriage expenses.
carried;
Price of thing.
the sale has been effected with a stipulation as to credit
or without such stipulation; and the debt due for
labour, supplies or expenses, bestowed, furnished or
incurred in the production or for the preservation or
improvement of a thing, over the thing itself, saving,
with regard to the seller, the provisions of article 1439.
Advocates and 
legal procurators.
   This privilege applies also to the debt due to the
advocate and legal procurator for their fees in respect
of the action for the recovery of a thing, over the thing
itself, if recovered; as well as to the debt due to the
person disbursing the expenses incurred in such
action;
Dominus  and 
lessor.
( e ) the debt due to the  dominus  for ground-rent, and the
debt due to the lessor for the rent of an immovable,
over the fruits, and over the value of all things which
serve for the furnishing or stocking, or for the
cultivation of the tenement, to whomsoever such fruits
or other things may belong:
   Provided that such privilege shall not be available to
the proprietor or the lessor if the said products or
things belong to or are held by or on behalf of any
department of the Government of Malta in any case in
which such department is not itself directly liable for
the payment of the debt.
   This privilege applies also to indemnities due to the
dominus  or to the lessor for the repairs which the
emphyteuta or the lessee has failed to carry out, and
for the non-performance of any other covenant of the
contract.
   It shall be lawful for the  dominus  and the lessor to
342               CAP.16. ħ                CIVIL CODE
seize, or attach by a garnishee order the movables with
which the tenement was furnished or stocked or which
served for its cultivation if such movables have been
removed elsewhere without their consent, and they
preserve their privilege over such movables provided
they make the demand for the issue of the warrant
within fifteen days from the day on which the said
movables have been so removed.
O F  P RIVILEGES OVER  I MMOVABLES
Privileged 
creditors over 
immovables.
2010.    The privileged creditors over immovables are:
Dominus . ( a ) the  dominus , over the  dominium utile  of the
emphyteutical tenement, for the debt due to him by the
emphyteuta in respect of ground-rent and for the
performance of the other obligations arising from the
emphyteutical contract;
Architects ,  etc. ( b ) architects, contractors, masons and other workmen,
over the immovable constructed, reconstructed or
repaired, for debts due to them in respect of the
expenses and the price of their work.
Person supplying 
money or 
materials.
   The same privilege is competent to the person who
has, by means of a public deed, supplied money or
materials for the construction, reconstruction or repair
of the immovable, or for the payment of the workmen
employed on such work, provided it is shown by the
said deed that the supply was made for that purpose,
and it is proved that the work was carried out or the
payments to the workmen made, with the materials or
out of the money supplied.
Third party in 
possession.
   The same privilege is also competent to a third party
in possession, over the immovable of which he has
been dispossessed, for the repairs and improvements
made in or on such immovable.
   The said privilege, in case of repairs necessary for
the preservation of the immovable extends to the
whole amount of the debt; in any other case, it is
limited to the sum corresponding to the increase in the
value of the immovable resulting from the works or
expenses;
Vendor or other 
alienor.
( c ) the vendor or any other alienor, whether under an
onerous or a gratuitous title, over the immovable sold
or alienated by means of a public deed, for the whole
or the residue of the price, or for the performance of
the covenants stipulated in the deed of sale or
alienation.
     CIVIL CODE            ġ CAP. 16.             343
Lender of money  
for the  payment of 
price.
   The same privilege is competent to the person who
has, by means of a public deed, supplied in whole or in
part the money for the payment of the price agreed
upon, provided it is shown by the deed of loan that the
money was supplied for that purpose, and it is proved
that the money taken on loan has been paid to the
vendor or other alienor.
   If there are several successive alienations, the first
alienor is preferred to the second, the second to the
third, and so on;
Co-heirs.
immovables which were the subject of the partition, in
case of eviction of the immovables divided between
them, and for any compensation or owelty of partition;
Advocate and legal 
procurator.
( e ) the advocate and the legal procurator, for the fees due
to them for their services in the action for the recovery
of the immovable, and the person disbursing the
expenses of the said action, over the immovable, if
recovered.
Sub-title II
O F  H YPOTHECS
Definition of 
hypothec. 
2011. (1) Hypothec is a right created over the property of a
debtor or of a third party, for the benefit of the creditor, as security
for the fulfilment of an obligation.
(2) Hypothec is of its nature indivisible, and it exists in its
entirety over all the things so charged, over each of such things and
over every portion thereof.
Kinds of hypothec. 
Substituted by: 
LVIII.1975.17.
2012. * (1) A hypothec is general or special: it is general when it
affects all the property present and future of the debtor; it is special
when it affects only one or more particular immovables of the
following kind:
( a ) things which are immovable by their nature, and
products of such immovables so long as they are not
separated therefrom;
( b ) the right of usufruct over the said immovables, during
the continuance of such right;
( c ) the  dominium directum  over the said immovables
given on emphyteusis, and the  dominium utile  over
such immovables.
(2) A hypothec is legal, judicial or conventional: it is legal if it
*This article ,  as substituted by Act LVIII  of 1975 ,  applies to all hypothecs arising or
contracted before 1st January, 1976.   
344               CAP.16. ħ                CIVIL CODE
arises by operation of law; it is judicial if it originates from a
judgment; it is conventional if it is established by contract.
Effects of hypothec 
when property 
passes to a third 
party.  
Substituted by: 
LVIII.1975.18.
. 2013. * (1) A special hypothec continues to attach to any
immovable charged therewith into whosoever’s possession such
immovable may pass.
(2) A general hypothec attaches to the property affected
thereby only so long as such property does not pass into the hands
of a third party.
(3) For the effects of a hypothec, a debt or an action which has
been assigned shall not be deemed to have passed into the hands of
a third party so long as the assignee has not collected the debt or
obtained the thing forming the subject of the action, except in cases
of debts or actions arising from bills of exchange or other
documents of title transferable by endorsement or delivery.
Hypothec may be 
created for 
indeterminate 
obligation.
2014.    A hypothec can be created even in regard to an
indeterminate obligation, provided the object thereof be
determinate.
Hypothec is 
subject to 
rescission  as 
principal 
obligation.
2015.    If the right of the debtor over the thing affected by the
hypothec is subject to a suspensive condition or is subject to
dissolution or annulment, the hypothec is likewise conditional or
subject to dissolution or rescission, saving the provisions of article
1791.
Special hypothec 
in addition to 
general hypothec. 
Substituted by: 
LVIII.1975.19. 
Amended by: 
VII.1985.3.
2016. † (1) The creditor of a debt secured by a general hypothec
and whose rights are not otherwise already adequately secured,
shall have, and may cause to be registered, as a further security of
the same debt, a special hypothec over such of the immovable
property of the debtor which are of a kind referred to in article 2012
and which are of a value sufficient to secure the debt as provided in
article 2063.
(2) The right conferred by sub-article (1) of this article shall be
exercisable by means of a note presented to the Director of the
Public Registry for registration and signed by any person who,
according to article 2045, could have signed the note in respect of
the general hypothec and in the case of debtors resulting from a
public deed by means of a note signed by any notary public; but the
exercise of such right shall be without prejudice to the rights of the
debtor to demand the reduction or cancellation of the registration in
accordance with the provisions of Sub-title V of this Title.
* This article ,  as substituted by Act LVIII of 1975 ,  applies to all hypothecs arising or
contracted before 1st January, 1976.  However ,  until the expiration of ten years after
the said date ,  and subject to all other provisions of this Code ,  a general hypothec
registered before the 1st January, 1976 shall continue to attach to immovables charged
therewith ,  even if such immovables are acquired after the 1st January, 1976 ,  as if  the
provision of this Code were still operative as in force prior to the substitution effected
by Act LVIII of 1975.
† This article ,  as substituted by Act LVIII of 1975 ,  applies to all hypothecs arising or
contracted before 1st January, 1976. However ,  until the expiration of ten years after
the said date ,  and subject to all other provisions of this Code ,  a general hypothec
registered before the 1st January, 1976 shall continue to attach to immovables charged
therewith ,  even if such immovables are acquired after the 1st January, 1976 ,  as if  the
provision of this Code were still operative as in force prior to the substitution effected
by Act LVIII of 1975.
     CIVIL CODE            ġ CAP. 16.             345
Cap. 296.
(3) Where the immovable property of the debtor over which is
to be registered the special hypothec referred to in sub-article (1) of
this article is situated in an area declared to be a land registration
area in accordance with the Land Registration Act, or is otherwise
registered in accordance with the provisions of that Act, the right
conferred by sub-article (1) of this article shall be exercisable by
the registration in accordance with that Act, of a charge or a
cautionary charge as the case may be.
§  I. O F  L EGAL  H YPOTHEC
When legal 
hypothec is 
granted.
2017.    A legal hypothec is granted only in the cases hereinafter
specified.
Legal hypothec in 
favour of wife ,  for 
dowry.
2018. (1) The wife has, as from the day of the celebration of
her marriage, a general legal hypothec over the property of the
husband, for the dowry settled by means of a public deed
previously to the marriage.
(2) In regard to dotal money or property coming to her under
any succession or donation, the said hypothec arises only from the
day on which the succession is opened or the donation takes effect.
Legal hypothec in 
favour of minors ,  
Substituted by: 
XLVI.1973.102. 
Amended by: 
XXI.1993.84.
2019. (1) A minor has a general legal hypothec over the
property of the parent to whose authority he is subject in respect of
the liability contracted by such parent in the administration of the
property of the minor.
(2) Such hypothec arises from the day on which the
administration of such property vests in the parent.
(3) Where a parent contracts another marriage, the said
hypothec extends over the property of the step-parent as from the
day of the marriage, if the parent continues in the administration
without the authority required by law.
of children or other 
descendants ,  
2020. (1) Children and other descendants have also a general
legal hypothec over the property of their surviving ascendant, in
respect of the rights saved to them under articles 637, 638 and 825
in case the said ascendant contracts another marriage.
(2) Such hypothec arises from the day of the death of the other
ascendant.
of persons subject 
to tutorship ,   etc. 
Amended by: 
XLVI.1973.103.
2021.    Persons subject to tutorship or curatorship have a general
legal hypothec over the property of the tutors or curators, for the
liability of the latter in respect of their administration, as from the
day on which such tutors or curators have accepted the office of
tutor or curator.
Creditor having 
privilege ,  has 
special hypothec.
2022.    The creditor who has a privilege over an immovable, has
a special legal hypothec over the immovable subject to the
privilege.
346               CAP.16. ħ                CIVIL CODE
§  II. O F  J UDICIAL  H YPOTHEC
Judicial hypothec. 2023.   Judicial hypothec originates from - 
( a ) judgments given by any of the courts of Malta in
favour of the parties obtaining such judgments;
( b ) awards of arbitrators, or decisions given by courts
outside Malta, in favour of the parties obtaining such
awards or decisions, provided the execution thereof
has been ordered by a judgment of the competent court
in Malta.
§  III. O F  C ONVENTIONAL  H YPOTHEC
Who can contract 
conventional 
hypothec. 
2024. (1) A conventional hypothec can only be contracted by
persons who are capable of alienating the property which they
charge with such hypothec.
(2) The property of persons who are not capable of alienating
cannot be hypothecated by contract except for the causes and in the
form established by law.
Conventional 
hypothec cannot be 
created except by 
public deed.
2025.    A conventional hypothec cannot be created except by a
public deed.
Contracts made 
outside Malta.  
Amended by: 
XXXI.1965.22; 
LVIII.1974.68.
2026.    Contracts made outside Malta, by any public or authentic
instrument, according to the laws of the place, or before the
diplomatic or consular representative of the Government of Malta
in that place or a person serving in the diplomatic, consular or other
foreign service of any country which, by arrangement with the
Government of Malta, has undertaken to represent that
Government’s interests in that place or a person authorized in that
behalf by the President of Malta, can create a hypothec over
property existing in Malta, if the competent civil court, on the
demand of the creditor, by writ of summons, shall have ordered the
registration thereof.
Sum  for which 
hypothec is  
contracted to be 
specified in the 
deed.
2027.    A conventional hypothec is not valid if the sum for which
it is agreed upon is not specified and stated in the deed. If the debt
resulting from an obligation is conditional as to its existence, or
indeterminate as to its value, the creditor cannot demand the
registration of the hypothec except for an amount expressly stated
by him, saving the right of the debtor to cause such amount to be
reduced, where competent.
Conventional 
hypothec are 
general or special. 
2028. (1) A conventional hypothec may be general or special.
(2) Only the immovables mentioned in article 2012 can be
charged with a special hypothec.
(3) A special hypothec shall extend to all improvements
subsequently made in or on the property hypothecated.
     CIVIL CODE            ġ CAP. 16.             347
Sub-title III
H OW  P RIVILEGES AND  H YPOTHECS ARE  P RESERVED *
Special privileges 
to be registered.
2029.    Special privileges over immovables are ineffectual unless
they are registered in the Public Registry within the time of two
months.
Day  from which 
the time for 
registration runs. 
2030.   The time referred to in the last preceding article shall run-
( a ) as regards the debts mentioned in paragraphs ( a ), ( c )
and ( d ) of article 2010 from the date of the contract;
( b ) as regards the debt mentioned in paragraph ( b ) of the
said article from the day on which the works are
completed, or, as the case may be, from the day of the
adjudication of the immovable;
( c ) as regards the debts mentioned in paragraph ( e ) of the
same article from the date of the judgment or of the act
by which the suit is terminated.
Privileges ,  if 
registered ,  are 
unaffected by 
alienations ,  etc. ,  
made within the 
time for 
registration.
2031. (1) The aforesaid privileges, if registered within the
time mentioned in the last preceding article, shall not be affected
by any alienation of the property charged with the privilege, or by
any hypothec or burden created thereon, during the course of the
aforesaid time.
(2) The legal hypothec attached to privileged debts shall
remain unimpaired, even though such privileges are not registered
within the aforesaid time, provided such hypothec is preserved as
required in article 2033.
General privileges 
and special 
privileges over 
movables not 
subject to 
registration.
2032.    General privileges, and special privileges over movables,
are not subject to registration.
Hypothec to be 
registered.
2033. (1) A hypothec, whether legal, judicial, or conventional,
is not effectual unless it is registered in the Public Registry, and it
does not rank except from the date of its registration.
(2) Nevertheless, the hypothec for the dowry settled before
marriage shall rank from the day of the celebration of the marriage
provided it is registered within one month from such day: and in
such case the said hypothec shall not be affected by any alienation,
or hypothec, or burden, made or registered during the course of the
aforesaid time.
*As to old privileges and hypothecs ,   see  the Old Privileges and Hypothecs
( Registration and Renewal )  Ordinance  ( Chapter 27 ) .
348               CAP.16. ħ                CIVIL CODE
Duties of notary in 
respect of 
registration of legal 
hypothec of wife 
against husband in 
certain cases.
Amended by: 
XXXIX.1939.12;
XLVI.1973.104;
XI.1977.2;
XIII.1983.5.
2034. (1) The notary who receives a deed involving the
settlement of a dowry shall cause the registration of the relative
hypothec over the property of the husband to be made within the
next following month, notwithstanding any covenant to the
contrary, unless such registration shall have been made within the
time on the demand of other persons.
(2) The notary who contravenes the provisions of sub-article
(1) of this article shall be liable in damages towards the party
interested, and shall be subject to a fine ( ammenda )   not exceeding
five liri to be awarded by the Court of Revision of Notarial Acts,
either of its own motion or on the demand of any person.
Responsibility of 
registrar of  court 
of voluntary 
jurisdiction with 
regard to persons 
under tutorship or 
curatorship. 
Cap. 12.
2035.    The registrar of the court of voluntary jurisdiction shall be
liable in damages towards any person under tutorship or
curatorship if he fails to cause the obligations assumed by any tutor
or curator to be registered as provided in the Code of Organization
and Civil Procedure.
Who may demand 
registration.
2036.    Registration may be demanded by the creditor, or by any
other person interested.
Relatives may 
demand 
registration in 
certain cases.  
Amended by: 
XLVI.1973.105.
2037.    The registration of legal hypothecs granted to minors, or
to persons insane or interdicted, may also be demanded by any of
their relatives.
Ascendant to effect 
registration of 
hypothec granted 
to unemancipated 
children.   Amended 
by: 
XLVI.1973.106; 
XXX.1981.14; 
XXI.1993.2.
2038. (1) The registration of the legal hypothec granted to
minors under the provisions of article 2019 shall be effected by the
parent mentioned in that article within four months from the day on
which the hypothec arises, unless such registration shall have
already been made at the request of any other relative of such
children.
(2) If the parent contravenes the provisions of sub-article (1) of
this article, he shall forfeit his rights of parental authority, as well
as the right of further managing the property of the persons
previously subject to his authority or of enjoying the usufruct to
which he may have been entitled by law.
(3) The court of voluntary jurisdiction may, according to
circumstances, reinstate the parent in the rights so forfeited.
Time within which 
ascendant ,  etc. ,  is 
to effect 
registration of 
hypothec in favour 
of children.  
Amended by: 
XXI.1993.2.
2039. (1) Where the children or other descendants mentioned
in article 2020 are minors, the registration of the hypothec granted
to them under that article shall be effected by the ascendant therein
referred to, or, as the case may be, by the tutor or curator, within
fifteen days from the celebration of the marriage of the said
ascendant, unless it shall have already been made at the request of
any other relative.
(2) If the ascendant bound to cause such registration to be made
fails to do so within the said time, the court may, according to
circumstances, appoint an administrator of the property the
ownership of which, in virtue of the provisions of articles 637, 638
and 825, shall have vested in the said children or descendants, and
     CIVIL CODE            ġ CAP. 16.             349
the provisions of the last preceding article shall apply with regard
to the rights of parental authority which may be competent to such
ascendant.
When registration 
against debtor in a 
state of bankruptcy 
or against an 
inheritance is 
inoperative.
2040. (1) The registration is ineffectual if it is made at a time
when the debtor is in a state of bankruptcy, or if it is proved that the
creditor, at the time of the registration, knew of the existence of
circumstances on which the debtor could found a declaration of
bankruptcy.
(2) The provisions of sub-article (1) of this article shall also
apply as between the creditors of an inheritance, if the registration
is made after the opening of the succession, and the inheritance
remains vacant or is accepted with the benefit of inventory.
Exceptions.
apply where it was not possible, owing to the insufficiency of time,
to make the registration; and such insufficiency of time shall be
presumed if fifteen days shall not have elapsed from the day on
which the registration could have been made to the day on which
the debtor was in a state of bankruptcy, or on which the creditor
became aware of the existence of circumstances on which the
debtor could found a declaration of bankruptcy, or on which the
debtor died.
(2) Nor shall such provisions apply with regard to the
registration of privileges or hypothecs acquired previously to the
day last mentioned, if the time allowed for the preservation thereof
shall not have yet elapsed.
Particulars of note 
of registration. 
Amended by: 
XXXIX.1939.13; 
XXV.1940.2.
2042.     For the purposes of registration, there shall be presented
to the Director of the Public Registry a note containing the
following particulars:
( a ) the name and surname of the creditor, his place of
birth, his place of residence, his profession, trade or
other status and the name of his father;
( b ) the name and surname of the debtor, his place of birth,
his place of residence, his profession, trade or other
status, his father’s name, his mother’s name and
maiden name or any other particulars sufficient, in the
opinion of the director, to identify the debtor;
( c ) the cause of the debt or other claim, and the date and
nature of the act creating such debt or claim;
( d ) the amount of the capital due, or the amount stated in
the cases referred to in article 2027;
( e ) the rate of interest agreed upon;
( f ) the time when the debt falls due;
( g ) an indication as to whether the registration is
demanded for privilege or hypothec, and, in case of
hypothec, whether it is general or special;
( h ) in case of privilege or special hypothec, an indication
of the immovable charged with such privilege or
350               CAP.16. ħ                CIVIL CODE
hypothec.
When cause of 
privilege or 
hypothec is to be 
stated in the note.
2043.    Where a legal hypothec or a privilege exists
independently of a public deed, the cause giving rise to such
privilege or hypothec and the time of its origin shall be stated in the
note.
When it is not 
necessary to state 
the amount of the 
debt.
2044.    In the case of legal hypothecs, the obligation to state the
amount of the debt shall not apply with regard to claims the value
whereof in a liquidated sum is not stated in a public deed.
By whom note is to 
be signed.
2045. (1) If the debt results from a public deed, the note must
be signed by the registrar of the court, or by the notary who has
received, or is the keeper of the deed, or is authorized to give out a
copy thereof.
(2) If the debt results from a judgment, the note must be signed
by the registrar of the court by which the judgment was delivered.
(3) In any other case, the note must be signed by the person
requiring the registration, or by an advocate, a notary, or a legal
procurator.
When judicial 
hypothec may be 
registered.
2046. (1) A judicial hypothec may be registered even though
the judgment be subject to appeal, saving any reduction or
cancellation which may become necessary.
(2) Nevertheless, if the judgment or award does not order the
debtor to pay a liquidated sum, the registration cannot be made
unless the amount to be registered is determined in the same or any
other judgment or award, or, with the concurrence of the debtor, in
a public deed.
Registration 
affecting property 
of a deceased 
person.
2047.   A registration affecting the property of a deceased person
may be made under his name, without mentioning the heir.
When immovable 
property is in the 
hands of third 
parties.
2048.   If at the time of the registration, the immovables are in the
hands of third parties, the indication of the debtor alone shall be
sufficient.
Difference 
between amount 
due and that stated 
in the registration.
2049.   Where there is any difference between the amount due
and that stated in the registration, the registration shall be operative
for the lesser amount.
Expenses of 
registration to be 
borne by debtor.
2050.   The expenses of registration shall, in the absence of an
agreement to the contrary, be borne by the debtor.
Assignment may 
be entered in 
registry.
2051. (1) The assignee of any debt or other claim secured by a
registered privilege or hypothec may demand that the assignment,
whether it be in respect of the whole sum or a part thereof, be
entered in the registry for the amount so assigned, provided the
assignment shall have been made by a public deed.
(2) The aforesaid demand may also be made by any other party
interested.
     CIVIL CODE            ġ CAP. 16.             351
Requirements of 
note for entering 
assignment in the 
Public Registry.
Amended by:
XII.1986.5.
2052. (1) For the purpose of entering an assignment in the
registry as aforesaid, a note shall be presented to the Director of the
Public Registry containing, the progressive number and the year of
the registration, the date of the assignment, and an indication of the
assignee in the manner prescribed for the indication of the creditor.
(2) The note must be signed by the notary who has received, or
is the keeper of the deed of assignment, or is authorized to give out
a copy thereof.
Sub-title IV
O F THE  R ENEWAL OF  R EGISTRATIONS
Renewal of 
registration of 
privileges and 
hypothecs.
2053. (1) The registration of a privilege or hypothec in the
Public Registry shall cease to have effect after thirty years from the
date thereof unless such registration is renewed before the
expiration of the said time.
(2) The registration of a legal hypothec in favour of the wife or
of any person subject to tutorship or curatorship shall be exempt
from renewal until one year after the dissolution of the marriage or
the cessation of the administration.
Renewal after 
lapse of time to 
have the effect of 
an original 
hypothec.
2054.   A renewal, if made after the expiration of the prescribed
time shall, even in the case of a privilege, have the effect of an
original hypothec which shall rank only from the date of the
renewal.
Persons entitled to 
demand renewal.
2055. (1) The renewal of a registration may be demanded by
any person who, according to law, is entitled to demand the
registration.
(2) The renewal shall be made in the same Public Registry in
which the registration was made.
Renewal of 
registration not to 
interrupt 
prescription.
2056.   The renewal of a registration caused to be made by the
creditor shall not interrupt the running of prescription in favour of
the debtor or of the third party in possession.
How renewal is 
made.
2057.   In order to obtain the renewal of a registration it shall be
necessary to present to the Director of the Public Registry a note
similar to that of the previous registration with a declaration that it
is intended to renew the original registration.
Expenses of 
renewal.
2058.    In the absence of an agreement to the contrary the
expenses of the renewal shall be at the charge of the debtor.
352               CAP.16. ħ                CIVIL CODE
Sub-title V
O F THE  R EDUCTION AND  C ANCELLATION OF  R EGISTRATIONS
Reduction of 
registration. 
2059. (1) The reduction of a registration is a partial
cancellation thereof.
(2) A registration may be reduced -
( a ) if a part of the debt is extinguished;
( b ) if the right of the creditor, previously affecting the
whole of an immovable, or several immovables, is
restricted to a part of such immovable conveniently
separable therefrom, or to one or some only of such
immovables.
How registration 
may be reduced or 
cancelled.
2060. (1) A registration may be reduced or totally cancelled
either with the consent of the creditor given in a public deed, or in
virtue of a judgment of the competent court.
(2) If the creditor is not capable of alienating, his consent for
the reduction or cancellation of a registration is not valid unless it
is given in the form prescribed by law.
When reduction of 
registration may be 
made without the 
creditor’s consent.
2061.   If the total or partial extinguishment of a registered debt
results from a judgment which has become  res judicata  or from any
other public deed, the cancellation of the registration, or the
reduction thereof as to the amount of the debt, may be effected
without the consent of the creditor.
When reduction 
may be ordered by 
court.
2062. (1) Besides in the case mentioned in article 2027, the
reduction of a registration may be ordered by a judgment in the
case of a general legal hypothec, or of a judicial hypothec, if it is
shown that the registration can be restricted as to the property
affected thereby without injuring the interests of the creditor.
(2) The same rule shall apply in the case of a general
conventional hypothec created to secure a right contingent upon an
uncertain event, even though such hypothec may have been
covenanted before the 11th February, 1870; and any renunciation
of the right to demand the reduction is void, unless it is made by a
public deed on a day subsequent to that of the instrument by which
the hypothec was created.
Value of 
immovable 
property to which 
the registration is 
to be restricted.
2063. (1) The reduction, however, shall not be ordered in any
of the cases referred to in the last preceding article, if the value of
the immovable property to which the debtor demands that the
registration should be restricted, does not exceed, by at least one-
half, the amount of the registered debt together with the interest
accrued due, and that which will become due up to five years from
the day of the reduction.
Cap. 12.
(2) It shall be lawful for the court to determine the value of the
aforesaid immovable property according to the rules laid down in
Sub-title III of Title II of Book Third of the Code of Organization
and Civil Procedure.
     CIVIL CODE            ġ CAP. 16.             353
Cancellation of 
registration may be 
ordered by judge-
ment.
2064.   The cancellation of a registration may also be ordered by
a judgment if it is not shown that the registration was made for a
lawful cause, or if it is shown that the right of the creditor is
extinguished.
Requirements of 
the note for 
reduction or 
cancellation of 
registration.  
Amended by: 
XII.1986.6.
2065.   For the purpose of effecting the reduction or cancellation
of a registration, there shall be presented to the Director of the
Public Registry a note containing the following particulars:
( a ) the progressive number and the year of the
registration;
( b ) an indication as to whether a reduction or the
cancellation of the registration is demanded;
( c ) an indication of the judgement, or deed, if any, under
which the reduction or cancellation is demanded.
Additional 
requirement in case 
of reduction.
2066.    Where the reduction of a registration is demanded, the
sum or property in respect of which the registration is to continue
to be operative shall be stated in the note.
By whom note for 
reduction or 
cancellation is to 
be signed.
2067.   Where the reduction or cancellation is demanded in
pursuance of a public deed, the note shall be signed by the notary
who has received or is the keeper of such deed, or is authorized to
give out copies thereof; where the reduction or cancellation is
demanded in pursuance of a judgment, the note shall be signed by
the registrar of the court by which the judgment was delivered.
Expenses for 
reduction or 
cancellation.
2068. (1) The expenses for the reduction or cancellation of a
registration shall be borne by the debtor.
(2) Nevertheless, if the cancellation is due to the absence of a
lawful cause for making the registration, the expenses shall be
borne by the person who caused such registration to be made.
(3) In the case referred to in article 2027 it shall be in the
discretion of the court to direct, according to circumstances,
whether such expenses are to be borne by the creditor or by the
debtor.
Sub-title VI
O F THE  E FFECT OF  P RIVILEGES AND OF  H YPOTHECS AGAINST 
T HIRD  P ARTIES IN  P OSSESSION
Rights of creditors 
against third 
parties in 
possession.
2069.   Creditors who have a privilege or hypothec which has
been registered retain over the immovables subject to the privilege
or hypothec their right to be ranked and paid according to the order
of the debts due to them or the registration thereof, into
whosesoever hands such immovables may pass.
Liability of third 
party in 
possession.
2070.   If the third party in possession has not complied with the
formalities prescribed for disencumbering his property, he remains,
in virtue of the registration legally made, liable as possessor for all
the hypothecary debts, and shall be entitled to any time or
354               CAP.16. ħ                CIVIL CODE
extension of time granted to the original debtor.
Other liabilities of 
third party in 
possession.
2071.   The third party in possession is bound, in the aforesaid
case, to surrender, without any reservation, the immovable charged
with the hypothec, unless he elects to pay all the hypothecary debts,
as each of them falls due, whatever their amount may be.
Creditors may 
demand sale of 
immovable 
charged with 
hypothec.
2072. (1) If the third party in possession fails to surrender the
immovable or to pay the debt fallen due, it shall be lawful for the
hypothecary creditor to demand judicially the sale of the
immovable charged with the hypothec after having by means of a
protest called upon the debtor to discharge the debt, and upon the
third party in possession either to discharge the debt or to surrender
the immovable.
(2) The said demand may not be made before the expiration of
thirty days from the service of the protest on the debtor and the
third party in possession.
When third party in 
possession may set 
up benefit of 
discussion.
2073.   A third party in possession who is not personally liable
for the debt may, by setting up the benefit of discussion, oppose the
sale of the immovable of which he is in possession, if there is in the
possession of the debtor or of his sureties or of other persons
personally, though not jointly and severally, liable for the debt,
other property subject to the same debt.
When benefit of 
discussion may not 
be set up.
2074.   The benefit of discussion may not be set up against a
creditor having a privilege or special hypothec over the immovable.
Option of third 
party in possession 
in certain cases.
2075.    Where the actual value of the improvements made in or
on the tenement by the third party in possession, exceeds the actual
value of the immovable without such improvements, the third party
in possession may elect either to pay the actual value of the
immovable without the improvements or to surrender the
immovable.
When third party in 
possession may 
surrender property.
2076.   The surrender of an immovable for the satisfaction of the
obligation to which it is subject, may be made by any third party in
possession who is not personally liable for the debt, wholly or in
part, and who is capable of alienating or has been duly authorized
for such purpose.
When third party in 
possession may 
take back 
immovable.
2077.   The surrender of the immovable until the sale thereof has
taken place, shall not prevent the third party in possession from
taking back the immovable on paying the whole debt and the costs,
even though the surrender may have taken place in execution of a
judgment.
How surrender of 
immovable is 
made.
2078.   The surrender of the immovable shall be made by means
of an act filed before the competent court.
Liability for 
deteriorations.
2079. (1) Any deteriorations caused in consequence of gross
negligence on the part of the third party in possession injuriously
affecting the interest of the hypothecary creditors, give rise to an
action for indemnity against him.
(2) He cannot claim reimbursement in respect of the expenses
and improvements made by him, except as provided under
paragraph ( b ) of article 2010.
     CIVIL CODE            ġ CAP. 16.             355
(3) He has no right of retention on account of improvements.
Fruits that are due 
by third party in 
possession.
2080.   The fruits of the immovable are not due by the third party
in possession except from the day on which he has been called upon
to surrender the immovable or to pay the debt; and if since that day
one year shall have elapsed before the judicial demand is made, the
fruits shall be due from the date of such demand.
Rights of 
easement ,  etc. ,  of 
third party in 
possession.
2081. (1) The easements and real rights which a third party in
possession had upon the immovable before he came into possession
thereof, shall revive after the surrender made by him or after the
adjudication which has taken place against him.
(2) If, however, such rights were rights of privilege or
hypothec, they are not ranked unless they have been registered.
Rights of creditors 
of third party in 
possession.
2082.   The third party’s own creditors shall exercise their rights
of hypothec over the immovable surrendered or sold, according to
the order of their respective registrations, after the creditors whose
claims shall have been registered against the former owners
previously to the alienation made by the latter, or within the times
mentioned in articles 2031 and 2033.
Rights of third 
party in possession 
against debtor and 
other third parties 
in possession.
2083. (1) The third party in possession who has paid the debt
or has surrendered the immovable or has been dispossessed thereof,
has a right to relief for eviction against the principal debtor.
(2) He can also maintain an action against other third parties in
possession of other immovables liable for the same debt, provided
such other third parties have acquired their immovables at a later
date than that on which he acquired his immovable.
Sub-title VII
O F THE  E XTINGUISHMENT OF  P RIVILEGES AND  H YPOTHECS
How privileges and 
hypothecs are 
extinguished.
2084.   Privileges and hypothecs are extinguished -
( a ) by the extinguishment of the principal obligation;
( b ) by the creditor’s renunciation of the privilege or
hypothec;
Cap. 12.
( c ) by the fulfilment of the formalities prescribed in Title
II of Part II of Book Second of the Code of
Organization and Civil Procedure;
( d ) by prescription.
When prescription 
in acquired by 
debtor.
2085.   Prescription takes place in favour of the debtor, in respect
of property of which he is in possession, by the lapse of the time
established for the prescription of the debt to which the privilege or
hypothec refers.
356               CAP.16. ħ                CIVIL CODE
When prescription 
is acquired by third 
party in 
possession.
2086.   As to property which is in the possession of a third party,
prescription takes place in favour of such third party by the lapse of
ten years from the day on which he acquired such property, even
though the creditor may not have known that such property had
passed into the hands of a third party.
Registration not to 
interrupt 
prescription.
2087.    The registration caused to be made by the creditor shall
not interrupt the running of prescription in favour of the debtor or
of the third party in possession.
Sub-title VIII
O F THE  O RDER OF  P RIORITY OF  P RIVILEGES AND  H YPOTHECS
General rule of 
priority among 
creditors having 
privileges of a 
different nature.
2088.    Among privileged debts priority is regulated according to
the particular nature of each privilege.
Priority given to 
certain general 
privileges.
2089.   Debts having a general privilege for any of the causes
mentioned in paragraphs ( a ),   ( b ) and ( c ) of article 2003 are paid in
preference to those having any other privilege, excepting only the
debt due to the pledgee as provided in paragraph ( a )   of article 2009.
Priority given to 
certain other 
general privileges.  
Amended by: 
XI.1977.2.
2090.   Debts having a general privilege for any of the causes
mentioned in paragraphs   ( d ) and ( e ) of article 2003 are paid in
preference to those having any other privilege, excepting the debts
mentioned in paragraphs   ( a ), ( b ) and ( c ) of the said article, the debt
due to the pledgee as aforesaid, and the debt due to the hotel-keeper
as provided in paragraph ( b ) of article 2009.
Rule of priority in 
cases other than 
those mentioned in 
ss.2089 and 2090.
2091.  (1) Saving the provisions of the last two preceding
articles, in all cases of competition of privileged debts, differing in
degree, the order in which the privileges are set forth in articles
2003, 2009 and 2010 shall determine their respective priority.
(2) Nevertheless, the privilege of the seller, mentioned in
paragraph ( d ) of article 2009, shall not operate to the prejudice of
the privilege of the  dominus  or of the lessor, mentioned in
paragraph ( e ) of the said article; the right of the seller mentioned in
article 1439 shall not operate to the prejudice of the debts
mentioned in paragraphs ( a ),   ( b ) and ( c ) of article 2009; and the
debt mentioned in paragraph ( b ) of article 2010, if it is in respect of
necessary repairs for the preservation of the tenement, shall have
preference over the debt due to the  dominus .
Hypothecary debts 
to be paid 
according to the 
order of 
registration.
2092 .   Hypothecary debts are paid according to the order of
registration, saving the provisions of sub-article (2) of article 2033.
     CIVIL CODE            ġ CAP. 16.             357
Hour of 
registration not to 
create priority 
among hypothecs 
registered on the 
same day.
2093.    Hypothecs registered on the same day confer on the
creditors an equal rank, without any distinction between
registrations made at different hours of the same day.
Privileged debts in 
the same rank to be 
paid ratably.
2094.   Privileged or hypothecary debts in the same rank, are paid
ratably.
Expenses 
accessory to debt 
to rank with debt.
2095.   In the same rank in which a debt is placed, there shall be
placed also the interest accruing on that debt, the expenses of
registration, and the expenses, if any, incurred for the judicial
acknowledgment of the debt unless the latter are otherwise
privileged.
Title  XXIV
O F THE  B ENEFIT OF  S EPARATION OF  E STATES
Definition.
creditors of a deceased person and his legatees have, to demand
that the property, both movable and immovable, of the inheritance
be separated from the particular property of the heir, and applied to
the payment of their respective debts or legacies with preference
over all the heir’s own creditors.
Effects of benefit.
entitled to it is only that of protecting them against any prejudice
which they might sustain in regard to the property of the
inheritance in consequence of the claims of the particular creditors
of the heir; and such benefit maintains in favour of all and each of
them, in competition, such rights only as are competent to them
respectively, according to the nature and the conditions of their
debts or other rights over the property of the inheritance.
Time within which 
it may be 
exercised.
2098.   The right to exercise the said benefit ceases unless it is
exercised within one year from the day of the opening of the
succession.
Alienation of 
hereditary property 
before benefit is 
exercised ,
2099.   Any alienation of hereditary property, whether movable
or immovable, made by the heir, even during the course of the said
time, before such benefit is exercised, shall remain unimpaired; but
in any such case the benefit may be exercised over the price which
may be still due.
or after benefit is 
exercised.
2100. (1) Any alienation of movables made by the heir shall
remain unimpaired, even if made after the benefit has been
exercised, saving the provisions of the law relating to the alienation
of litigious things.
(2) Immovables, however, alienated after the benefit aforesaid
has been exercised, continue to be subject to the rights of the
creditors of the deceased and to those of his legatees.
How benefit is 
exercised.
2101. (1) The said benefit is exercised by means of a judicial
358               CAP.16. ħ                CIVIL CODE
demand.
(2) As regards immovables, however, the registration of the
benefit takes the place of such demand.
Contents of note 
for registration.
2102. (1) For the purpose of effecting the registration of the
benefit of the separation of estates, there shall be presented to the
Director of the Public Registry a note containing -
( a ) the particulars set forth in paragraphs ( a ), ( b ), ( c ), ( d ),
( e ) and ( f ) of article 2042;
( b ) a demand for the registration of the benefit of the
separation of the estate of the deceased debtor from
that of his heirs.
(2) The provisions of articles 2043 to 2047 and 2049 to 2052
shall apply to the registration of this benefit.
Effects of 
registration.
2103.   The registration of the aforesaid benefit effected within
three months of the day of the opening of the succession shall be
operative as from such day in regard to immovables alienated
within the said time.
When benefit 
cannot be 
exercised.
2104. (1) The benefit of the separation of estates cannot be
exercised if there has been novation by acknowledging the heir as
the debtor.
(2) The benefit shall not operate except in favour of the persons
exercising it.
(3) It may be exercised in regard to all the property
indiscriminately or for the separation of one or more things
specified in the demand.
Creditors of heir 
cannot demand 
benefit.
2105.   The creditors of the heir cannot demand the separation of
estates against the creditors of the inheritance.
Saving as to 
successions opened 
before 11th 
February, 1870.
2106.   The benefit of the separation of estates in regard to
successions opened before the 11th February, 1870 shall continue
to be regulated by the laws in force at the time of the opening of
such successions.
Title  XXV
O F  P RESCRIPTION
G ENERAL  P ROVISIONS
Definition of 
prescription.
2107. (1) Prescription is a mode of acquiring a right by a
continuous, uninterrupted, peaceable, open, and unequivocal
possession for a time specified by law.
(2) Prescription is also a mode of releasing oneself from an
action, when the creditor has failed to exercise his right for a time
specified by law.
Renunciation 2108. (1) Prescription cannot be renounced beforehand, nor
     CIVIL CODE            ġ CAP. 16.             359
shall it be lawful to establish a time for prescription longer than
that specified by law.
(2) Prescription already acquired may be renounced.
may be expressed 
or tacit.
2109. (1) Renunciation of prescription is express or tacit.
(2) Tacit renunciation is inferred from a fact which implies the
abandonment of the right acquired.
Persons who 
cannot renounce 
prescription 
already acquired.
2110.   A person who is under disability to alienate cannot
renounce a prescriptive right already acquired.
Plea of prescription 
to be set up by 
party.
2111.    The court cannot of its own motion give effect to
prescription, where the plea of prescription has not been set up by
the party concerned.
When it may be set 
up.
2112.   Prescription may be set up at any stage of the
proceedings, even on appeal.
By whom it may be 
set up.
2113.   Creditors and other persons having an interest in giving
effect to prescription may set up the plea of prescription, even
though the debtor or the possessor shall have renounced it.
Things not subject 
to prescription.
2114.   Prescription does not take place in regard to things which
are  extra commercium .
Things to which 
prescription 
applies.  
Amended by: 
L.N. 148 of 1975.  
2115. (1) Prescription applies to rights and actions vested in
any person, institution, or body corporate, indiscriminately, as well
as to property subject to entail.
(2) Nevertheless, prescription may not be set up against any
right or action of the Government of Malta, except in the cases
mentioned in articles 2149, 2153, 2154, 2155 and 2156.
Applicability of the 
provisions of this 
Title. 
2116.   The provisions of this Title shall apply, unless otherwise
provided in other parts of this Code or in other laws.
Prescriptions 
commenced before 
the 11th February, 
1870.
2117. (1) Prescriptions commenced before the 11th February,
1870 shall be governed by the law then in force.
(2) Nevertheless, prescriptions commenced before the
aforesaid day, and for the completion of which, according to the
law then in force, a period of time longer than that fixed by this
Code had yet to run, shall be completed by the lapse of the period
fixed by this Code to be reckoned from the said day.
(3) No period of time elapsed previously to the said day shall
be computed for the prescription of things or actions which,
according to the law then in force, were not subject to prescription,
and which have become so subject in virtue of this Code.
Prescription and 
arbitration 
proceedings.
Added by:
II. 1996.78
Cap. 387.
2117A. With regard to prescription, the referral of any matter to
arbitration in accordance with the provisions of the Arbitration Act
shall have the same effect as a judicial action before a competent
court.
360               CAP.16. ħ                CIVIL CODE
Sub-title I
O F THE  C AUSES WHICH  P REVENT  P RESCRIPTION
Persons holding on 
behalf of others 
cannot prescribe in 
their own favour ,
2118.    Persons who hold a thing in the name of others or the
heirs of such persons, cannot prescribe in their own favour: such
are tenants, depositaries, usufructuaries, and, generally, persons
who hold the thing not as their own.
but may do so upon 
change of title. 
2119.   The persons mentioned in the last preceding article may,
nevertheless, prescribe, if their title is changed by a cause flowing
from a third party, or by the opposition which they may have made
to the right of the owner.
Persons acquiring 
from tenant ,  etc. ,  
may prescribe.
2120.    Any person to whom a tenant, depositary, or other mere
holder has transferred the thing under a title capable of transferring
ownership, may prescribe.
Prescription 
against own title.
2121. (1) No one can prescribe against his own title, in the
sense that no one can change, in regard to himself, the cause for
which he holds the thing.
(2) Nevertheless, a person may prescribe against his own title,
in the sense that he may by prescription obtain his discharge from
an obligation.
Sub-title II
O F THE  C AUSES WHICH  S USPEND  P RESCRIPTION
Prescription runs 
against any person 
generally.  
2122.    Prescription runs against - 
( a ) an absentee;
( b ) a vacant inheritance even though a curator has not
been appointed thereto;
( c ) the heir during the time for making up the inventory or
for deliberating; and
( d ) generally, any other person not included in the
exceptions laid down in the following articles.
Exceptions. 
Amended by: 
XLVI.1973.107;
XXI.1993.2.
2123.    Prescription does not run -
( a ) as between spouses;
( b ) as between the parent and the child subject to parental
authority;
( c ) as between the person under tutorship or curatorship
and his tutor or curator until the tutorship or
curatorship ceases, and the accounts are definitely
rendered and approved;
( d ) as between the heir and the inheritance entered upon
inventory.
     CIVIL CODE            ġ CAP. 16.             361
Minors ,  persons 
interdicted ,  etc.
2124.  (1) Save as otherwise provided by law, prescription does
not run against minors and persons interdicted.
(2) Nor does it run, during the continuance of the marriage,
against a married woman, in any case in which the action
competent to the wife, if exercised, would vest the defendant with a
right of relief against the husband.
Other cases of 
suspension of 
prescription.
2125.   Prescription is likewise suspended -
( a ) in regard to conditional rights, until the condition is
fulfilled;
( b ) in regard to actions for breach of warranty, until
eviction takes place;
( c ) in regard to any other action the exercise of which is
suspended by a time, until such time expires.
Prescription 
continues after 
cessation of cause 
of suspension.
2126.   Prescription commenced and suspended shall continue to
run as soon as the cause of suspension shall cease. 
Sub-title III
O F THE  C AUSES WHICH  I NTERRUPT  P RESCRIPTION
Interruption of 
prescription by 
eviction of 
possessor ,  
2127.   Prescription is interrupted when the possessor is deprived,
for more than one year, of the enjoyment of the thing, whether by
the owner or by a third party.
by judicial act.
the name of the owner or of the creditor, served on the party against
whom it is sought to prevent the running of prescription, showing
clearly that the owner or creditor intends to preserve his right.
Interruption 
operative even if 
act is irregular ,  etc.
2129.    The interruption shall be operative even though the
demand, protest, or other judicial act is null owing to a defect in its
form, or is filed before a court which is not the competent court.
Time within which 
act is to be served.
2130. (1) No interruption takes place if the act is not served
before the expiration of one month to be reckoned from the last day
of the period of prescription.
Cap. 12.
(2) Nevertheless, if the party to be served is absent from Malta,
service shall be deemed to be effected by the publication of a notice
in the Government Gazette, within a month to be reckoned from the
last day of the aforesaid period, on the demand of the party filing
the act, as provided in the Code of Organization and Civil
Procedure.
(3) The said notice shall contain a summary of the act of
interruption, and shall be signed by the registrar of the court before
which the act has been filed.
362               CAP.16. ħ                CIVIL CODE
Interruption by 
judicial demand. 
Cap. 12.
2131.   Prescription is interrupted by a judicial demand, even
though such demand has not been notified to the defendant on
account of his absence or for any other lawful cause, provided the
plaintiff has continued the proceedings against a curator appointed
by the court according to the provisions of the Code of
Organization and Civil Procedure, and has obtained a judgment on
such demand.
Interruption to be 
inoperative if 
action is 
withdrawn ,  etc.
2132. (1) The interruption of prescription made by means of a
judicial demand shall be deemed inoperative if the plaintiff
withdraws the action or if the action is deserted, or dismissed.
(2) With regard to the withdrawal or the dismissal of an action,
the provisions of this article shall not apply in cases where the
plaintiff can, according to law, re-institute the action, provided
such action is so re-instituted before the same or another court
within one month from the day of its previous withdrawal or
dismissal, and service thereof is effected in the manner and within
the times established in the two preceding articles, as the case may
be.
Interruption by 
acknowledge-
ment ,
2133.   Prescription is interrupted if the debtor or possessor
acknowledges the right of the party against whom such prescription
had commenced.
by payment on 
account.
2134.   Prescription is also interrupted by a payment on account
of the debt, made by the debtor himself or by a person acting in his
behalf.
Effects of 
interruption in 
regard to surety.
2135.   The acknowledgment of the debt made by the principal
debtor, or any other act which interrupts prescription as against
such debtor, shall also be effectual as an interruption against the
surety, saving, where the surety has bound himself jointly and
severally with the principal debtor, the provisions of articles 1100
and 1101.
Period already 
elapsed not to be 
reckoned.
2136. (1) Where prescription is interrupted, the portion of the
prescriptive period already elapsed shall not be reckoned for the
purpose of prescribing.
(2) Prescription, however, may commence anew.
Sub-title IV
O F THE  T IME  R EQUIRED FOR  P RESCRIPTION
Commencement of 
prescription.
2137.   Subject to any other provisions of the law, the
prescription of an action commences to run from the day on which
such action can be exercised, irrespective of the state or condition
of the person to whom the action is competent.
Reckoning of 
prescriptive period.
2138. (1) Prescription is reckoned by whole days, and not by
hours.
(2) The days are running days: the months are reckoned
according to the calendar.
     CIVIL CODE            ġ CAP. 16.             363
When prescription 
is completed.  
Amended by: 
XI.1977.2.
2139. (1) Prescription is completed immediately upon the
expiration of the last day of the prescriptive period.
(2) Nevertheless, if the last day is a Saturday or a public
holiday, prescription shall be completed upon the expiration of the
next following day, not being a Saturday or a public holiday.
§  I. O F  P RESCRIPTION OF  T EN ,   T HIRTY AND  F ORTY YEARS
Prescription of ten 
years.
2140.  (1) Any person who in good faith and under a title
capable of transferring ownership possesses an immovable thing
for a period of ten years acquires ownership thereof.
(2) If the title derives from an act which, according to law,
must be registered in the Public Registry, the prescriptive period
does not commence to run except from the day of the registration of
such act.
Good faith.
but must continue during the whole prescriptive period.
Bad faith of 
predecessor does 
not prejudice 
successor.
2142.  (1) The bad faith of a previous possessor does not
prejudice his successor, whether universal or singular.
(2) Nevertheless, in any such case the successor may not, for
the purposes of prescription, conjoin his possession with that of his
predecessor.
Limitation of real ,  
personal or mixed 
actions.
2143.   All actions, whether real, personal, or mixed, are barred
by the lapse of thirty years, and no opposition to the benefit of
limitation may be made on the ground of the absence of title or
good faith.
Prescription of 
forty years.
2144 . (1) The prescriptive period referred to in articles 2140
and 2143 shall not apply in the case of immovables subject to
entail, or of immovables or actions belonging or competent to
churches or other pious institutions.
(2) In the cases referred to in the said articles, prescription as
regards property or actions mentioned in sub-article (1) of this
article is only completed by the lapse of forty years, provided that
no opposition to the benefit of limitation may be made on the
ground of the absence of title or good faith.
Rights which 
cannot be 
exercised but 
seldom.
2145. (1) The provisions of the last preceding article shall also
apply in the case of a right, even if ecclesiastical, which cannot be
exercised but seldom.
(2) In any such case, however, the party pleading prescription
must, besides the lapse of forty years, prove also that, within such
period, there were at least three occasions on which such right
could have been exercised, and that on each occasion he exercised
such right, or, as the case may be, that the party to whom such right
was competent failed on each occasion to exercise it.
364               CAP.16. ħ                CIVIL CODE
Obligation of 
debtor in the case 
of an annuity.
2146.  (1) After twenty-five years from the date of the last
writing, the debtor of an annuity or other yearly payment which is
to continue for more than thirty years may be compelled to give to
the creditor or to the person claiming under him, a new writing
containing an acknowledgment of the debt, or a declaration of the
payments made.
(2) The creditor may require such writing to be, at his expense,
made by means of a public deed.
§  II. O F CERTAIN  P ARTICULAR  P RESCRIPTIONS
Actions barred by 
the lapse of one 
year.
2147.    The following actions are barred by the lapse of one year: 
( a ) actions of masters and teachers of sciences or arts, for
lessons given by the day or by the month;
( b ) actions of keepers of inns, taverns or lodging-houses
for lodging and board furnished by them;
( c ) actions of domestic servants or other persons paid by
the month, of artificers or day-labourers for the
payment of their wages, salaries or the supplies due to
them;
( d ) actions of carriers by land or water referred to in
articles 1628 to 1631 for the payment of their hire or
wages.
Actions barred by 
the lapse of 
eighteen months.
2148.   The following actions are barred by the lapse of eighteen
months:
( a ) actions of tailors, shoemakers, carpenters, masons,
whitewashers, locksmiths, goldsmiths, watch-makers,
and other persons exercising any trade or mechanical
art, for the price of their work or labour or the
materials supplied by them;
( b ) actions of creditors for the price of merchandise,
goods or other movable things, sold by retail;
( c ) actions of persons who keep educational or
instructional establishments of any kind, for the
payment of the fees due to them;
( d ) actions of persons paid by the year for the payment of
their salary;
( e ) actions of brokers for brokerage fees;
( f ) actions of any person for the hire of movable things.
Actions barred by 
the lapse of two 
years.  
Amended by: 
L.N. 148 of 1975.
2149.   The following actions are barred by the lapse of two
years:
( a ) actions of builders of ships or other vessels, and of
contractors in respect of constructions or other works
made of wood, stone or other material, for the works
     CIVIL CODE            ġ CAP. 16.             365
carried out by them or for the materials supplied by
them;
( b ) actions of physicians, surgeons, obstetricians and
apothecaries for their visits or operations or for
medicines supplied by them;
( c ) actions of advocates, legal procurators, notaries,
architects and civil engineers, and other persons
exercising any other profession or liberal art, for their
fees and disbursements;
( d ) actions of procurators  ad litem  or other attorneys or
mandataries, for their remuneration, the expenses
incurred by them, indemnities due to them for losses
sustained, and for the reimbursement of advances
made by them;
( e ) actions of the Government of Malta for the payment of
judicial fees, customs or other dues.
Commencement of 
prescription in 
regard to actions of 
advocates ,  etc.
2150. (1) In regard to the said actions of advocates, legal
procurators or procurators  ad litem , the prescriptive period shall
commence to run from the day of the final decision or of the
compromise of the lawsuit or from the day of the cessation of their
mandate.
(2) For the purposes of this article, any act which, although not
forming part of the proceedings of the suit, is, nevertheless,
connected therewith, shall be deemed to be part of such
proceedings.
(3) In regard to fees for advice and to fees or expenses for
judicial letters, protests, warrants, applications or other acts or
services not connected with a suit pending or commenced within
two years from the day on which the advice, act or service has been
given or has taken place, the prescriptive period shall commence to
run from that day.
Continuation of 
supplies ,  etc.
2151. (1) In the cases referred to in the last four preceding
articles, prescription takes place, even though there may have been
a continuation of supplies, deliveries on credit, labour, services or
other work.
(2) Nevertheless, in such case, where the claim in respect of
such supplies, deliveries, labour, services, or other work is
evidenced by an approved account or other written declaration of
the debtor, the action shall not be barred except by the lapse of five
years to be reckoned from the date of such account or declaration.
Limitation of 
actions against 
advocates and legal 
procurators in 
connection with 
papers delivered to 
them.
2152. (1) Advocates and legal procurators are released from
any obligation to account for papers relating to lawsuits or advice
on the expiration of one year from the day when such lawsuits have
been decided or otherwise disposed of, or such advice given.
(2) They are likewise released from any obligation to account
for any papers which may have been delivered to them for the
purpose of commencing a lawsuit, on the expiration of two years
from such delivery, if within such time the lawsuit has not been
366               CAP.16. ħ                CIVIL CODE
commenced.
(3) They may, however, be called upon to declare on oath
whether they are in possession of such papers, or whether they
know where such papers are to be found.
Actions for 
damages not 
arising from 
criminal offence.
2153.    Actions for damages not arising from a criminal offence
are barred by the lapse of two years.
Actions for 
damages arising 
from criminal 
offence.  
Amended by: 
I.1870.8. 
Cap. 9.
2154. (1) With regard to the prescription of civil actions for
damages arising from criminal offences, the rules laid down in the
Criminal Code relating to the prescription of criminal actions shall
be observed.
(2) Nevertheless, any person who has stolen a thing, or who has
become the possessor thereof by means of an offence of fraud, or
who has received or bought such thing, knowing it to have been
stolen or fraudulently acquired, cannot prescribe for it,
notwithstanding any lapse of time.
Action for 
recovery of thing 
lost or stolen.
2155. (1) The action for the recovery from a third party of a
movable thing which has been lost or stolen, where such action is
competent under article 559, is barred by the lapse of two years, if
the third party received the thing in good faith.
(2) If he received it in bad faith the provisions of sub-article (2)
of the last preceding article shall apply.
Actions barred by 
the lapse of five 
years.  
Amended by: 
XXVII.1976.12. 
2156.   The following actions are barred by the lapse of five
years:
( a ) actions for payment of yearly ground-rent, perpetual or
life annuities, interest on annuities ad formam bullae
created before the 14th August, 1862 and for the
payment of fines due upon a sale or other alienation of
emphyteutical tenements;
( b ) actions for payment of maintenance allowances;
( c ) actions for payment of rent of urban or rural property;
( d ) actions for payment of interest on sums taken on loan
or for any other cause, and, generally, of any other
thing payable yearly or at other shorter periodical
terms;
( e ) actions for the return of money given on loan, if the
loan does not result from a public deed;
( f ) actions for the payment of any other debt arising from
commercial transactions or other causes, unless such
debt is, under this or any other law, barred by the lapse
of a shorter period or unless it results from a public
deed.
Action for 
rendering of 
accounts against 
tutor ,  curator ,  etc.
2157.   An action for the rendering of accounts against any tutor,
curator, mandatary, or other administrator, is barred by the lapse of
five years from the day of the cessation of the management, or by
the lapse of one year from the death of the tutor, curator,
     CIVIL CODE            ġ CAP. 16.             367
mandatary, or other administrator.
Plea of prescription 
may be set up 
against party 
paying for debtor.
2158.   The prescriptions established in articles 2147 to 2157 may
be set up even against the party who has paid for the debtor, unless
the payment was made on the demand or with the concurrence of
the debtor himself, or unless the payor was, as surety, or as a joint
and several debtor, or for any other cause, bound to pay.
Minors and 
persons 
interdicted.
2159.   Such prescriptions run against minors and persons
interdicted, saving their right to relief against the tutor or curator.
Debtor or his heirs 
or those claiming 
under him may be 
put on oath.
2160. (1) The prescriptions established in articles 2147, 2148,
2149, 2156 and 2157 shall not be effectual if the parties pleading
them, upon being put on oath, do not declare that they are not
debtors, or that they do not remember whether the thing has been
paid.
(2) If the oath is deferred to the heirs of the person whom the
plaintiff alleges to have been the debtor, or to parties claiming
under such person, the said prescriptions shall not be effectual if
such heirs or parties do not declare that they do not know that the
thing is due.
368               CAP.16. ħ                CIVIL CODE
SCHEDULE
Amended by: 
XIII.1932.3.
Substituted by: 
XXVIII.1948.2. 
Amended by: 
XXI.1962.19; 
XXXI.1965.23; 
VI.1972.3; 
XXX.1979.5; 
L.N. 161 of 1989. 
Substituted by:
L.N. 212 of 1997.
PART I
FEES
Fees to be levied under article 268.
Lm c
1. For the registration of an act of birth ......... 1.00
2. For the registration of an act of marriage ... 1.00
Note: For the payment of the fees respectively
established at paragraphs, 1 and 2, the parents of
the child, in the case of a birth, and the spouses, in
the case of a marriage, are liable  in solidum .
3. For the registration as provided in sub-
article (3) of article 290, of the legitimation of any
person whose act of birth is not registered in the
Public Registry. ............................................... 0.50
4. For any note ............................................. 0.50
5. For the inspection of any registration or
note whereof the date is indicated   ........................ 0.50
6. ( a ) For every search for entries against a
particular individual, with or without a perusal
thereof .................................................................. 0.05
( b ) For every certificate attesting that no
entry exists in Civil Status Records in respect of a
particular individual including the fee for the
search ................................................................... 2.00
7. ( a ) For every extract from a registered act
of birth, marriage, death or entry in the Adopted
Persons Register in accordance with Forms I, K,
M, O in Part II of the Schedule to this
Code......................................................................  0.50
( b ) For every extract from a registered act
of birth, marriage, death or entry in the Adopted
Persons Register in accordance with Forms J, L, N,
P in Part II of the Schedule to this Code ................. 0.50
( c ) For every certificate containing a copy
in full of a registration of birth, marriage or death
with such notes as may be appended thereto ........... 2.00
8. For an entry in the Adopted Persons
Register ................................................................ 1.00
     CIVIL CODE            ġ CAP. 16.             369
PART II
FORMS 
Amended by: 
L.N. 148 of 1975;
XXX. 1995.5.
FORM A
ġARTICLE 195ħ
EDICT FOR INFORMATION RESPECTING AN 
ABSENT PERSON
REGISTRY OF THE CIVIL COURT ,  SECOND HALL
                                                               ...................19     
  Whereas................. has, by an application filed on the ..................
applied for the appointment of a curator to ....................., ( or ,  as
the case may be , for the opening of the secret will of ..................,
or  for a declaration that the public will of  ................. be
accessible,  or  that the applicant himself be put into provisional
possession of the property of .......................) who is alleged to
have since the ................... ceased to appear in Malta, without any
news of him having been received.
Whosoever has any news of the existence of the said ................. ,
is required to communicate it to the undersigned Registrar of the
Civil Court, Second Hall, for the information of the said Court,
within one month from the day of the publication of this present
edict in the Government Gazette.
                                                             By order of the Court,
                                                                              Registrar.
Amended by: 
L.N. 148 of 1975.
FORM B
ġARTICLE 254ħ
NOTICE
REGISTRY OF THE CIVIL COURT ,  FIRST HALL
                                                                         ..................19
Whereas ................. has filed a writ of summons demanding
correction of the registration ( or  the cancellation of the registration
or  the registration) of his birth,  or  of his marriage,  or  of the death
of .................
Whosoever may have an interest therein, and wishes to oppose
that demand, is hereby called upon to do so, by means of a note to
be filed in the above-mentioned Registry within fifteen days from
the day of the publication of this present notice in the Government
Gazette. 
 Those who, within the aforesaid time, shall have filed such note,
shall be notified, by the service of a copy of the said writ of
summons, of the day which will be appointed for the hearing of the
cause.
                                                             By order of the Court,
                                                                              Registrar.
370               CAP.16. ħ                CIVIL CODE
Added by: 
VII.1985.4. 
Amended by: 
XII.1986.7.
FORM BB
ġARTICLE 281ħ
Registry of the Court of Revision of
Notarial Acts
          ......................... 19......
Whereas AB has given notice of his birth/the birth of CD, a child
whose mother and maternal grandparents are dead/cannot be found,
claiming that he/the said CD was born on
...........................at........................ and that his mother is
.................... a daughter of .................... born at ........................ on
.......................
Whoever may have an interest to oppose such registration, is
hereby called upon to do so, by means of a note filed in the above-
mentioned Registry within fifteen days from the date of publication
of this notice.
Anybody who within the aforesaid time shall have filed such
note, shall be notified of the day appointed for hearing by the
undersigned Visitor who shall hear on oath every person in
possession of information on the matter.
By order of the Court,
                                                                  E.F.
Visitor of Notarial Acts.
     CIVIL CODE            ġ CAP. 16.             371
372               CAP.16. ħ                CIVIL CODE
     CIVIL CODE            ġ CAP. 16.             373
374               ħ             
     CIVIL CODE            ġ CAP. 16.             375
FORM F
ġARTICLE 296ħ
CERTIFICATE OF DEATH
....................................., 19..
To.............. , officer entrusted with the drawing up of acts of death, in Valletta.
I do hereby certify ( stating whether from personal knowledge or from information
obtained from other persons ,  and ,  in the latter case ,  from whom ) that.............. ,
whom I attended as physician, during his last illness, died of................ , on
the................ , in his house at No ............in ................: and that the death took place
at............o’clock ............ m.
( Signature )
Physician.
376               CAP.16. ħ                CIVIL CODE
     CIVIL CODE            ġ CAP. 16.             377
378               ħ             
     CIVIL CODE            ġ CAP. 16.             379
Added by: 
XXXI.1965.23.
Substituted by: 
XXI.1993.85.
FORM J 
ġ A T I L E  251ħ
EXTRACT from entry No . . . . . . . . . . . . of the Year . . . . . . . . . . .
in the Civil Status Records relative to Acts of Birth and the
Valletta, Malta/Victoria, Gozo, in accordance with the provisions
of the Civil Code (Cap. 16).
Date of birth:
Name and Surname:
PUBLIC REGISTRY OFFICE - MALTA/GOZO
                                 DIRECTOR
CAP.16. ħ     CIVIL CODE
     CIVIL CODE            ġ CAP. 16.             381
Added by: 
XXXI.1965.23. 
Amended by: 
XXI.1993.85.
FORM L 
ġARTICLE 251ħ
I, the undersigned, do hereby certify that the following is a true
extract from Act of Marriage No.     registered in the Public
Registry Office, Valletta, Malta/Victoria, Gozo, in accordance with
the provisions of the Civil Code (Cap. 16).
Name and surname of husband:
Name and maiden surname of wife:
Place of marriage:
Date of marriage:
The wife chose to retain her surname on marriage ( delete where
not applicable )
PUBLIC REGISTRY OFFICE - MALTA/GOZO
                                  DIRECTOR
382               CAP.16. ħ                CIVIL CODE
Added by: 
XXXI.1965.23.
FORM M
ġARTICLE 251ħ
Deleted by article 85 of Act XXI of 1993.
     CIVIL CODE            ġ CAP. 16.             383
Added by: 
XXXI.1965.23. 
FORM N
ġARTICLE 251ħ
Deleted by article 85 of Act XXI of 1993.
384               CAP.16. ħ                CIVIL CODE
     CIVIL CODE            ġ CAP. 16.             385
Added by: 
XXXI.1965.23.
FORM P 
ġARTICLE 251ħ
I, the undersigned, do hereby certify that the following is a true
extract from Act of Death No.      registered in the Public Registry
Office, Valletta, Malta/Victoria, Gozo, in accordance with the
provisions of the Civil Code (Cap. 16).
Name and surname of deceased: 
Place and date of death:
Age (years):
PUBLIC REGISTRY OFFICE - MALTA/GOZO
                                DIRECTOR
386               CAP.16. ħ                CIVIL CODE
     CIVIL CODE            ġ CAP. 16.             387
Added by: 
XXXI.1965.23. 
Amended by: 
XXX.1995.7. 
PART III
ġARTICLE 257ħ
Particulars regarding corrections of Acts of Civil Status
ACT OF BIRTH
( a ) Date of the Act;
( b ) Place of birth of the child;
( c ) Sex of the child;
( d ) Names given to the child;
( e ) Name or names by which the child is to be called;
( f )  Age and place of birth and residence -
(i) of the parents of the child; and
(ii) of the person making the declaration;
(g) Name and surname of the grandfathers of the child and of the
father of the person making the declaration;
( h ) Whether the grandfathers of the child or the father of the
person making the declaration are living or dead;
( i ) All the particulars of the witnesses, if any.
ACT OF MARRIAGE
( a ) Date of the Act;
( b ) Name and surname (wherever they may occur), date and
place of birth and residence of the husband and of the wife;
( c ) Name and surname of father and name, surname and maiden
surname of mother of the husband and wife;
( d ) All the particulars of the witnesses;
( e ) The church, chapel, or other place where the marriage took
place.
ACT OF DEATH
( a ) Date of the Act;
( b ) Name and surname of the deceased;
( c ) Whether the deceased was married or unmarried, widower or
widow;
( d ) Age, place of birth and residence of the deceased;
( e ) Name and surname of parents of the deceased, and whether
they are living or dead;
( f ) The place and cause of death, and place of burial;
( g ) All the particulars of the witnesses, if any.
