The substratum of Maltese contract law is the Theory of Autonomy of the Will which emphasises the freedom of one’s will when entering into a contract. Hence, ‘the consent of the contracting parties is an essential prerequisite for the formation of a contract.’ The law does not define ‘consent’ however Laurent opines that it is ‘the meeting of two wills to produce an obligation and a corresponding right.’ However, the law does recognise vices which may vitiate consent, these being error, violence and fraud as stated in Article 974 of the Civil Code. Once these vices are present, the contract may be nullified.
Nicholas B. states that violence is ‘a constraint, physical or moral, placed on the will of a person, which induces him to consent.’ It is moral violence which brings about relative nullity. In fact, Pacifici-Mazzoni states that ‘the contract would still exist until it is annulled by the contracting party whose consent is defective.’
Under Roman law, vis compulsiva (moral violence) is when someone unjustly threatens someone to contract in any type of transaction, resulting in two alternatives: i) the conclusion of the contract, ii) to undergo the threatened injury. Hence, as emphasised in Vincent Cachia vs. Carmelo Cachia on 15th February 1957:
‘… someone would not be free to choose or to do what they wish, but in order to avoid serious harm to themselves or to their close relatives, they choose and do what someone else wants, and consequently, the freedom in their action is diminished, and therefore it can never be considered voluntary.’
According to jurists, there are three conditions for violence to be effective, as stated in the Calcedonia Pace vs. Patrick Pace on 13th July 2020:
‘For violence to be sufficient to nullify consent, it must be determining, serious, and, above all, unjust — to the extent that it provokes in a reasonable person a fear of being exposed, or of exposing a relative, to harm to their property or to their person.’
Firstly, the violence must be determining meaning that there is a nexus between the violence and the consent of the party. Secondly, it must be unjust as the threat is not provided for by law.
Lastly, the violence must be grave enough to ‘produce an impression upon a reasonable person.’ The Courts have adopted a subjective test whereby it takes account of the reasonable man with the same sex, age and condition of the threatened person in order to determine the gravity of the violence.
Violence practiced by a third party is also considered as a ground of nullity as stated in Article 977(1) of Civil Code, provided there is a nexus between the violence of the third party and the conclusion of the transaction. This is because the effect is the same nonetheless; “la volonta` non e` libera, il consenso non pieno.” (Marcade, ‘Spiegazione Teorico-Pratica del Codice Napoleone’, Vol. II. Parte II, Palermo, (1858), 280). The other contracting party being in good faith and unaware of the violence is irrelevant as once violence is present, the contract may be annulled.
This differs from fraud as fraud practiced by a third party without the awareness of the other contracting party is not sufficient to nullify the contract as reflected in Article 979(1) of the Civil Code which states that fraud must be carried out by one of the contracting parties, whether active or passive. Unless the third party and the contracting party were accomplices, a contract may not be annulled due to the fraudulent intent of a third party. This was affirmed in the Vincenzo Domenico Magri vs. Comte. Emmie. Farrugia et decided on 9th December 1921 by the Court of Appeal.
Fraud is composed of a person being induced ‘into an error by means of a misrepresentation or a suppression of the truth, made with the intention … to obtain an unjust advantage … in the process of making a contract.’ (Saul Litvinoff). This results in the relative nullity of the contract. Fraud must maintain four elements: the intention to deceive, be performed by one of the contracting parties, be grave and determining – the latter two are the same as in violence.
Firstly, one must have the fraudulent intent which Servius defines as ‘a scheme for the purpose of deceiving another party, where one thing is pretended and another is done.’ Hence, there must be a nexus between the fraudulent intent and the injured party’s consent. Secondly, the fraud must be grave enough to prevail over the good faith of another party. Here, the reasonable man test is used. However, the subjective test adopted in cases of violence is not applied but the Court measures the aggrieved person up against the prudence and diligence of a bonus paterfamilias.
Furthermore, just like violence, the fraud must be determining meaning that had this been absent, the victim would not have negotiated. Lastly, the fraud must have been carried out by one of the parties in the contract and not a third party. If good faith is proven by the contracting party, then the contract will continue to stand. This is another difference from violence as in the latter, a contract will automatically be annulled once it is proven; whether the contracting party was in good faith or not. Moreover, just like in the case of violence, the person alleging the fraud bears the burden of proof as confirmed in Anna Vassallo gja Spiteri vs. Mario Spiteri (7th December 2023) whereby the Court stated:
‘It is well established that the necessary requirements for a contract to be valid are the capacity of the parties to contract, consent, a certain thing as the object of the contract, and a lawful cause for assuming the obligation.
Any contract or agreement benefits from a presumption of sincerity and genuineness. Whoever wishes to rebut this presumption must provide conclusive and persuasive evidence of the alleged defect. …’
Conclusively, one cannot bring an action of both violence and fraud. This is because, in fraud, one is not aware of their actions due to the deception while in violence, one is completely aware of their actions. This was confirmed in Maria Speranza Buttiġieġ et vs. Cutajar JS (Holdings) Limited (25th June 2019) whereby the Court did not uphold the claim of violence as fraud was used as a vice of consent and hence, these could not be present at the same time.
Written by Laia Mangion