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Maltese Laws |
A 741
I assent.
(L.S.) EDWARD FENECH ADAMI President
4th August, 2006
AN ACT to to implement various measures relating to judicial proceedings.
BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows:
(2) This Act shall come into force on such date as the Minister responsible for justice may by notice in the Gazette appoint, and different dates may be so appointed for different purposes and for different provisions of this Act.
(a) in Book Second, in Part I, for the words from ''Title VII'' to Articles ''389-395'' there shall be substituted the following:
Short title and commencement.
Amendment of arrangement of Code.
''Title VII Of the Enforcement of Judgments and other
Executive Titles
252-395
General Provisions 252-281
A 742
Sub-title I Of the Warrant of Seizure of Movable Property 282-293
Sub-title II Of the Warrant of Seizure of Immovable
Property
294-300
Sub-title III Of the Warrant of Seizure of a Commercial
Going Concern
301-312
Sub-title IV Of Judicial Sales by Auction 313-357
Sub-title V Of Court Approved Sales for Aircraft, Ships and Vessels
358-364
Sub-title VI Of the Executive Garnishee Order 375-383
Sub-title VII Of the Warrant of Ejectment or Expulsion from
Immovable Property
384
Sub-title VIII Of the Warrant In Factum 385-388
Sub-title IX Of the Warrant of Executive Detention of
Aircraft
388A-388B
Sub-title X Of the Warrant of Executive Arrest of Sea
Vessels
388C-388D
Sub-title XI Of the Warrant In Procinctu 388E
Sub-title XII Of the Rendering of Accounts and Liquidation of Fruits
389-395'';
and
(b) in Book Third, for the words from ''Title VI'' to ''Of the Meditatio Fugae Warrant'' there shall be substituted the following:
''Title VI Of Precautionary Acts 829-877
General Provisions 829-838B Sub-title I Of the Warrant of Description 839-845
Sub-title II Of the Warrant of Seizure 846-848
Sub-title III Of the Warrant of Seizure of a Commercial
Going Concern
848A-
848B
Sub-title IV Of the Garnishee Order 849-854
Sub-title V Of the Warrant of Detention of Aircraft 855-864
Sub-title VI Of the Warrant of Arrest of Sea Vessels 865-872C
Deletion of sub- heading in Title VII.
Sub-title VII Of the Warrant of Prohibitory Injunction 873-877''.
A 743
Substitution of article 273 of the Code.
''Executive acts.
(a) warrant of seizure of movable property;
(b) warrant of seizure of immovable property;
(c) warrant of seizure of a commercial going concern;
(d) judicial sale by auction of movable or of immovable property or of rights annexed to immovable property;
(e) executive garnishee order;
(f) warrant of ejection or eviction from immovable property;
(g) warrant in factum;
(h) warrant of detention of aircraft;
(i) warrant of arrest of sea vessels;
(j) warrant in procinctu.''
(a) in the proviso to subarticle (1) thereof, for the words
''is also to append his own signature'' and ''to obtain beforehand such authorisation'' there
shall be substituted the words ''shall append his own signature'' and ''to obtain such authorisation''
respectively; and
(b) in subarticle (2) thereof, for the words ''or the thing due in virtue of the title'' there shall
be substituted the words ''and, or the article due in virtue of the title, and also such remedies and, or provisions that
are being demanded''.
Amendment of article 274 of the Code.
Renumbering and amendment of article 278 of the Code.
A 744
(a) in subarticle (1) thereof, for the words from ''The marshal may,'' to ''break open''
there shall be substituted the words ''The court executing officer may, in connection with the execution of any warrant
committed to him, after calling in two witnesses, exercise all such powers as are reasonably required of him to execute the warrant,
which includes the breaking open of'';
(b) immediately after subarticle (1) thereof there shall be added the following new proviso:
''Provided that in the case of a warrant of detention of aircraft, the powers of the court executing officer shall not include
the breaking open of any external or internal aircraft doors or any other damage to the aircraft.'';
(c) in subarticle (2) thereof, for the words from
''Nevertheless,'' to ''the marshal'' there shall be substituted the words ''In the
case of any warrant for the seizure of any property of the Government of Malta, the court executing officer''; and
(d) immediately after subarticle (2) there shall be added the following new subarticle:
Renumbering of article 279 of
the Code.
Renumbering and substitution of article 280 of the Code.
''(3) The Prime Minister may from time to time by regulations establish a list of property pertaining to the State which may not be the subject of an executive or a precautionary warrant.''.
''Time for execution of warrants
and orders.
A 745
(2) Regulations made under this article may also provide for such cases in which the execution of a warrant or an order is allowed
to take place other than during the prescribed time, the method of execution and the statements which have to be included in the
certificate of service:
Provided that, for reasons of urgency to be confirmed on oath by the applicant, the court may allow the execution of any warrant or
order other than during the prescribed time.''.
(a) in subarticle (1), for the words ''The marshal shall deliver a copy of the warrant or order'' there shall
be substituted the words ''The court executing officer shall deliver a copy of the warrant or order at the first available
opportunity''; and
(b) in subarticle (2) thereof, for the words ''Unless the court shall otherwise direct, the marshal'' there
shall be substituted the words ''Unless the court shall otherwise direct, or unless otherwise prescribed by the Minister
responsible for justice as prescribed in article 277(2), the court executive officer''.
(a) for the words ''The nullity'' there shall be substituted the words ''Where the basis of nullity
is not of a grievous nature, the nullity''; and
(b) for the word ''marshal'' wherever it appears, there shall be substituted the words ''court executing
officer''.
281 of the Code and there shall be substituted the following new
Renumbering and amendment of article 280 of the Code.
Renumbering and amendment of article 282 of the Code.
Renumbering of article 283 of
the Code.
Renumbering and substitution of article 283A of the Code.
A 746
article therefor:
''How executive acts may be impugned.
Appeal from decree.
(2) The application shall be served on the opponent who shall, within ten days, file a reply containing all submissions which
such opposite party may wish to make together with all documents sustaining the reply which are within its ability to file:
Provided that the court may, in urgent cases, reduce the period referred to in this subarticle. In default of such opposition
the court shall accede to the demand.
(3) The court shall decide on the application after hearing the parties and receiving such evidence as it may deem fit,
if it so considers, within a period not later than one month from the filing of the said application.
(4) An appeal from a decree delivered under subarticle (3) of this article may be entered by application within six days from
the date on which the decree is read out in open court. The Court of Appeal shall appoint such appeal for hearing within one month
from the date when the decree is read out in open court, and the appeal shall be decided within three months from the date
when it has been appointed for hearing.
(5) The security referred to in article 249 shall not be required in the cases referred to in the previous subarticle.''.
Deletion of articles 284 to
304 of the Code.
A 747
Addition of new articles 282 to
293 in the Code.
''Warrant of seizure on movable property.
(a) (i) the appointment of the day, place and time for the judicial sale by auction and the subsequent seizure and removal
thereupon of all such articles from the place which has been indicated by the creditor or from the person of the debtor; or
(ii) the seizure from the place indicated by the creditor, including from the person of the debtor, of any such article which
the debtor may possess or such article or articles as may be mentioned in the warrant; and also that after the execution of the warrant,
the court executing officer shall be ordered to fix, together with the advocate or the legal procurator of the creditor, the
day when the judicial sale by auction is to be held in consultation with the executing officer responsible therefor, and such
executing officer shall also fix with the creditor the date, which shall at least be seven days prior to the date of the judicial
sale by auction, when the removal of the articles which the executing creditor selects to have removed shall take place;
(b) the execution of the warrant, if so required, after legal hours or on a Sunday or public holiday, and if after two attempts
to execute the warrant the court executing officer fails to effect such execution, he shall be authorised to force open the place;
A 748
Cap. 342.
(c) the transport of the property seized and to be removed to the official storage places established by regulations made by
the Minister responsible for justice, and about the transfer of their possession from the debtor to the official consignee appointed
in terms of such regulations;
(d) the taxing and receipt of payment due to the official consignee by the creditor for such period during which the articles
seized and to be removed would be under the care of the official consignee, so however that such payment may be divided in proportion
to the periods established by the Registrar depending on the nature of the articles seized and to be removed. Such payment is made
subject to the right of regress against the debtor when such right exists;
(e) the appointment of experts to make a valuation of the property seized, if so required by law, either in special circumstances
which the court may deem appropriate, or on the demand of any interested party or of the debtor;
(f) the appointment of an auctioneer who shall receive a fee in terms of the Auctioneers Act, if so required by law;
(g) an order for the judicial sale by auction of such articles as are seized and to be removed on the appointed day in terms of
regulations to be made by the Minister responsible for justice, without further service of any notice to the debtor.
(2) The provisions of this Sub-title shall not apply to sea vessels or other craft having a length exceeding ten metres, and
to aircraft engaged in commercial air transport, unless otherwise exempt by the provisions of this Title.
A 749
Description of property seized.
Contents of certificate in case of unsuccess-ful execution.
Payment of the amount due.
(b) The creditor or the debtor or any interested party may demand the court executing officer to take any photograph or filmshot
of the detained articles either by electronic or by any other means at the expense of the party making the demand.
(2) If the court executing officer finds no movable property, or finds only such property as is not liable to seizure, he shall
make a certificate to that effect, stating therein the nature of the movable property, if any, not liable to seizure, and he shall
attach such certificate to the warrant.
(2) The court executing officer shall describe in detail the property seized and -
(a) where the property includes any merchandise, he shall cause such merchandise to be weighed, measured or gauged, as the
case may be;
(b) where money or securities for money, jewellery, or articles of precious metal are seized, he shall accurately state the amount
or nominal value or weight thereof and he shall within the shortest time possible take the same to the registry and lodge them therein
by means of a schedule;
(c) where papers are seized, he shall seal them and deliver them to the Registrar, and such seals may not be removed except
by the authority of the court.
A 750
Seizure of papers.
Official consignee.
(a) shares in commercial partnerships;
(b) licences issued by any competent authority as may be established by regulations made by the Minister responsible for justice;
(c) insurance policies;
(d) credit securities and any intellectual or industrial property right:
Provided that on such property the warrant shall have effect as from the date of the service on such authority or such person who
would have issued such movable property. Any transfer made or burthen incumbent on such property after that date shall be ipso jure null as from the date of the service of the certificate of seizure to such person or authority issuing same.
(2) Where in any commercial partnership its statute attributes any right of preference with regard to the transfer of shares,
the shareholders shall be informed of the date when such sale is due to take place and they may exercise the said right during that
sale.
(3) When the judicial sale by auction of an insurance policy is due to take place, notice shall be given to the insurance company
of the date of such sale.
A 751
(2) The official consignee shall issue a receipt, to be signed by him, for such property as would have been seized and removed from
the possession of the debtor and which he would have received:
Provided that the official consignee may, with the written consent of the Registrar, retain such property in any place other than
the official storage place in such circumstances where, due to the nature or the size of the articles seized, it would not be feasible
to dispose otherwise.
(3) The Minister responsible for justice shall appoint a number of official consignees to safeguard the property seized as
from such time as the property is held in the hands of the court executing officer to the day when they are sold:
Provided that where the official consignee is a company or partnership, such company or partnership is to appoint a person who shall
at all times be personally responsible to fulfil the obligations of the official consignee, and to assume joint responsibility
with the company or partnership:
Provided further that the Minister responsible for justice may by regulations provide for the making of any other such conditions
as he may deem necessary relating to the appointment of a person as an official consignee or to be personally responsible in terms
of the first proviso to this subarticle.
(4) The Minister responsible for justice shall indicate the official storage places where the seized property is to be stored by
official consignees from the time when the property is removed by the court executing officer up to the day when it is sold.
A 752
Persons who may not act as official consignees.
(5) The Minister responsible for justice may by regulations provide in relation to the preservation of such property, its release prior to sale, the procedures connected with the sale thereof, the responsibility pertaining to the official consignee for the payment of his fees, and in relation to any other matter connected with the preservation, sale, consignment and release of the property seized.
(a) the execution creditor;
(b) the husband or wife of the debtor or of the creditor;
(c) the father or mother of the creditor, his daughter or son, or his brother or sister, his uncle or aunt, his father-in-law
or mother-in-law or her husband or his son-in-law or daughter-in- law;
Attendance of the official consignee.
Official consignee to preserve property seized.
(d) directly or indirectly employed with the creditor;
(e) the person who claims to be the owner of the property seized.
A 753
The official consignee to act as a bonus paterfamilias.
Other creditors may not oppose execution.
Provided that the debtor may be allowed to use or retain in possession such articles of the property seized as the court may authorise
if the court considers that such articles are normally required by an average household for decent living to maintain the human
dignity of the debtor and his family.
(2) Where the property seized is of a perishable nature, the Registrar shall, without further authorisation, sell the goods seized
and with the profit made from that sale, he shall proceed according to the provisions of article
284.
290. The official consignee is bound to exercise for the safe keeping of the property seized, such care as is exercised by a bonus paterfamilias; if the official consignee fails to present such property when called upon to do so, the court shall order him to appear before it
to explain his failure to do so; the official consignee shall be responsible for damages and interest and the court, after examining
the circumstances of the case, may issue such orders as appear to be appropriate, including the personal arrest of the official
consignee for a period not exceeding three months, to compel him to present such property. The failure of the official consignee
to present such property when ordered by the court shall of itself constitute contempt of court in terms of the applicable
provisions under this Code.
Provided that it shall be lawful for such creditors to enforce their claim on the proceeds of the sale of the property seized.
A 754
No identification is to be made of property already seized.
The warrant may be executed on new articles other than those already seized.
Property not subject to seizure.
(2) When an official consignee has already been appointed, and the articles have been removed, no other warrant may be executed on such articles.
(a) such clothes for daily wear, bedding and such utensils and furniture as are considered reasonably necessary for the decent
living of the debtor and his family;
(b) personal documents and books relating to the profession of the debtor, of his wife or of his children;
(c) the registers and minute- books of notaries public;
(d) tools and implements necessary for the instruction in or the exercise of any science or of any art of the debtor, of his
wife or of his children;
(e) animals and tools required for agriculture and any fruit either cut or not yet separated from the ground;
(f) aircraft, exclusively appropriated to a state service, including the postal service, but excluding commercial service;
A 755
(g) sea vessels wholly chartered in the service of the Government of Malta
(h) sacred vestments and vessels which are used in a consecrated church, or belonging to a priest, a religious order or any member
thereof;
(i) any property of any member of the Police Force or of the Armed Forces of Malta being arms, ammunition, equipment,
instruments or clothing used by him in the discharge of his duties:
Provided that any such property as is mentioned in paragraphs (a) to (g) may be seized -
(i) if the execution is demanded in respect of the price of such property;
(ii) if the execution is demanded in respect of rent or ground-rent of the tenement in which such property is kept;
(iii) if the executive title by virtue of which the warrant has been issued specifically condemns the debtor to effect the return
of such property.
(2) The seizure may be effected of unseparated movable property belonging to both debtor and a third party, insofar as no sale
of such property may take place except after their separation.''.
''Sub-title II
OF THE WARRANT Of SEIZURE OF IMMOVABLE PROPERTY
Addition of new Sub-title and new articles in Book Second of the Code.
Form of demand by application.
A 756
Duties of the court.
(2) The application shall contain a detailed description of the property of which the sale by auction is demanded, including
the mode in which the property has been acquired and any burthen attached to the same land and a plan clearly indicating the site.
The provisions of this article apply to ships or other vessels exceeding ten metres in length and to aircraft and such articles shall
also be described in detail, including any rights and encumbrances thereon.
(3) In the event of a decree as provided in the proviso to subarticle (2), the procedure to be followed shall be that laid down in
this Sub-title for the judicial sale by auction of immovable property.
(a) order the Registrar to appoint experts in terms of article 89 as may be required and to fix a short and peremptory
time within which such appraisments have to be filed and give any such order as may be necessary for the better execution of such
appointment;
(b) appoint a day, time and place for the judicial sale;
(c) order the Registrar to inform the Director of the Public Registry and the Registrar of Lands or any competent authority
which may be appointed according to regulations made by the Minister responsible for justice, about the issuing of the decree on
the first working day thereafter;
(d) order the Registrar of the Public Registry to register forthwith the decree in a book kept for the purpose at the Public
Registry, which book shall be accessible to the public.
A 757
Appraisement by debtor.
Expert to be appointed by court, unless agreed on by parties.
(2) Such decree shall be served on the debtor.
(2) The sworn appraisement filed by the debtor shall, within five days, be served on the creditor who shall then have twenty
days to lodge an opposition to it.
(3) When a creditor lodges such opposition to the appraisement filed by the debtor, the court shall, after hearing both parties,
decide whether it shall appoint a new expert or not.
(4) An appraisement of the property to be sold shall always be made before the sale takes place provided that if an appraisement,
made not earlier than twelve months before the judgement that is being executed, has been accepted by the court in its judgement,
the court shall take cognizance of such appraisement and it shall not appoint new experts to effect a new appraisement.
297. (1) The expert shall always be appointed by the court ex officio, according to the panel established in article 89 and on a rota system, unless the parties shall have already filed a note submitting
the name of an expert agreed on between them, or the appraisement filed in terms of article 296 has been accepted.
(2) The expert shall draft a valuation of the property together with a detailed description thereof, including encumbrances
and burthens, and file same under oath with the Registrar.
A 758
Appraisement of gold or silver articles to show intrinsic
value, etc.
Valuation of immovable property to contain description of property, etc.
Debtor may be compelled to give information required for the purposes of the valuation.
Debtor to be called upon by letter from registrar.
Applicability to debtor of provisions relating to witnesses.
Valuation or appraisement to be sworn by expert.
(3) The debtor shall under oath give such information relating to the property as may be required by the Registrar
or by the experts, and the provisions relating to evidence shall apply to the debtor.
(4) The appraisement may not be contested but the court may, by way of an application, order the correction of any mistake made
in the description or appraisement.
(5) The expert appointed under this Title shall be remunerated in terms of a tariff to be established according to regulations
made by the Minister responsible for justice.
(2) It shall be lawful, at the written or verbal request of the expert or the creditor, to compel the debtor to confirm on oath,
to be administered by the court or the registrar, the information given to or required by the expert.
(3) The debtor shall be called upon to give the above information by means of a letter from the registrar.
(4) The provisions relating to witnesses shall apply to any debtor called upon as aforesaid.
A 759
Taxation and payment of expert’s fee.
(2) Where a sale by auction of immovable property or of rights annexed to immovable property situated in the Island of Gozo or
of Comino, is ordered by any of the superior courts, it shall be lawful for such court to order the expert to swear his report at
the Court of Magistrates (Gozo) in the presence of any of the officers mentioned in article
57(2)(a) to (c), and to deliver the said report, so
sworn, to the said officer, to be by him transmitted to the superior court which made the aforesaid order.
(3) When a sale by auction of immovable property or of rights annexed to immovable property situated in the Island
of Malta, is ordered by the Court of Magistrates (Gozo), it shall be lawful for such court to order the expert to swear his
report in the presence of the Registrar and to deliver the said report, so sworn, to the said Registrar, to be by him transmitted
to the Court of Magistrates (Gozo).
(4) The fee payable to the expert shall be taxed by the Registrar, subject to appeal to the court. Such appeal shall be made by
application by any interested party within one month from the service of the taxed fee. Such fee shall always be paid by the creditor,
saving his right against the debtor for the reimbursement of such fee together with the other expenses of the sale:
Provided that when an appeal is lodged, the creditor shall deposit the fee taxed by the Registrar and the procedings for sale shall
be further proceeded with and brought to a conclusion.''.
301 to 312:
Deletion of articles 305 to
312 of the Code.
Addition of new Sub-title and new articles in Book Second of the Code.
A 760
''Sub-title III
OF THE WARRANT Of SEIZURE OF A COMMERCIAL GOING CONCERN
Sale by auction of movable or immovable property and going concerns.
Auctions to be held whenever the need arises.
Provisions apply both to movable and immovable property and to going concerns.
Demand for seizure of a going concern.
Decree upholding the demand for the issue of the warrant.
(2) For the purposes of this Sub-title, the meaning of movable property shall be the same as that given in Sub-title I of this Title and the meaning of immovable property shall be the same as that given in Sub-title II of this Title, saving that in the case of a going concern the meaning is that given in article 309 but for the purposes of this Title a going concern shall be deemed to be immovable property.
(a) shall order the Registrar to appoint such experts according to article
89 who may be required to:
(i) enlist and evaluate all the assets of the going concern;
A 761
Appointment of application for hearing.
Appointment of date, place and time for the sale.
Appointment of administrator.
(ii) file a report whether or not, considering the debt of the going concern, such going concern should be sold or put under
administration for a period of time during which it could pay back its debts; and
(b) appoint a short and peremptory time for the filing of such appraisements and report and give such orders as may be necessary
for the carrying out of these instructions:
Provided that where the enlisting and the appraisement of the whole complex would have already been made in the proceedings of
a precautionary warrant of seizure of a going concern, the court shall adopt same and only appoint experts to file a report
whether the going concern should be sold or put under administration.
Provided that where in the proceedings of a precautionary warrant an administrator would have already been appointed, he shall be
confirmed as such.
A 762
Applicability of articles
297 and 300.
Where court decides that going
concern shall continue to be administered.
Demand for the sale of the going concern.
Definition of going concern.
mutatis mutandis to this warrant.
(2) The appointed administrator shall take control of the going concern and he shall have the right to sell and carry on trade
in its day to day business, provided that with regard to any decision of an extraordinary nature he shall be bound to demand the
court for its authorisation:
Provided that a commercial bank cannot be appointed as administrator.
(2) The appointed administrator under article 310 shall be entitled to such payment as the court, in its discretion, may deem fit that he should receive considering the value of the going concern and the work done in connection with the running of the business.
Substitution of heading in Book Second of the Code.
A 763
''Sub-title IV - OF JUDICIAL SALES BY AUCTION''.
Substitution of article 313 of the Code.
''Form of advertisement of sale by auction.
Provided that the debtor, creditor or any other interested person may publish and inform, at their own expense, any particular sale in any newspaper of their choice or broadcast same over any other broadcasting medium.''.
''(3) In the case of a judicial sale by auction of listed securities in a recognised exchange, the auction shall be held in accordance with the procedures prescribed in rules and bye-laws made under articles 4(2) and 28(2) of the Financial Markets Act.''.
Deletion of articles 314 and
315 of the Code.
Amendment of article 316 of the Code.
Addition of new articles 315 and
316 to the Code.
''Valuation of property to be sold by auction.
(2) With regard to other movable property, an appraisement shall only be made if required by the creditor or by the debtor.
A 764
Appraisement of gold or silver articles to show intrinsic
value.
(3) An appraisal made in conformity with the provisions of articles 297, 300 and
307 and existing in the records of a sale by
auction shall be accepted by the court to be the appraisement for the purpose of this article.
Substitution of article 317 of the Code.
''Removal of movable property to place of sale.
Amendment of article 318 of the Code.
Amendment of article 319 of the Code.
(a) for subarticle (1) thereof there shall be substituted the following new subarticle:
''(1) The auction shall be, save the exceptions mentioned in the preceding articles, conducted by a public auctioneer in
the presence of the Registrar.''; and
(b) for subarticle (3) thereof there shall be substituted the following new subarticles:
''(3) An offer shall no longer be valid immediately when a higher offer is accepted, even though such higher offer is later
declared to be null.
(4) The public auctioneer or broker shall be entitled to a fee which is taxed by the Registrar in accordance with a tariff
to be established by the Minister responsible for justice.
A 765
(5) No offer may be accepted if such offer is less than sixty per cent (60%) of the value at which the movable or immovable
property or the going concern has been appraised.
(6) The public auctioneer shall have the right to demand that a person submitting an offer should be in possession of the necessary
guarantees.''.
Substitution of article 320 of the Code.
''Bids pro persona nominanda, etc., not to be accepted.
320. The auctioneer shall cause that no bid shall be accepted if it is either made pro persona nominanda or by any person who is notoriously incapable of fulfilling the obligations arising out of the adjudication.''.
Deletion of article 322 of the Code.
Substitution of article 323 of the Code.
''Duration of auction.
(a) in subarticle (1), immediately after the words ''for the continuation of the auction'' there shall be
added the words
''on another day which shall be appointed by the Registrar within two weeks'';
(b) in subarticle (3), for the words ''six days'' there shall be substituted the words ''seven days'';
and
(c) immediately after subarticle (4) there shall be added the following new subarticle (5):
''(5) The court shall hear the parties about the demand for suspension, and it shall not give its decree relating to such
application prior to a deposit having been made of all the expenses with regard to the judicial sale by
Deletion of articles 324 and
325 of the Code.
Amendment of article 326 of the Code.
A 766
Deletion of article 327 of the Code.
Amendment of article 328 of the Code.
Amendment of article 329 of the Code.
Amendment of article 331 of the Code.
Amendment of article 332 of the Code.
Substitution of article 333 of the Code.
auction.''.
''by writ of summons'' there shall be substituted the words ''by application''.
''Animo compensandi bid.
333. (1) Any person to whom a liquidated debt is owing under any judgement or executive title or deed or other obligatory writing
may, by an application, bid animo compensandi.
(2) Any person who is intent on bidding animo compensandi shall register his name by means of a note before the commencement of the sale by auction by making a sworn declaration before the
Registrar about the reason why he wishes to bid animo compensandi.
(3) Any person bidding animo compensandi may be served notice by any person having an interest in the judicial sale by auction at least two weeks before the date of the sale
and whosoever is not served such notice or is not served notice within such time may exercise the right under article 356.''.
Substitution of article 334 of the Code.
A 767
following:
''Conditional leave to bid animo compensandi.
334. Any bid animo compensandi is made on condition that the bidder shall bind himself to pay the price into court in case it shall be so adjudged by the court.''.
Substitution of article 335 of the Code.
''Opposition to bids animo compensandi.
335. Any opposition to an application to bid animo compensandi may only be made after the sale. No opposition may be made before or during the sale.''.
(a) in subarticle (1), for the words ''demand the approval of the proposed set-off, and shall pay into court''
there shall be substituted the words ''demand by means of an application accompanied by a lodgment schedule, the approval
of the proposed set-off, and he shall pay into court''; and
(b) in subarticle (3), for the words ''and shall recover the costs of the judicial recognition'' there shall
be substituted the words ''and shall recover the legal fees and the costs of the judicial recognition''.
(a) for subarticle (1), there shall be substituted the following:
''(1) The aforementioned demand shall be published in the Government Gazette and served on the debtor and all known
creditors, including such persons who shall have sued out any warrant of seizure or garnishee order or impediment of
departure, and such persons as are mentioned in the warrant of seizure which preceded the judicial sale by auction.'';
(b) in subarticle (2), for the words ''The persons so served shall be allowed the time of three days''
there shall be substituted the words ''Any person who may have an interest and the persons so served shall be allowed the
time of twenty
Deletion of article 336 of the Code.
Amendment of article 337 of the Code.
Amendment of article 338 of the Code.
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days''; and
(c) for subarticles (3) to (7), there shall be substituted the following subarticles:
''Condition which may be imposed by court on approval of set-off.
(3) It shall be lawful for the court, in approving the set-off, to require the purchaser to give sufficient security to pay into
court the price together with interest, in case it shall be so adjudged.
(4) When the court upholds the demand, any person who may have an interest to enter suit may within twenty days file an appeal
by application, which appeal shall be appointed and decided within three months from the date of the decree.
(5) When the Court of Appeal revokes a decision to grant a bid animo compensandi, it shall remit the judicial proceedings to the first court.''.
Substitution of article 339 of the Code.
''Competition of creditors.
339. When there are more than one creditor filing a demand for payment from the proceeds in such manner that a competition of creditors would have to take place, it shall be the same court to commence such proceedings in terms of articles 416 et sequitur.''.
Amendment of article 340 of the Code.
Substitution of article 342 of the Code.
''Restoration of balance of deposit to debtor.
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Substitution of article 343 of the Code.
''Disconti- nuance of sale by auction and
restoration of unsold property to
debtor.
Substitution of article 345 of the Code.
''Sale of perishable articles.
''was obtained.'' there shall be substituted the words ''was obtained, in which case the court shall on a demand made by application proceed, after hearing the parties, to declare such transfer as null and void and to adopt such measures as it may deem necessary.''.
(a) in subarticle (1), immediately after the words ''the auction of the immovable property'' there shall be added the words ''or of a commercial going concern''; and
Deletion of article 348 of the Code.
Amendment of article 349 of the Code.
Amendment of article 350 of the Code.
Amendment of article 352 of the Code.
Amendment of article 353 of the Code.
A 770
Substitution of article 354 of the Code.
(b) in subarticle (2), immediately after the words ''The auction of the immovable property'' there shall be added the words ''or commercial going concern''.
''Execution of a judgement of the Court of
Magistrates (Malta) on immovable property.
(2) The same rule applies when a demand is made for the execution of two or more judgements, whose total joint amount, not taking into account any expenses, exceeds the sum of five thousand liri.''.
Amendment of article 355 of the Code.
Amendment of article 356 of the Code.
(a) in subarticle (1) thereof, immediately after the words ''his immovable property'' there shall be
added the words
''and of a commercial going concern''; and
(b) subarticle (2) shall be deleted and subarticle (3)
shall be renumbered as subarticle (2) thereof.
(a) in subarticle (3), for the words ''is of a going concern'' there shall be substituted
the words ''is of a commercial going concern''; and
(b) immediately after subarticle (7) thereof there shall be added the following new subarticle:
''(7A) When such action is exercised and the sale is effected, the third party which has acquired possession of the immovable
thing in whose favour the property would have been originally adjudicated, who shall not also be the same person in whose favour
during the second sale the property has been adjudicated, shall be paid from the proceeds of the second sale the sum of money which
he would have defrayed together with all expenses made before any other creditor:
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Provided that where the third party which has acquired possession of the immovable thing during the second sale at a higher price
is also the same person in whose favour the property had been originally adjudicated, such third party shall be required to deposit
in court only the difference in price, and not the full price.''.
Addition of new article 357 to
the Code.
''Eviction after adjudication.
56. The words of the sub-heading ''Sub-title III - Of the Warrant of Imprisonment for Debt'' occurring immediately after article 357 of the Code, as added by this Act, shall be deleted.
Deletion of words of sub- heading in the Code.
Addition of new Sub-title and new articles 358 to 364 in the Code.
Private sale of an aircraft, ship or vessel.
''Sub-title V
OF COURT APPROVED SALES FOR AIRCRAFT, SHIPS AND VESSELS
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Appraise- ments by independent and reputable valuers.
Persons called upon to make submissions.
Hearing. 361. The Court shall appoint the application for hearing within ten days of its filing.
Where Court accedes to application.
Deposit of price in Court.
Title which is free from all privileges and encumbrances.
Substitution of sub-heading in the Code.
Executive Garnishee Order'' occurring immediately before article 375
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of the Code, there shall be substituted the words ''Sub-title VI - Of the
Executive Garnishee Order''.
Substitution of article 376 of the Code.
''Contents of garnishee order.
(2) The order shall:
(a) state the name and surname of the debtor and other particulars included in the application for the purpose of identification
of the debtor, including, where possible, the identity card number or the company registration number;
(b) state the amount or thing due; (c) state the title under which the
creditor sues out execution;
(d) enjoin the garnishee not to pay or deliver up to the debtor, or any other person, such moneys or things as may be in his
hands but which belong to the debtor, under penalty of payment of damages and interest; and
(e) enjoin the garnishee to lodge, at the debtor’s expense within twenty-one days from the date of service of the warrant,
through the Registrar any moneys or things belonging to the debtor, as attached by the order.
(3) The lack of any of these particulars in the garnishee order shall render the said order to be ipso jure null.''.
Amendment of article 377 of the Code.
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Substitution of article 378 of the Code.
prescribed by the Minister responsible for justice''.
''Declaration by garnishee.
Time for such declaration.
Substitution of article 379 of the Code.
''Garnishee may be enjoined to deposit.
(2) In all cases, the execution creditor and the debtor shall be notified of any such lodgment into court.''.
Deletion of article 380 of the Code.
Amendment of article 381 of the Code.
(a) in subarticle (1), paragraph (c), immediately after the word ''charitable grant'' there shall be added
the words ''or donation'';
(b) in subarticle (1), for paragraph (f) there shall be substituted the following paragraphs:
''(f) moneys which have been made available to
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the debtor by deed of loan for the building, construction and maintenance of houses intended as a main dwelling place for the debtor;
(g) overdraft banking facilities excluding credit cards by means of which commercial going concerns run by the debtor are being
operated;
(h) bank guarantees and letters of credit.''; and
(c) subarticle (2) shall be deleted, and sub-rticles (3) and (4) shall be renumbered as subarticles (2) and (3) respectively.
''the court may, on the application by any creditor, allow the issue of a garnishee order'' there shall be substituted the words ''the issue of a garnishee order shall be applicable''.
Amendment of article 382 of the Code.
Substitution of article 383 of the Code.
''Garnishee order may not be extended.
69. For the words of Sub-heading ''Sub-title VI - Of the Warrant In Factum'' occurring immediately before article 385 of the Code, there shall be substituted the words ''Sub-title VIII - Of the Warrant In Factum''.
Substitution of sub-heading in the Code.
Amendment of article 384 of the Code.
Substitution of sub-heading in the Code.
Substitution of article 385 of the Code.
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following new article:
''Warrant in factum.
385. (1) In the execution of a warrant in factum, the court executing officer shall proceed in such manner as ordered in the warrant.
(2) The warrant in factum shall contain the order that the party against whom the warrant is issued is to be conveyed to prison, in order to be therein kept
at his own expense, until the performance of the act ordered by a judgment or until such time as the court may deem necessary to
ensure such performance.
(3) The warrant may not be issued other than by an explicit order of the court to be issued on a demand made by application
by the creditor.
(4) The court shall only issue the warrant if it is satisfied that the creditor does not have any other means of execution
available.''.
Amendment of article 387 of the Code.
Addition of new sub-heading in the Code.
Addition of new articles 388A and 388B to the Code.
(a) in subarticle (1), for the words ''the marshal'' and
''for seven days'' there shall be substituted the words ''the court executing officer'' and
''for four days'' respectively;
(b) in subarticle (2), for the words ''seven days'' there shall be substituted the words ''four
days''; and
(c) in subarticle (3), for the words ''The marshal'' there shall be substituted the words ''The
court executing officer''.
''Sub-title IX
OF THE WARRANT OF EXECUTIVE DETENTION OF AIRCRAFT''.
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there shall be added the following new articles 388A and 388B:
''Application for the issue of a warrant.
Court to decide about the sale or to fix time-limit for payment.
Provided that the application shall contain a detailed description of the aircraft of which the sale by auction is demanded, including the mode in which it has been acquired and any rights and encumbrances thereon.
(2) When the court orders such sale, it shall proceed according to the procedures laid down in the provisions relating to judicial
sale by auction.
(3) When the court fixes a time limit within which the debtor is to pay, it shall order the warrant to be definitely in force until
payment of the amount due is effected.
(4) When the said time limit passes without any effect the court shall, on a demand to be made by the interested party, order the
sale to take place according to the provisions of subarticle (2).''.
388C and 388D:
''Sub-title X
OF THE WARRANT OF EXECUTIVE ARREST OF SEA VESSELS
Addition of new sub-heading and articles 388C and 388D to the Code.
''Application for the issue of a warrant.
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Court to decide about the sale or to fix time-limit for payment.
(2) When the court orders such sale, it shall proceed according to the procedures laid down in the provisions relating to judicial
sale by auction.
(3) When the court fixes a time limit within which the debtor is to pay, it shall order the warrant to be definitely in force until
payment of the amount due is effected.
(4) When the said time limit passes without any effect the court shall, on a demand to be made by the interested party, order the
sale to take place according to the provisions of subarticle (2).''.
Addition of new sub-heading in the Code.
Addition of new article 388E to the Code.
''Sub-title XI
OF THE WARRANT IN PROCINCTU''.
''Court may issue other orders.
Provided that this warrant shall not be issued except after an application has been made to this effect by the creditor and after
the court is satisfied that the creditor does not have any other means of execution.
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(2) There shall be clearly indicated in the application the reason for the necessity of such orders and a decree shall be given
thereon after that the debtor has been served notice thereof, to which he may file a reply within four days.''.
Substitution of sub-heading in the Code.
Addition of new articles 742B to
742D to the
Code.
''Jurisdiction in rem against ships or vessels.
724B. Save as otherwise expressly provided by law, the civil courts of Malta shall have jurisdiction in rem against ships or vessels in the following maritime claims:
(a) any claim to the possession, ownership or title to or of a ship or to the ownership of any share therein;
(b) any question arising between the co-owners of a ship as to the ownership, possession, employment or earnings of that ship;
(c) any claim in respect of a mortgage, hypothec or charge on a ship or on any share therein;
(d) any claim arising out of the contract for the sale of the ship;
(e) any claim for damage received by a ship;
(f) any claim for damage done or caused by a ship, either in collision or otherwise;
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(g) any claim for loss of life or personal injury caused, whether on land or on water, by any ship or occurring in connection
with the operation of any ship or sustained in consequence of any defect in a ship or in her apparel or equipment or in consequence
of the wrongful act, neglect or default of -
(i) the owners, charterers or persons in possession or control of a ship; or
(ii) the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or
persons in possession or control of a ship are responsible,
being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods
in, in or from the ship, or in the embarkation, carriage or disembarkation of persons on, in or from the ship;
(h) any claim for loss of or damage to goods, including baggage, carried in a ship;
(i) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship,
whether by charter party or otherwise;
(j) any claim in the nature of salvage operations or any salvage agreement including, if applicable, special compensation
relating to salvage operations in respect of a ship which by itself or its cargo threatened damage to the environment;
(k) any claim for -
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(i) damage or threat of damage caused by the ship to the environment, coastline or related interests;
(ii) measures taken to prevent, minimize or remove such damage; and for compensation for such damage;
(iii) costs of reasonable measures of reinstatement to the environment actually undertaken or to be undertaken;
(iv) loss incurred or likely to be incurred by third parties in connection with such damage; and
(v) for damage, costs or loss of a similar nature to those listed in subparagraphs (i) to (iv);
(l) any claims regarding costs or expenses relating to the raising, removal, recovery, destruction or the rendering harmless
of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship,
and costs or expenses relating to the preservation of an abandoned ship and maintenance of her crew;
(m) any claim in the nature of towage in respect of a ship;
(n) any claim in the nature of pilotage in respect of a ship;
(o) any claim in respect of goods, materials, provisions, bunkers, supplies and necessaries supplied or services rendered to a
ship for her operation, management, preservation or maintenance;
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(p) any claim in respect of the construction, re-construction, repair, conversion or equipping of a ship;
(q) any claim in respect of port, dock or harbour dues and charges;
(r) any claim by the master, officers, or member of the crew, or complement of a ship, for wages and other sums
due to them in respect of their employment on the ship including costs of repatriation, and social security contributions payable
on their behalf;
(s) any claim by a master, shipper, charterer or agent in respect of disbursements made by them on account of a ship
or her owners;
(t) any claim for commissions, brokerages, or agency fees payable in respect of the ship, by or on behalf of the ship owner or
demise charterer;
(u) any claim arising out of an act which is or is claimed to be a general average act;
(v) any claim arising out of bottomry;
(w) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried or have been
attempted to be carried in a ship or for the restoration of a ship or any such goods after seizure;
(x) any claim for insurance premia, including mutual insurance calls, in respect of the ship payable by or on behalf
of the ship owner or demise charterer;
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Cap. 234. Action in rem
in cases
mentioned in
article
742B(a) to
(c).
Action in rem in cases mentioned in article
742B(d) to
(y).
Cap. 234.
(y) any claim for fees and other charges due to the Registrar-General of Shipping and Seamen arising under the provisions of the Merchant Shipping Act, and any claim for tonnage dues.
742B(a) to (c), an action in rem may be brought before the civil courts of Malta against the ship in connection with which the claim or question arises.
50 of the Merchant Shipping Act, and which, in terms of article 37D(3) of the said Act, survive the voluntary sale of a vessel by
up to one year, in the cases mentioned in article
742B(d) to (y), an action in rem may be brought before the civil courts of Malta against -
(a) that ship or vessel, where the person who would be liable on the claim for an action in personam (''the relevant person'') was, when the cause of action arose, an owner or charterer of, or in possession or in
control of, the ship or vessel, if at the time when the action is brought the relevant person is either an owner or beneficial owner
of that ship or the bareboat charterer of it;
(b) any other vessel of which, at the time when the action is brought, the relevant person is the owner or beneficial owner as
respects all shares in it.''.
Substitution of article 830 of the Code.
''Precaution- ary acts.
(a) warrant of description; (b) warrant of seizure;
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(c) warrant of seizure of a commercial going concern;
(d) garnishee order;
(e) warrant of impediment of departure;
(f) aircraft; | warrant | of | detention | of |
(g) vessels; | warrant | of | arrest of | sea |
Cap. 234.
(h) warrant of prohibitory injunction.
(2) (a) Saving the provisions of article 870 of this Code and of article 357 of the Merchant Shipping Act, such
acts mentioned in subarticle (1) shall be rescinded, if the party against whom the act is issued makes such deposit or gives such
security as, in the court’s opinion, according to the circumstances of the case, may be sufficient to safeguard the rights or claims
stated in the act, or if it is shown that a judicial act accepting liability as provided in subarticle (3) has been filed in the
proper registry.
(b) Notwithstanding that a deposit is made or security is given as aforesaid, the time limits established
in this Title on the creditor to bring forward his action shall continue to apply.
(c) Such time limits shall run from the date of the issue of the precautionary act, and failure by the creditor to institute
proceedings within the said time limits shall entitle the debtor to withdraw the deposit or cancel the security.
A 785
Cap. 104.
(3) Where a precautionary act has been issued against any person, or such as to affect any property of such person, to secure a
claim for damages, and a locally registered insurance company or local bureau thereof, as established in the Motor Vehicles (Third
Party Risks) Ordinance, such person or company shall by means of a judicial act, filed in the registry of the said court, within
ten days from the date of the insured person’s demand, declare that he or the company is accepting liability to pay all sums that
may be due for such damages, in connection with the claim contained in that act if such insured person is found to
be responsible for such damages -
(a) the insurer or local bureau, as the case may be, shall be liable to pay all sums that may be due for damages arising as aforesaid;
(b) the claim for such damages may be pursued against the insurer or the local bureau directly; and
(c) the precautionary act against such person shall be rescinded.
(4) No precautionary act as provided in subarticle (3) shall be issued against the insured if the person intending to
sue out the warrant is cognizant that the insurer or the local bureau has issued to the insured a valid insurance certificate
accepting liability for the payment of damages; and in such case the claim for such damages may be pursued against
the insurer or the local bureau or agent, as the case may be, directly.''.
Substitution of article 831 of the Code.
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following new article:
''Application for issue of warrant.
(a) the origin and nature of the debt or claim sought to be secured; and
(b) when the right sought to be secured by the act is a debt, or a demand which may be satisfied by the payment of a sum of money,
the amount of such demand.
If the case has already been filed in court, such demand may specify and include all judicial costs.
(2) The application shall be confirmed on oath by the applicant:
Provided that where in an application there is more than one applicant demanding the issue of any of the precautionary acts
mentioned in article 830(1) against the same respondent, the oath shall be taken by at least one of the applicants.
(3) Any of the warrants or order mentioned in article 830 shall be issued by the court:
A 787
Provided that, where in the opinion of the Registrar the signature of a judge or magistrate empowered to issue a warrant of seizure
or a garnishee order or a warrant of impediment of departure cannot be obtained within a reasonable time and that delay may be prejudicial,
the said warrants or order may be issued over the signature of the Registrar personally after having first obtained verbal authorisation
from the judge or magistrate to do so. In this case, the judge or magistrate is to append his own signature under that of the Registrar
at the earliest opportunity to confirm that he had given the said verbal authority or, if it is not possible for the Registrar to
obtain such verbal authority, the Registrar shall under his authority issue the said warrant or order over his signature, subject
to the ratification of such action by a judge or magistrate at the earliest opportunity.''.
Deletion of article 832 of the Code.
Substitution of article 833 of the Code.
''Request for the issue of a warrant
under article
166A.
166A, there may also thereupon be sworn and filed the precautionary warrants referred to in article 830(1)(a), (b) and (d):
Provided that when such executive judicial letter is filed, the applicant shall file a cause within twenty days from the date
of filing of a full or partial note of contestation or within sixty days from the date of the issuing of a warrant according to
which date first occurs.''.
Substitution of article 834 of the Code.
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following new article:
''Notice of execution of warrant.
Deletion of article 835 of the Code.
Amendment of article 836 of the Code.
Amendment of article 837 of the Code.
(a) for subarticles (2), (3) and (4), there shall be substituted the following subarticles:
''(2) The person making the application according to subarticle (1) shall, together with the application, file in writing
all submissions to be made together with all documents in support of the demand that is being filed.
(3) The application, except for any application in terms of subarticle (1)(a), shall be served on the opposite party who may, within
seven days from the service, file a note containing all submissions to be made together with all documents in support of the demand
that is being filed.
(4) The court shall decide the application with urgency either in camera or after hearing the advocates of the parties, if it deems fit, provided that not more than one sitting may be fixed for such purpose.'';
and
(b) subarticle (8) shall be amended as follows:
(i) in paragraph (a) thereof, immediately after the words ''if the applicant'' there shall be added the
words
'', without any valid reason,''; and
(ii) in paragraph (b) thereof, for the words ''if, on the demand'' there shall be substituted the words ''if,
on demand''.
(a) for subarticle (1) there shall be substituted the following:
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''(1) The warrants of description and of arrest of a vessel or of any other sea going craft for the purpose of a reference
to the oath of the opposite party or for the purpose of securing the enforcement of a judgment not being for the payment
of an acknowledged amount, may be issued by the Court of Magistrates (Malta), or the Court of Magistrates (Gozo) in its inferior
jurisdiction, but may not be issued by the Small Claims Tribunal:
Provided that the warrant of arrest of a vessel or of any other sea going craft may neither be issued by the Court of Magistrates
nor by the Small Claims Tribunal.'';
(b) in paragraph (b) of subarticle (4), for the words ''her clearance; and'' there shall be substituted the
words ''her clearance.'';
(c) paragraph (c) of subarticle (4) shall be deleted; and
(d) in paragraph (b) of subarticle (5), immediately after the words ''on which such person is enrolled'' there
shall be added the words ''or by the officer commanding the vessel on which such person is enrolled,''.
Substitution of article 838 of the Code.
''Precautionary acts.
(a) in the marginal note to the article, for the words
''until final determination'' there shall be substituted the words
''until the cause becomes res judicata'';
(b) the whole article shall be renumbered as subarticle (1) thereof and for the words ''until the final determination
of the cause'' there shall be substituted the words ''until the cause becomes res judicata.''; and
(c) immediately after subarticle (1) as renumbered, there shall be added the following new subarticle:
Amendment of article 838B of the Code.
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''(2) Notwithstanding the provisions of subarticle (1) of this article, precautionary warrants issued under article 830(1)
become executive warrants after that the cause becomes res judicata or when in accordance with article 166B such judicial letter constitutes an executive title, so however that:
(a) in the case of a warrant issued under article 830(1)(b), (c) and (d), the creditor shall file a note within twenty days
in the acts of the same warrant and demand an extension or reduction of the effects of the warrant to an amount equivalent to the
legal costs, interest and the difference in the principal amount due in terms of the judgement, and such note is to
be served upon the debtor and such persons as may have any interest therein;
Substitution of article 843 of the Code.
(b) in the case of a warrant issued under article 830(1)(a), (e) and (f), the creditor shall file an application under the provisions of article 389 within twenty days from the judgement.''.
''Time within which to bring action.
Provided that where the issue of the warrant is demanded by any spouse against the other spouse, and the spouse issuing the warrant
has commenced proceedings in court, the time limit herebefore mentioned shall commence running from such date when that spouse is
authorised to proceed by the court, provided that the warrant shall cease having its effect immediately upon the proceedings being
withdrawn or abandoned.
(2) If the applicant fails, without just cause, to bring such action, the effects of the warrant shall cease and he shall be liable
for all damages and interest.''.
Substitution of article 845 of the Code.
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following new article:
''Applicability of articles 278,
279 and 282.
Substitution of article 846 of the Code.
''Warrant of seizure.
Official consignee.
Applicability of articles 278 to 304, 842 to
844.
(2) When a demand is made for the removal of the seized articles the court shall appoint an official consignee.
(3) The provisions of articles 278 to
304 and articles 842, 843 and 844, shall apply to warrants of seizure.''.
(a) for the words ''without a previous judicial acknowledgment of the debt or claim:'' there shall be substituted
the words ''without a previous judicial acknowledgment or rendering as an executive title of the debt or claim:'';
(b) in the proviso thereto, for the words ''Provided that in the case of ships, other vessels, aircraft, perishable
goods or other deteriorating assets,'' there shall be substituted the words
''Provided that in the case of perishable goods or other deteriorating assets,''; and
(c) in the said proviso, the words ''plaintiff’s claim, the defence raised against such'' shall be deleted.
Amendment of article 847 of the Code.
Amendment of article 848 of the Code.
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Addition of new Sub-title in Book Third of the Code and new articles
848A and 848B.
''Sub-Title III
OF THE WARRANT OF SEIZURE OF A COMMERCIAL GOING CONCERN
Scope of warrant.
(2) The effect of a precautionary warrant of seizure of a commercial going concern is to preserve the totality of the assets
of the going concern, including licences and good-will, to order that same is not sold in part or in whole and are to be concurrently
kept in business, provided that in any case the court shall not accept a demand for the issuing of a warrant if it is satisfied that
there are other means to safeguard the amount due.
(3) The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to protect the rights
belonging to applicant who, prima facie, appears to have such rights.
(4) The provisions of articles 840, 842,
843, 844 and 848 shall apply to this warrant.
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Court to appoint administrator and expert.
(2) The court shall appoint an expert under article 89 and establish a short and peremptory time within which there shall be filed
an itemized list, to be confirmed on oath, of the value of the whole property forming the capital of the commercial going concern.
(3) The appointed administrator shall be responsible for the commercial going concern and shall have the right to sell and administer
the ordinary running of the concern provided that for any decision of an extraordinary nature he shall file a demand in
court for the granting of such authorisation.
(4) The administrator may, if he is of the opinion that the going concern will incur a market loss in its value, demand the court
either to authorise him to sell the whole going concern or any part thereof.
(5) The administrator appointed under this article shall have the right to such payment as the court may, in its discretion,
be of the opinion that is due to him in consideration of the value of the going concern and of the activity undertaken
with regard to the running of the business.''.
Substitution of sub-heading in the Code.
Amendment of article 849 of the Code.
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(a) the words ''articles 842, 844'' shall be substituted by the words ''articles 842, 843, 844''
and
(b) the proviso thereto shall be substituted by the following:
Amendment of article 851 of the Code.
Substitution of sub-heading in Book Third of the Code.
Deletion of articles 855 to
870 of the Code.
Addition of new articles 855 to
872A to the
Code.
''Provided that where the garnishee is a bank, a precautionary garnishee order shall not apply to money payable by the bank in execution of any guarantee given by the bank that it will effect payment on the demand of the person in whose favour the banker’s guarantee is made out; and in any such case, notwithstanding the garnishee order, the bank shall have power to pay out or otherwise dispose of any such money as free from any garnishee order and shall also be entitled to withdraw any such money from any court or other place, or from any person, into which, or with whom, it may have been lodged or deposited, and it shall be the duty of the Registrar of such court or other person in possession or having control over such money to return it forthwith to the bank.''.
''in articles 831 and 832'' there shall be substituted the words ''in subarticle (2) of article 831''.
''Sub-title V
OF THE WARRANT OF DETENTION OF AIRCRAFT''.
''Object of warrant.
(2) The provisions of Article 843 shall apply to this warrant.
A 795
Cap. 232.
Cap. 333.
Warrant to have effect both to seize and to attach aircraft.
(3) A warrant of detention of any aircraft may solely be issued to secure a debt or claim pursuant to -
(a) regulations or orders issued in accordance with article 19 of the Civil Aviation Act in relation to:
(i) airport charges owed at Maltese airports; and
(ii) air navigation charges owed to the Malta Air Traffic Services Limited or such company as the Minister may, from time to time,
by order in the Gazette, establish; or
(b) regulations issued pursuant to article 6 of the Eurocontrol Act in relation to air navigation charges owed to the European
Organisation for the Safety of Air Navigation (EUROCONTROL),
and no other warrant may be issued against an aircraft unless it is a warrant of detention.
(2) The warrant is executed for all effects of the law when notice is served on the person or body referred to in subarticle
(1).
A 796
Display of court order.
Warrant to be sued out on appropriate form.
Warrant available where claim is not less than Lm400,000.
Statement to be contained
in application.
Penalty in case of malicious demand for warrant.
Security for payment of penalty, etc.
Provided that the disembarkation of passengers and the unloading of cargo and luggage on board shall not be restricted, and the operator of the aircraft shall be allowed access to it for maintenance purposes.
A 797
Security for release of aircraft.
Aircraft not subject to the issue of a warrant.
Provided that the security shall be appropriated exclusively to the payment of the creditor:
Provided further that all claims for the release of aircraft shall be dealt with by summary and rapid procedure.
(a) any aircraft exclusively appropriated to a State service, including the postal service, both private and state owned, but excluding
commercial service;
(b) every other aircraft appropriated to the carriage of persons or goods for reward, where such aircraft is ready to start
on such carriage, unless the detention is in respect of a contract debt incurred for the purposes of the journey which the aircraft
is about to make, or of a claim which has arisen in the course of the journey.
(2) The provisions of subarticle (1) do not apply to a warrant sought out by an owner dispossessed of an aircraft by an unlawful
act.
(3) No warrant shall be issued against any aircraft used by military forces.
A 798
Object of warrant.
Warrant to have effect both to seize and to attach the vessel.
(4) If an aircraft which is exempt from detention under this article has been detained, or if the operator or other interested party
has been compelled to give security in order to prevent detention or to obtain a release of such aircraft, the person
effecting the detention shall be liable for any damage which results therefrom on the operator or the owner of the aircraft.
(5) A warrant of detention of an aircraft shall, on an application by any interested party, be rescinded if the court
is satisfied that because of the nature of the journey or the cargo or other circumstances concerning safety, navigation or airport
operation, it is advisable that the aircraft should leave without delay.
Sub-title VI
OF THE WARRANT OF ARREST OF SEA VESSELS
865. (1) A warrant of arrest of any sea-going vessel having a length exceeding ten metres may solely be issued to secure a
debt or claims, whether in personam or in rem, which could be frustrated by the departure of the said ship, and no other warrant may be issued against a sea-going
vessel unless it is a warrant of arrest, and whether such vessel is at sea or at some other place.
(2) The provisions of article 843 shall apply to the warrant.
A 799
The authority in charge of the vessel to be considered official consignee.
Warrant to be sued out on appropriate form.
(2) The warrant is executed for all effects of the law when notice is served on the executive officer of the authority who
has in his hands the sea vessel.
(3) A copy of the warrant of arrest shall also be served on the person whose ship or vessel is arrested, the master
or other person in charge of such ship or vessel, or the agent of such ship or vessel.
287, 288, 289 and 290.
(2) The said authority shall take all necessary measures to display the court order for the general attention of third parties.
(3) For the purposes of this warrant the Malta Maritime Authority shall be deemed to be the authority having in its hands or under
its power or control the arrested ship or vessel.
(4) A vessel is deemed to be in the power or control of the Malta Maritime Authority as soon as the vessel enters Maltese
territorial waters.
(5) All expenses as may be necessary for the preservation of the arrested ship or vessel shall be borne by the party issuing the
warrant, saving his right to recover such expenses together with his claim.
A 800
Warrant available where claim is not less than Lm3,000.
Statement to be contained
in application.
Penalty in case of malicious demand for warrant.
Security for payment of penalty, etc.
Ships or vessels not subject to the issue of a warrant.
(2) The court executive officer shall have the power to adopt, subject to such directives as may be given by the Court or the Registrar of Courts, all such measures as may be deemed necessary for the execution of the warrant of arrest.
(2) No warrant shall be issued against any ship of war.
A 801
Order for the sale of a ship or vessel pendente lite.
Joint and several liability.
(3) A warrant of arrest of a ship or vessel shall, on an application by the Malta Maritime Authority, be rescinded if the
court is satisfied that because of the nature of its cargo or of its length or draught or other circumstances concerning safety,
navigation or port operation, it is advisable that the ship or vessel should leave port without delay.
(4) Following the arrest of a ship or vessel in any port or harbour or in the territorial waters of Malta, and on an application
of the Malta Maritime Authority, a court may, if it is satisfied that because of the nature of its cargo and, or other circumstances
concerning safety or pollution it is advisable that the ship or vessel should leave port and, or Maltese territorial waters, rescind
the warrant of arrest and order that the ship or vessel should leave Malta and its territorial waters without delay.
872B. The court may order the sale of an arrested ship or vessel pendente lite if it appears to the court upon the application of a creditor that the debtor is insolvent or otherwise unlikely to be able to continue
trading and maintaining the asset. In reaching its conclusion the court shall consider all the circumstances connected therewith,
including the nature of the plaintiff’s claim, the defence raised against such claim, if any, and such other steps which
the debtor has taken to secure the claim, or otherwise to preserve the asset.
A 802
Substitution of sub-heading in Book Third of the Code.
Substitution of articles 873 to
875 of the Code.
(2) The liability for the payment of a penalty arising under this article shall be without prejudice to any other possible sanction arising under the provisions of Title XVII of Book Third of this Code.''.
''Sub-title VII
OF THE WARRANT OF PROHIBITORY INJUNCTION''.
''Object of warrant.
Inquiry of court.
(2) The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to preserve any right
of the person suing out the warrant, and that prima facie such person appears to possess such right.
(3) The court shall not issue any such warrant against the Government or authority established by the Constitution or any person
holding a public office in his official capacity unless the authority or person against whom the warrant is demanded confirms in
open court that the thing sought to be restrained is in fact intended to be done and the court is satisfied, after hearing the explanations
given, that unless the warrant is issued the prejudice that would be caused to the person suing out the warrant would be disproportionate
when compared with the actual doing of the thing sought to be restrained.
A 803
Warrant to secure debt or claim.
Cap. 56.
(4) If on an application, it is proved to the satisfaction of the court that subsequent to the issue of the warrant of prohibitory
injunction the person restrained has acted directly or indirectly in breach of the court’s order, the court shall, without prejudice
to any other action competent to it at law, at a request of applicant, condemn the person against whom the warrant had been issued
to remedy what was committed in breach of its order and to authorise in default the applicant to carry out such remedial works as
the court may direct at the expense of the person restrained.
874. (1) A warrant of prohibitory injunction may also be demanded by a creditor to secure a debt or any other claim amounting
to not less than five thousand liri. The object of such a warrant is to restrain the debtor from selling, alienating, transferring
or disposing inter vivos such property as may be indicated in the application by onerous or gratuitous title or in any manner creating a burthen or real and,
or personal rights; provided that such a warrant shall not apply to the constitution of any right on, or alienation or transfer of
any property made pursuant to a court order, or over bank guarantees and letters of credit.
(2) Where a warrant prohibits the sale, alienation, transfer or other disposal of immovable property the application shall contain
all the particulars relating to the person against whom it is directed that are required by law in respect of the registration
of a transfer of immovable property by such person in the Public Registry. Where the warrant refers to specific immovables, the application
shall describe them in the manner provided for in the Public Registry Act, in respect of notes of enrolment, namely it shall apply
with reference to the geographical data in question.
A 804
Execution of warrant.
(3) The warrant referred to in subarticle (2) shall upon its issue and at the expense of the applicant, be served
by the Registrar within twenty-four hours on the Director of the Public Registry and the Land Registrar or on such authority as may
be nominated by the Minister responsible for justice, who shall forthwith register the same in books kept for the purpose.
Such books shall be indexed and accessible to the public. It shall also be served upon any person indicated by the applicant.
(4) Upon registration of the warrant referred to in subarticle (2) by the Director of the Public Registry, any future sale,
alienation, transfer or disposal of immovable property to which the warrant refers shall be void and to no effect.
(5) Without prejudice to the provisions of article 836, the warrant referred to in subarticle (2) shall, unless previously revoked
or otherwise ceasing to be in force, continue to have effect for a period of one year from the date of final judgment in favour of
the creditor in his action for the recovery of the debt or claim referred to in subarticle (1).
(6) Where a warrant prohibits the sale or transfer of the shares in a commercial partnership, notice shall also be served on the
Registrar of Companies and from the date of such service any transfer of shares shall be null.
Provided that the court may, in urgent cases, reduce the said period in this subarticle. In default of opposition, the court may accede
to the demand.
A 805
(2) The court may initially issue provisionally a warrant for a short period under such terms and conditions as it may deem
necessary according to the case, and subsequently decide about the matter in a definitive manner.
(3) The court shall, after appointing the application for hearing, decide on its merits after receiving any evidence it
deems fit, within the shortest time possible but not any later than one month from the day when the warrant had been filed and confirmed
on oath.''.
(2) Immediately after article 876 of the Code there shall be added the following new article:
''Applicability of certain articles.
844 shall apply to the warrant of prohibitory injunction.''.
173 to 178, and 180 to 184 of the Courts and Tribunals Procedures
Act, 2002 shall be deleted.
(2) Notwithstanding the provisions of subarticle (1), proceedings commenced before the court in accordance with article
370 of the Merchant Shipping Act before the coming into force of this article shall continue to be regulated by the said article 370
until they become res judicata.
Amendment of
Act XXXI of
2002.
Consequential amendment to the Merchant Shipping Act. Cap. 234.
Amendment of the Commissioner of Land Ordinance. Cap. 169.
"Assignment of duties.
A 806
Amendment to the Prevention of Money
Laundering Act.
Cap. 373.
Transitory provision.
(2) Notwithstanding the provisions of subarticle (1), all rights and responsibilities to which the duties assigned in accordance with subarticle (1) relate shall, by virtue of article 2, remain vested in the Commissioner of Land.".
Provided that any precautionary warrant which shall still be pending on its date of commencement of this Act shall, as from such commencement
date, be regulated by the provisions of this Act.
Passed by the House of Representatives at Sitting No. 427 of the
26th July, 2006.
ANTON TABONE
Speaker
RICHARD J. CAUCHI
Clerk to the House of Representatives
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