Fraud as a vice of consent : developments in Maltese jurisprudence since 1981

Abstract

Fraud is purported to be a broad term comprising of all the multifarious deceptive means which are resorted to by a party to get a benefit over the other. This thesis is aimed to analyse fraud in view of its elemental prerequisites, together with other ancillary concepts, and the inherent remedies which may lead to contractual and tortuous liability when fraud frustrates one of the fundamental attributes for a valid contract. The point of departure in this comprehensive discussion is a historical delineation of the origins of fraud, focusing particularly on Roman law where a number of general principles and remedies can still be traced. Nevertheless, its reception and transmission on the Code Napoléon and the 1865 Italian Civil Code was not faithful, unlike the Maltese Civil Code which is a revised version of Roman law. This distinction will provide a methodical assessment of the influence of Roman law in the framework of the French, Italian and Maltese law systems. The thesis then proceeds to explicate the changes of the nineteenth century in the interpretation of fraud. The adherence to good faith and its counterpart, the duty of disclosure have led to a change in the common criteria of fraud, such that truthfulness and genuineness of contracting parties prevail. This approach enables the Courts to take into consideration the freedom of contract and modern standards of behaviour to establish whether fraud ensues. The study then shifts to an exploration of this vice in light of Maltese jurisprudence since 1981, to illustrate whether the eminent changes to the law of contracts have been reflected in the decisions of the local Courts. This research reveals that the four elements espoused by Giorgi have been progressively adhered to. Notwithstanding that the constituent of intent has been acknowledged by various continental jurisdictions, the degree of importance diverges. Whereas in the earlier Maltese judgments, the Courts requested proof of the mala fede to ascertain whether the practised artifices were fraudulent, in recent years there has been a growing tendency to investigate the intent of a party to determine fraud. Lastly, a comparative overview to identify the stance adopted by the German, French and Italian jurisdictions in the light of this vice shall be highlighted. In addition, other intrinsic concepts of fraud, including third party fraud, the extent of liability by omission, and the applicable remedies shall be evaluated.