Pre-contractual liability in the Maltese mixed jurisdiction : a comparative analysis

Abstract

This dissertation studies the stance adopted by jurisprudence in the Maltese Mixed Jurisdiction vis-à-vis pre-contractual liability; through a structural analysis of the doctrine in question in the framework of the Mixed Jurisdiction, making comparisons with other jurisdictions to identify this stance. The first chapter introduces the concept of pre-contractual liability through a historical delineation of this doctrine as propounded by Von Ihering and other Continental jurists namely Chironi, Fagella & Saleilles. On the other hand, the restrictive approach of the Common law school of thought is identified. As Vernon Palmer notes, Mixed Jurisdictions are often sites of encounters between legal concepts coming from different legal traditions. This perspective is adopted in this thesis to examine pre-contractual liability in Malta; where the gap between private law and public law broadly corresponds to that between Civil and Common law. The second and third chapters examine the development of pre-contractual liability in selected Civilian, Common law and Mixed Jurisdictions; namely Italy, France, Germany, England, Scotland, South Africa and Israel. This exercise contrasts the broad Civilian acceptance of pre-contractual liability, underpinned by notions of good faith, tort and sui generis statutory provisions to the more restrictive Common law approach; which nevertheless does exceptionally allow for pre-contractual liability. The Mixed Jurisdictions reviewed are close to this Common law position with the partial exception of Israel. The final chapter seeks to analyse the position of Malta as a Mixed Jurisdiction with respect to pre-contractual liability. Some court decisions have echoed Common law positions whereas others reflect various Civilian approaches. Unlike the other Mixed Jurisdictions reviewed, it proved impossible to allocate Maltese law on pre-contractual liability firmly within either the Civil law or the Common law approaches to the doctrine. In particular, pre-contractual liability vis-a-vis the government has evolved in a manner which draws upon principles from both the Civil and the Common law traditions. The result in this field suggests an inconsistency which should be set off against the flexibility which Maltese judges have employed in order to develop pre-contractual liability in private law.