Doubts experienced by notaries and parties in promise of sale agreements : a comparative study

Abstract

The four articles of the Civil Code, Chapter 16 of the Laws of Malta, which regulate the promise of sale agreement hardly do justice to the importance of such an instrument and its frequency on a daily basis. The aim of this thesis is to analyse these articles in the light of doubts, which the parties to such an agreement and the notary who prepared it generally experience. I have attempted to state the position as on 1 May 2012. Chapter 1 gives a practical overview of the process of the promise of sale agreement to the final deed of sale in Malta and in other civil and common law jurisdictions. Chapter 2 delves into the importance and relevance of the promise of sale agreement today, when compared to the actual notarial deed of sale and whether the promise of sale agreement can amount to an actual sale. Chapter 3 describes the notion of the deposit paid on the promise of sale agreement and explains the difference between a deposit paid in earnest and that paid on account of the price of the property. Chapter 4 examines the manner in which Act XXIV of 2011 has assisted in reducing many of the doubts that notaries experience in their work. Chapter 5 considers the doubts felt by purchasers towards the promise of sale agreement due to the lack of the proper regulation of the latter and examines how Act XXIV of 2011 has reduced some of these doubts. Chapter 6 examines the doubts felt by sellers toward the promise of sale agreement, once again due to the lack of proper regulation of the latter and delves into judgements that resolve some of the doubts. Chapter 7 provides a number of proposals to resolve the doubts that arise due to the lack of proper regulation.