An analysis of the scope of article 1037 of the civil code in the Maltese construction sector

Abstract

Over the past decade, Malta has experienced a construction boom. One of the consequences of this construction boom was an increase in construction related incidents which more often than not lead to damages being caused to third parties. Most incidents arise due to a lack of competence on the part of the workers. Therefore, the Courts have addressed the issue of assigning responsibility by applying the concept of culpa in eligendo which is a form of vicarious liability enshrined in Article 1037 of the Civil Code, Chapter 16 of the Laws of Malta. This Article holds an employer liable for damages caused by an incompetent employee while performing work or services on the employer’s behalf. However, the attribution of liability to the employer under Article 1037 is not always clear-cut. This Article lacks a statutory definition of an “incompetent” person;thus, when assigning responsibility, the Court’s interpretation of the competence of a worker who caused damage may vary. Furthermore, the Maltese Courts have established that Article 1037 can also hold the employer liable for culpa in vigilando, meaning a failure in supervision. Such failure is witnessed in construction site incidents where a contractor or site manager should have been supervising the ongoing works, but failed to continue supervising them. This often leads to careless work not up to the standards imposed by law. Despite the scope of this Article being widened by the Courts, Article 1037 was never statutorily amended. This dissertation concludes how Article 1037 applies beyond culpa in eligendo, with particular focus on how it is applied in the construction sector. The author also provides an amended version of the Article to include culpa in vigilando. This dissertation reflects the legal framework as it stood in Malta up to April 2025.