Exploring the evolution and contemporary relevance of ‘il giuramento decisorio’ in Maltese law and jurisprudence

Abstract

This dissertation examines the evolution and contemporary operation of Article 2160 of the Civil Code and its regulation of the ‘ġurament deċiżorju’ within the law of short prescription in Malta. Historically, the ‘giuramento decisorio’ functioned as a creditor-deferred, conscience-based evidentiary mechanism rooted in Roman and continental civil-law traditions. The 2017 amendments to Article 2160 fundamentally transformed this structure by converting the oath into a debtor-initiated procedural requirement triggered by the plea of short prescription. The reform abolished the oath’s automatic probative effect, integrated it into prescription law, and subjected it to judicial scrutiny and cross-examination. This study analyses whether the amended provision preserves the legislator’s original intent and whether it continues to fulfil a coherent function within Maltese civil justice. Through historical analysis, examination of parliamentary debates, and detailed review of pre- and post-2017 jurisprudence, the dissertation identifies a structural shift from decisory finality to procedural conditionality. Comparative reference to Italian and French civil-law models highlights Malta’s departure from classical continental doctrine. The findings demonstrate that the reform generated doctrinal ambiguity and diminished the oath’s traditional moral foundation. Article 2160 now occupies a hybrid position: procedurally mandatory yet substantively consequential, indispensable but no longer decisive.