Dissolution through default in the Contract of Emphyteusis

Abstract

This thesis attempts to analyse the grounds and the legal doctrines upon which the local Courts award dissolution of the legal institute of emphyteusis. Its particular nature necessitates a brief analysis of the essential elements of this contract as well as a theoretic suggestion of its origin, possibly from a rudimentary system of land holding that was practiced in ancient Babylonia. This institute was granted legal recognition and enforcement when it was incorporated in the Roman codification of laws. An outline of the legal articles conferring dissolution is made, in order to enable a comparative analysis with Maltese Jurisprudence in the first Chapter of this thesis. The second and the third Chapters, on the other hand, analyse the principles and ideologies behind Court decisions that dissolved emphyteutical concessions on grounds of default in the payment of the ground rent and of the maintenance of the grant by the emphyteuta. These two justifications of dissolution are explicitly stated in law. Nevertheless, actual Court decisions have reflected varying trends throughout time, at times even solving similar dilemmas by coming up with opposing views and decisions. The third category of Court decisions that dissolved emphyteutical contracts has been assembled from cases in which breaches of the stipulated conditional clauses have been carried out by the emphyteuta, such as the a/tus non tollendi clause. This category which is not specifically referred to under the law of emphyteusis, has given rise to a number of complicated situations and eventual judicial doctrines. Maltese Jurisprudence is contrasted with Italian Civil laws on emphyteusis, together with specific Court decisions. The concluding part of this study has attempted to outline areas for improvements in the regime of emphyteusis, in the hope of bringing the law more close to the actual Court practices.