Effects of alienations of res alienae

Abstract

This thesis deals mostly with article 1422 of the Civil Code, which although at first sight might appear to be straight forward and easily interpretable, yet when one delves into the intricacies of this article one finds many gaps in our law which unfortunately have as yet not been tackled by our case-law. As one will notice the first chapter is devoted entirely to the raison d'etre of this article and the conclusion to be derived from such a raison d'etre confirms the modern notion of sale which is the transfer of the ownership of the object of sale between the parties. The law never mentions such a requisite explicitly but this can be inferred from article 1422 and thus an important characteristic of the contract of sale comes to light. This characteristic has now been mentioned explicitly in the Italian Civil Code amongst the obligations of the seller. As Sir Adrian Dingli states, this article was elicited from similar provisions of other modern Codes of the time. This being so, it is only logical and natural that a lot of reference is made to the French article 1599 (similar to our article 1422) and French jurisprudence, and reference is also made to the old Italian article 1459 (identical to our article 1422) and Italian jurisprudence to help give an interpretation as exhaustive as possible to the many problems which arise from article 1422. I have devoted a long chapter to the new Italian law of 1942. The reason behind this lies in the fact that the Italians have not only revolutionised the law in the recent past but have put a new light on various aspects of the law which denotes the modern trend of thinking but which, without legislative measures, cannot be adopted in other countries such as Malta. The Italians have put an end to the controversy as to the type of nullity a sale of a res aliena. In fact. they now have the so called vendita a titolo obbligatorio, burdening a seller who had no title to the object sold, to acquire such title from the true owner. Thus in Italian law a sale of a res aliena has been rendered valid. Rescission may only be demanded if the buyer was unaware that the object belonged to third parties and provided that meanwhile the seller has not as yet acquired the ownership for him. As will be seen, the position in Malta is far from being as clear cut as this. All is subject to controversy since our law like the French law does not clearly state what it means. It only states that the sale is void, giving no indication of what type of nullity the legislator was thinking of or who could raise such nullity. Similarily the law only states that a buyer in good faith is entitled to damages but then makes no mention of what such damages consist of. This is not the Italian position which explicitly mentions the type of damages and the modality by which they are apportioned. Thus to give a clear and more effective description of the Italian position, I have devoted a separate chapter. Finally I have dealt with some aspects of law where the question of res alienae might arise and I have tried to inquire into whether the effects of such alienations are a constatation of the principle enunciated by article 1422 or whether they are exceptions to it.