Law relating to foundations

Abstract

In this report the Commission reviews the law relating to foundations. The Commission has noted that the position in Malta on this subject faithfully reproduces the approach taken by the compilers of the French Civil Code in the nineteenth century. The position has, since then, remained unchanged in Malta. The Commission feels that a legislative enactment to regulate the matter is needed, and has carried out a study of the topic, noting the developments taking place in other European countries, with a view to proposing a concrete legislative enactment. A vital aspect of the report is the attitude to be taken with regard to the juridical nature and personality of the foundation. Much of what is said in the report flows naturally from the conclusions of the Commission on these points. Briefly the attitude of the Commission has been that the personality of the foundation derives from the act of will of the individual who sets it up, and the State intervenes in the matter to protect the public interest, ensuring, among other things, that foundations are set up for a lawful purpose. The Commission therefore suggests the creation of a registration system with regard to foundations in order better to safeguard the public interest as well as the creation of procedures to ensure that foundations function in accordance with the law and with the aims set out for them by the founder. A further point to be made is that the report limits itself to dealing with private foundations but does not deal with family foundations and ecclesiastical or religious' foundations. It also does not deal with public foundations. The report inter alia deals with the following matters:

1. The juridical personality and nature of the foundation;

2. The setting up of a registration system;

3. The rights and duties of persons entrusted with the administration and control of foundations;

4. The dissolution and winding up of foundations.