A critical examination, in the light of the principles of contractual freedom, of the justifications for Act XXVIII of 2019

Abstract

This paper explores the justifications for Act XXVIII of 2019 in the light of the principles of contractual freedom. The study starts with a historical overview of Maltese rental laws with the intention to clearly demonstrate the problematic areas and legal implications that have emerged over the years. This context was considered vital to contrast against the desired legal objectives of Act XXVIII. Reference has been to Maltese Constitutional Court decisions and to judgements of the European Court of Human Rights. The study proceeds to delve into different opinions regarding contractual freedom and touches upon other pieces of legislation that influence the application of the pacta sunt servanda legal principle. A critical examination of the provisions contained within Act XXVIII was conducted in order to extract the instances where the law has infringed on the contractual freedom of the parties. The intention was to primarily identify the extent of State legislative intervention and how the law may effect the individual parties to the lease agreement. A tabular representation of the resulting rights and obligations of each party has been compiled. A further comprehensive analytical study was conducted into the dispute claims submitted to the Private Residential Leases Adjudicating Panel in order to uncover the main areas of disagreement between landlords and tenants under the Act, the results of which have also been represented in tabular format.