‘Unlawful consideration’ in the light of recent developments in doctrine and jurisprudence

Abstract

The meaning and application of unlawful causa is strictly linked to the principles of morality, public policy, and legality; as is made clear by the provisions regulating the concept of causa in the Civil Code. Public policy and morality are dynamic legal principles which are based upon certain intrinsic social values. By exploring the way these principles have been applied and interpreted by Maltese courts one may attempt to arrive at an understanding of the values underlying these principles in the Maltese scenario. This thesis considers these issues both from a historical perspective as well as in relation to more recent jurisprudence, with the aim of reaching conclusions regarding the development of these principles. This thesis sets out to identify the different areas of application of morality and public policy as expressed by traditional jurists and as interpreted by Maltese courts; in practice doctrine and jurisprudence are both, by and large, directed towards the same areas of application. Furthermore, observations were made in relation to the historical development of these principles by considering older judgements. It thus concludes that the Catholic Church has played a primary role in the formation of these principles in Maltese society. Finally, the aim of this exercise was to conclude whether some form of change may be noted in the application of these principles or whether such change is foreseen in the nottoo- distant future. It appears that Maltese social values are currently in a transitional stage. This conclusion was reached after considering recent judgements and the direction towards which newly-enacted legislation is addressed. Also, it is pertinent to note the developments in Italy and France which may lead the intepretation of the Courts towards the inclusion of general principles such as those underlying human rights to be considered as a matter of public policy.