Concurrent liability and Maltese law : comparative and jurisprudential perspectives

Abstract

There is a conceptual difference between torts and contracts, and in the Maltese Civil Code these two sources are dealt with in different sections of the law. Contract regulates the relationship between parties and one party is entitled to sue another for breach of contract. However in tort, there is no agreement or prior relationship and it thus involves a responsibility for the payment of damages in cases where a person causes harm to another independently of any prior contractual relationship. The problem of concurrent liability refers to a situation where there is an overlap between contractual liability and tort liability arising from the same fact. When a plaintiff is injured and seeks compensation he may express his claim as one either in contract or in tort. A plaintiff can never recover twice for the same injury, and commonly in Malta, it is left up to the discretion of the Court to decide on which basis the case is classified, as one falling under contract or tort. This thesis will shed light on how the issue of concurrent liability and the problems it brings with it, is dealt with by Common law and Civil law judges. Since Malta is a mixed jurisdiction, deriving its influence from both civil law and common law sources, this thesis will also endeavour to explore which legal regime has had the most influence on the local issue of concurrence of actions; whether court judgements are closely effected by the French non-cumul rule, whether they have drawn from other civil law jurisdictions, or alternatively, whether they have combined the teachings of both civil and common law jurisprudence and doctrine to produce a purely unique procedure with which to solve the problem of concurrent liability.