The liability of the owner of a building under Article 1041 of the civil code

Abstract

The objective of this thesis is to conduct a comprehensive analysis of the liability of the property-owner under Article 1041 of the Maltese Civil Code. One of the central questions in this work is whether Article 1041 offers adequate protection to the victim who suffers harm to his physical being, health or property as a result of the collapse of a building. A study of Article 1041 in the context of its history and other European legislative provisions dealing with the liability for the harm caused by property was conducted in order to explore whether Article 1041 adopts a pro-property-owner approach or not. Moreover, this thesis examines the manner the Maltese Courts have interpreted the wording of Article 1041. Given that in Malta, unlike other jurisdictions such as Italy and France, our Civil Code fails to cater for a provision regulating the liability of the custodian of a thing, this thesis explores whether our Courts interpret Article 1041 in a broader context to include the liability of the occupier of a building, who is not the owner, within its scope. From the judgments reviewed, the author concludes that Maltese Courts exclude the liability of such occupier from the scope of Article 1041. Besides the aforementioned, this thesis delves into the issue as to whether our Courts are more inclined towards protecting the interests of the property-owner or whether a presumption of fault is in practice imposed on the tort-feasor to enable the victim to seek better redress. Two of the cases reviewed, which were both delivered by the Court of Appeal, interpreted Article 1041 as imposing a presumption of liability on the property-owner. Unfortunately, however, Maltese jurisprudence has not been very consistent on this point. In fact, subsequently another judgment delivered by the Court of Magistrates disagreed with the decisions of the Court of Appeal and held that the presumption of liability of the property-owner does not exist in our legal system. Since the doctrine of binding precedent is not present in Malta, there appears to be little possibility that the Court of Appeal can of its own motion change the interpretation of Article 1041 and bind subsequent decisions. There is always the possibility of having judgments in the future, similar to the one delivered by the the Court of Magistrates, which will adopt a restrictive approach to Article 1041. In order to clarify the position once and for all, a legislative reform is needed.