Warrant in factum : an assessment

Abstract

The Research Project entitled the ‘Warrant in Factum: An Assessment’ is a study which focuses on providing a detailed analysis of the Warrant in Factum; an executive warrant or action, which has seldom been resorted to, despite its legal function in enforcing the fulfilment of an indebted obligation which has been declared certain, liquid and due by a competent court. Primarily, the project provides a diagnosis of the enforcement mechanism found in the Maltese Legal System. Subsequently, an overview of the Warrant in Factum is produced, where thereafter follows an intrinsic analysis of the source of the executive action, its development since the birth of the Code of Organization and Civil Procedure in 1855 and a comparative study of similar executive actions found in foreign legal systems. Ensuing, the study enlists and delves into the legal exigencies which are either provided for in the law or which have been determined through the limited number of judgements available, and which must be satisfied in order for there to be the issuance of the Warrant in Factum by the competent court. Subsequently, the Research Project examines Protocol 4 Article 1 of the European Convention on Human Rights prohibiting the deprivation of liberty on ground of mere inability to fulfil a contractual obligation, with the purpose of analysing the limits of the executive action’s applicability and whether enforcement by means of a Warrant in Factum is in accordance to the respectful convention. Penultimate, an analysis of the Procedure, from the initial stage of a creditor applying for a Warrant in Factum to the conveyance of the delinquent debtor to prison is provided. In conclusion, the Research Project considers the possibility of potential amendments and improvements to the Warrant in Factum, encouraging further studies, by means of accumulating all the findings and results.