Liability for omissions under Maltese tort law

Abstract

Despite the fact that both Maltese law and jurisprudence state quite clearly that one can be held liable for all positive acts which give rise to damage, the same question cannot be answered as easily in regard to omissions. As Helmut Koziol has recently observed, highlighting the comparative dimensions of this issue, the problem of whether and to what extent one may be held liable for omissions remains a contentious issue. This term paper therefore attempts to explore this thorny question. It will first analyse the antecedent models upon which Maltese law of tort is constructed. Our system has been highly influenced by the French system and the German system. The term paper will also shed light on the Italian system. By setting out the main commonalities and distinctions between the various legal systems, there will be a better understanding of the hybrid logic that haunts our own provisions relating to tort. Whilst Article 1033 of the Maltese Civil Code specifically makes reference to “omission[s]”, Articles 1031 and 1032 of the Maltese Civil Code do not expressly mention this term. Hence, are omissions included within the ambit of Articles 1031 and 1032? Is proof that a duty laid down in written legislation has been violated a necessary prequel to holding a person liable for omissions? This term paper will attempt to answer these questions by analysing the relevant jurisprudence. One is generally held liable for an omission if a specific provision of law imposing a duty has been violated. However, there are exceptions to this strict-liability approach which cannot go unnoticed. Finally, pertinent solutions will be proposed so as to minimise, as much as possible, the ambiguities arising from the wording of our articles.