A critical review and analysis of the conflicting judgements relating to the ‘Actio Pauliana’

Abstract

Whilst the precise time and date of the introduction of the actio Pauliana is not known, it has been determined that it was introduced by the Roman Pretor Paulus. With such a longstanding history, development of the action was inevitable. Evidently however, whilst foreign jurisdictions have developed their laws to reflect the changes and adapt to the current realities of the day, the Maltese legal situation, at least on paper, remains virtually unaltered since the introduction of the action way back in 1868. This is why the Courts of Malta have always used their discretion in carefully analysing Article 1144 of Chapter 16 of the Laws of Malta, which deals with the actio Pauliana. The result of this however is that conflicts are prevalent in the manner that Courts interpret this action, especially when dealing with its applicability and with the remedies afforded to the injured party. The most pertinent conflicts are related to the concept of the creditor and debtor, and to the fact that, whilst some judgements deem it imperative that damages are awarded, others insist that since the law does not speak of damages when tackling the action, they should not be granted at all. This study therefore seeks to understand the reasoning behind the conflicts, particularly by analysing a substantial amount of cases that have tackled the actio Pauliana. Towards the end of this term paper, it becomes apparent that the law needs to be substantiated in order to reflect the realities and the wider interpretation that has been associated particularly with the notions of ‘credit’, ‘creditor’ and ‘debtor’.