Pre-contractual duties of information and the impact on the notary in relation to the sale of immovables

Abstract

The question which the term paper discusses is at what stage should liability be incurred on the contractual scene. Are the Maltese courts still recognising liability at a precontractual stage? Who should incur damages when damages are due and what type of damages? The term paper will also compare the position in various European countries besides Malta, to determine the relationship between the pre-contractual duty to inform and the notion of good faith. This paper also hightlights the juridical implications deriving from the duty to inform at the pre-contractual stage, in so far as the rights and obligations of the contracting parties in contracts involving transfer of immovables as well as the possible repercussions in case of non-observance of the duty of disclosure. The paper focuses also on the role of the notary and his legal position during negotiations and discusses how this duty to disclose applies to notaries vis a vis the contracting parties. The paper will delve into situations where clients of notaries have had to face consequences (as a result of failure to disclose particular information within a reasonable time from the part of the vendors regarding the property being transferred), such as the rescission of the actual contract on the grounds of error or fraud as vices of consent. It will also discuss the duty of the purchaser of an immovable property in regard to carrying out the necessary due diligence (according to the respective legal systems) in order to attain the relevant information on the said immovable property which he/she is about to purchase. This term paper will also focus, through a local jurisprudential approach, on the precontractual duties of information being attributed to the notary and tries to discover the reasoning behind the decision of the courts in instances where the notary failed to respect such duties and furthermore gave out wrong legal advice, the recognition of the courts that compensation is due when wrong legal advice is given by the notary and the recent interpretation by the courts on the responsibility of the notary towards the contracting parties, which needs to be illustrated particularly on giving the correct information through diligence.