False starts and broken promises : some mishaps in the development of Maltese consumer law

Abstract

Consumer protection has become an integral part of our law.This was not always the case and significant consumer protection laws have only been adopted during these last 20 years.This subject is best viewed against the backdrop of the fundamental objectives of law. One objective is to protect weaker parties in situations where their weakness could be unfairly exploited. Consumer law is the recognition that unregulated market forces are insufficient to prevent undesirable consumer loss and dissatisfaction. Consumer protection, as we now know it, was more or less inexistent until the start of the 1990's. Roman law never developed a notion of the "consumer". In the 19th century, the Napoleonic Code Civil re-stated but retained the fundamental concepts of the Roman law of sale. Our Civil Code, like other codification efforts that preceded it, made no reference to the concept of "consumer".The Maltese Civil Code has not changed much since its original introduction in the late 19th century.This partly explains why our Civil Code still fails to recognize the consumer: Instead, references to the consumer are now found in several important local laws, but not in the Civil Code.The Civil Code may not exactly be "hostile" to. the consumer but it is certainly"indifferent''The same applies to the Commercial Code. One must therefore look elsewhere to find where and how Maltese law has recognized the concept of"consumer". Since 1990, Malta has registered considerable achievements and remarkable progress in this area. One can point to a number of important landmark events, including the 1991 white Paper "Rights for the Consumer", the establishment in 1992 of a new government department dedicated exclusively to consumer affairs, the highly innovative Consumer Affairs Act 1994 which inter alia introduced the Consumer Claims Tribunal, the concept of moral damages and the regulation of pyramid schemes, and finally the Product Safety Act of 200 I and the Metrology Act of 2002. Despite these positive reforms, there is still a case for suggesting that consumer law in Malta is less than the seamless and coherent systematic sequence of triumphant and successful initiatives that the official and orthodox view would have us believe.The truth is quite different and this brief paper shall review some misadventures where things were done badly or have not quite succeeded as intended. These events constitute landmarks in their own right and deserve to be highlighted perhaps for the wrong reasons; witnesses to inexperience, lack of preparation, incompetence or folly.