The rules regulating judicial sales in Malta

Abstract

The judicial sale, dealt with in Subtitle II of Title VII of the Code of Organisation and Civil Procedure (Chapter 15), is one of the most ancient methods of enforcement of judgements and other executive titles) stemming from Rom.an Law. In simple terms, it involves the seizure of the property of a debtor by his creditors and the sale of the same under the authority of the Court in order to satisfy his debts. It is an institute meant to secure that justice and fairness e take place both with the debtor, as will as vis-a-via his creditors. It may be performed on moveable and immoveable property alike and three elements must be present for its execution, namely: (I) An executive title (II) A credit (III) Ownership of the property by the debtor. The executive titles in our Law are enumerated in section 251 of the COCP. These consist of the following: (a) Judgements and decrees of the Courts of Justice of these Islands. (b) Contracts received before a Notary Public in these Islands, or where the contract is in respect of a debt certain, liquidated, and due and not consisting in the performance of an act: (c) Taxed bills of judicial fees and disbursements unless such are impugned according to Law: (d) Awards of Arbitrators In order to proceed to the judicial sale by auction there must also be a credit. The credit must be due and consist of a pecuniary obligation and not an obligation to do or not to do something. The law always speaks about the property of the debtor and hence the execution by judicial sale may only occur with regards to property belonging to the debtor. If the property concerned is owned commonly or jointly with others, the judicial sale cannot be proceeded with before the partition or liquidation of that property is effected, in such a way that the portion belonging to the debtor remains easily and clearly identifiable. The property to be put up for judicial sale cannot belong to a third party but must always lie within the ownership of the debtor.