The benefit of the separation of estates

Abstract

As a system, law seeks to regulate the relations of individuals in a society on as much a basis of fairness as is possible; it seeks to protect the individual's rights in harmony with the common good. Therefore the system also provides the machinery whereby the common citizen is enabled to safeguard and enforce his rights in case of actual infringement or the danger of infringement; thus besides redress in court, the law provides also a number of preventitive measures for the protection of such rights. The institute of the Benefit of the Separation of Estates, coming all the way from Roman law, is deemed by many to be a means whereby an indivdual is protected by preserving a right which is already his: the right to bo paid any credit owing to him by his debtor in whom he placed his confidence. This institute in Malta surprisingly has not gained much ground. In fact there is little if any case law on the subject and it is known to be rarely if ever used. Because of thisfact, in writing this thesis, I have had to draw extensively from the works of foreign authors and some foreigncourt decisions in the hope that their arguments and myconclusions will give us a better understanding of the hitherto obscure institute. To start with, I have considered it important to give a brief introduction dealing with some principles on the law of succession and principles regarding the law of security; indeed it is against the background of these institutes that the institute under consideration can be most properly understood.