Promise of sale

Abstract

One cannot query Rowell's common sense observation that "an acre of performance is worth whole land of promise". This is most applicable to every day life, There is not however a single square foot of land in Malta, and in most other countries, which before being sold and transferred to others does not, in the first place, form the subject-matter of a promise. The mind has a tendency to anticipate the future, to create a determination and a violation which can only have its effect at some later date. This may be a popular definition of what a promise means, and is equally applicable to the most commonplace declarations of future intentions. It is indispensable, however, that there should be an external manifestation of this internal act of the mind, if the promise is to have all its intrinsic elements. If one passes to the legal field, the most familiar example of a promise that comes to mind is undoubtedly the promise of marriage, being connected with one of the most basic, though by no means base, instincts of man. The future spouses manifest their volition to be husband and wife at a future date, which promise each side accepts and reciprocates, though there is no guarantee that this reciprocity is irrevocable. This is an example of a bilateral promise, but there is no incongruity in having a unilateral promise which comes from one party, accepted by the other party, but in no way reciprocated. This study focuses attention on unilateral and bilateral promises of sale under Maltese Law. Although judicial precedent has theoretically no binding force in Malta, this institute is one of the best examples of the correlation of written law and judicial interpretation, and the transformative influence that the latter can have on the former. In the course of this study, an attempt will be made to assess the 'law' currently in force through judicial interpretation, tracing its evolution from the written word. It is sought to evaluate the present position in relation to the intentions of the legislator, humbly and respectfully disagreeing at times with judicial precedents in an attempt to restate a true interpretation. The institute also attracts the attention of the legal reformer, as practice has shown important deficiencies in the rather telegraphically short at times, cryptic, provisions. The law on promises of sale, especially of immovables, regulates an important economic activity, and it is essential that there should be clarity and certainty in these legal principles. Amendments are suggested in this study, bearing in mind the difficulties encountered by the Courts and in practice.