The conditions for the validity of payment as a means of extinction of obligation

Abstract

In title IV "Of obligations in general" of chapter 16 of the laws of Malta, the civil code, in its sub-title V of this title, "Of the modes of extinction of obligations", payment is one of the seven types of extinction of obligations. The opening section 1146 states that "payment means the performance of an obligation whether the subject-matter of the obligation is to give or to do". Generally when one thinks of payment, one would automatically think of money, however although this is generally true, yet according to this section of the law it includes also the obligation to do. For the purpose of this thesis i would be limiting my discussing on payment when the subject matter of the obligation is to give. The old Roman law position of payment was said to be complete, only, when the actual payment was carried out in the presence of five witnesses all Roman citizens and who have all reached puberty. The payer has then to say the following solemn words: - "Quod ego tibi milibus sostertiorum condemnatus sum, me eo nomine ate salvo liberoque hoc aere enerque libra. Hanc tibi libram primam postremanque ex pendo (secumdum) legem publicam". Following this the payee would receive the payment in bronze as a full means of redemption. In this old formula of payment, therefore, the extinction of the obligation comes into being, only from the very union of the form with the real performance of the price.