The legal actions afforded by Maltese law to the creditor, for him to protect his credit and other real rights

Abstract

Civil Law affords several remedies to the creditor in order for him to be able to safeguard and eventually get paid of his credit. Hence, the objective of this thesis is primarily that, to focus on the legal tools which enable the creditor to protect his· real rights, and to secure the future payment of his credit. . After a brief overview of the institutes of the lawful causes of preference, which guarantee to the privileged creditor the right to be paid before all other competing simple creditors, the thesis will then proceed to analyse the provisions which offer the creditor sufficient means of securing and protecting his credit under the law of mortgages. Chapter Four will then concentrate on executive acts which constitute an effective tool that the creditor may resort to, in order to protect his credit. Executive acts ensure the effective and honest administration of justice without any delay or abuse in its execution. Maltese law contemplates various executive titles that ensure their holder the expedient execution of the law. Such executive titles may only be enforced by the executive acts found in the Civil Code, which represent the coercive means indispensable for the enforcement of the law. Following the chapter on executive titles and executive acts, the thesis will then proceed to delineate executive acts from precautionary warrants. Precautionary acts also provide a fast and efficient method for the creditor to recover any debt due to him. In fact, precautionary acts, as their nomenclature suggests, consist of legal remedies, whereby a creditor can, without the necessity of any previous judgement, secure his rights before his debtor can cause him any prejudice. Chapter Five will continue to highlight the legal basis behind the issue of such precautionary acts, and it will also include the general provisions relative to these acts provided for in the Civil Code. This will also include the evaluation of the individual precautionary acts, together with the relevant case-law. This chapter will also highlight the changes brought about by Act XXN of 1995, focusing mainly on the warrant of impediment of departure, which can now be issued solely against a ship or a vessel. Before the enactment of Act XXN of 1995, this warrant could also have been issued against a physical debtor. The next chapter will identify other means of protection afforded to the creditor, and these will include ·two further actions, namely, the 'actio surrogatoria', and the 'actio pauliana'. Chapter Seven will finally concentrate on the protection of real rights and will examine in detail the various actions granted by the law to the creditor in order for him to protect these rights. Hence, this chapter will distinguish between actions granted in defense of possession, otherwise known as 'actiones possessoriae', and actions granted in defense of ownership, known as 'actiones petitoriae '. In conclusion, the various actions competent to the creditor will be highlighted, and the thesis shall contain a brief overview of what would have been discussed and examined in this study.