The institute of privileges in the Maltese legal context

Abstract

The principal objective of this thesis is the laying down of· a profound and comprehensive exposition of the law of privileges as found within the Maltese legal context. It critically explains the juridical functions of the institute, the essential characteristics of the kinds of privileges established by law, and each individual privileged claim falling thereunder, with due reference being made at the same time to the leading jurisprudence and the writings and opinions of the most authoritative commentators on the subject. In particular, the thesis includes an overview of the most important stages in the histo-juridical development of the institute, starting from the Roman Law concepts of 'privilegia exigendi' and 'hypotheca privilegiata' to the vital contribution put forward by the 1804 French Civil Code, the effects of which are still evident in the modern law of privileges. The thesis then proceeds to give a detailed explanation of the juridical definition (and its shortcomings), the characteristics, functions and effects, of the institute, and the issues regarding the concepts of 'lawful causes of preference ' and 'droit de suite ', the different kinds and categories of privileges (general and special), the real character of special privileges, together with a full delineation of each and every individual privileged claim recognized by the Civil Code. In the process, the thesis embodies a comparative study between the Maltese, French and Italian legal regime of privileges, which as opposed to the Maltese law of privileges, have devised, during the past decades, several adjustments and innovations to the institute to suit modem socio-economic exigencies. In this context, suggestions are made for the execution of certain necessary amendments to the relevant Maltese provisions of law governing the institute. Privileges under Maltese law emanate from two sources, the Civil Code and Special Acts of Law. For this purpose, this work does not limit itself to the concept of 'Civil Code' privileges but also elaborates upon the privileged claims enshrined in various acts oflaw ('special law' privileges). In view of the voluminous nature of the subject-matter of the thesis, certain highly technical issues, such as those relating to the ranking of privileged claims between themselves, and to the formal requirements of the registration of privileges have been omitted.