The rationale for excluding moral damages from the Maltese civil code : a historical and legal investigation

Abstract

"Why are moral damages excluded from the Maltese Civil Code?" This intriguing question lies at the core of the thesis and the historical and legal investigation tackled therein endeavours to answer it. Following a theoretical discussion relating to the justification for awarding moral damages in the introduction, the thesis starts out by asking: "Why were moral damages excluded originally?" To answer this question, the position prior to the enactment of the Maltese Civil Code is examined first (focusing on Roman law and the concept of 'iniuria'). The main sources referred to in the Nineteenth Century are subsequently analysed. French law and Austrian law are crucial here and are therefore analysed and contrasted with the peculiarities of Maltese law which are examined in light of the legislator's own rationale. The following chapters proceed to examine several legislative and judicial milestones in the Twentieth Century. Early cases that were debating whether moral damages were compatible with the Civil Code provisions regulating 'responsibility' in Tort are highlighted first. The importance of these cases lies in the fact that the problematic relationship between the provisions which deal with 'responsibility' in Tort and those which deal with 'damages', has always been apparent in our legal system and reexamining such cases from a new perspective may throw fresh light on the current position today. The legislative proposals outlined in the Conclusion in fact, seek to address this very issue. The 1938 amendments are subsequently analysed with a focus on 'damages when death ensues' followed by subsequent judicial interpretations. This is also done vis-a-vis the 1962 amendments and important subsequent case law. Changes in the early Twenty-First Century are examined next. Legislation that introduces moral damages explicitly into Maltese law is illustrated, followed by an extremely detailed critical analysis of what was said in Parliament relating to moral damages expressly and the current rationale for not expanding the concept further despite consensus that it should! Some very recent, novel cases are also highlighted. The final part of the investigation importantly explores other areas of law where moral damages are included but from a completely new point of view. The rationale for including moral damages in the Promises of Marriage law, in Press law and more recently, in certain constitutional cases, Consumer law and Intellectual Property law, is thoroughly examined. This is done by analysing several sources like parliamentary debates and case law which should help us understand why moral damages were included in these particular fields of law but excluded from the Maltese Civil Code.