The element of unjust act in Maltese tort law : a critical inquiry

Abstract

The aim of this thesis is to deepen the understanding of the concept of an unjust act, which has traditionally been considered as one of the four essential elements required in order to establish responsibility in tort. The thesis will however show that the concept of an unjust act has not been fully explored in Malta, neither in doctrine nor by case-decisions, and as such its use has been restricted and inconsistent in practice. The thesis will attempt to fill this lacuna by analysing in depth the Civil Code provisions regarding tort as well as the relevant case decisions. It will challenge the traditional interpretation of these provisions as giving rise to a unitary concept of tort based on the general principle of fault. It will be argued that this interpretation does not precisely correspond either to the true reasoning behind many of our judgements or the wording of our provisions which envisage more than one head of liability in tort. This analysis will also lead to a better understanding of the role of the unjust act and the concept of abuse of right in Maltese law. Whereas the notion of an "unjust act" has been considered to be one of general application, in fact the provisions of the Maltese Civil Code seem to indicate that it may not be required in certain cases. By contrast the concept of abuse of right will be shown to have a wider application then is suggested by our case decisions. Finally, I will also explain how the re-thinking of the concept of an unjust act in Italy and Germany, which has led to the creation of new forms of compensable damages in these countries, may be used by the Maltese courts in order to expand the scope of Maltese tort law.