The institute of antichresis in Maltese law

Abstract

The regulation of the institute of antichresis under Maltese law is not as simple and straightforward as one would desire it to be. A proper appreciation and regulation of this institute would have to depart from the objective which this institute is intended to achieve. Unfortunately the developments, both legislative as well as jurisprudential, seem to have lost sight of the real objective of this institute and have been aimed more at solving particular disputes rather than evolving this institute in accordance with other legislations. The developments which this institute underwent during the 1900' s had the undesired effect, in that its essential characteristics were lost. These factors overshadowed the advantageous elements of the institute, and over the years, practically led to its decline and disuse. The aim of this thesis is to explain the basic characteristics of the institute, to relate on the modifications that were made to it over the years, and to suggest possible amendments to the institute that might lead to its revival. This exercise is not intended for merely academic purposes. Rather, it is based on the understanding that with these modifications, it can serve an important role. Chapter I examines the origin of the institute of antichresis and of its introduction into several legislations. It also provides the historical outline of its incorporation within Maltese law. In Chapter 2, the basic notions and modalities of antichresis are defined. This chapter studies further the scope particular to this institute. Chapter 3 provides a detailed exposition of the regulation of antichresis under the Civil Code of Malta, and of the interpretation of the relative provisions by the courts. It tackles the constitution of the contract of antichresis, the nature of the rights and obligations arising therefrom in favour of the contracting parties. The modes of termination of antichresis and other particular aspects of antichresis are explained. A comparison between antichresis and other agreements is made in the final part of this chapter. Chapter 4 is the focal chapter of this thesis, since it analyses the amendments made to the institute in 198 l, and examines the legitimacy, particularly the constitutionality, of the same. In Chapter 5, is a comparative study of antichresis under Maltese law vis-a-vis various other legislations. Finally, Chapter 6 recommends a number of amendments which could enhance, or rather provide, the scope to this institute.