Proof of obligations : nullity in the absence of formalities thereof

Abstract

This dissertation aims at analysing the instances where a document is null in the absence of formalities required for the proof of obligations. This will highlight the importance of the formal requirements of contracts which ultimately demonstrates certainty between the contracting parties. This is in fact the essence of proof of obligations; the element of certainty. There are a multitude of provisions throughout Maltese law which explicitly demand that certain transactions and agreements must be expressed through a public deed, a private writing or a simple writing, which provisions shall be gathered together for ease of comprehension. Despite this, since a simple writing does not require any formalities, except that it be in the written form, which will be discussed within Chapter 2 dedicated to private writings, it does not fall within the scope of this term paper and will thus not be analysed. However, the difference between a private writing and a simple writing will be briefly discussed. Failure to draw up a public deed or private writing when this is expressly required by law causes the nullity of that contract. However, a contract will also be null is it lacks a requisite formality. Therefore, an analysis of the formalities required in a public deed and in a private writing respectively shall be made to determine where the law considers that their absence nullifies the agreement. This dissertation also presents an examination of whether a public deed or a private writing can be done through electronic means, since in today’s world, technological advances are making this more possible.