The Mélange of Innovation and Tradition in Maltese Law: The Essence of the Maltese Mix?

B Andò

doi:10.4314/pelj.v15i3.4

Abstract

Aim of this paper is to provide valuable insights into the Maltese legal system with a special focus on private law. The assumption is that this legal system is the byproduct of the "mixing" of innovation and tradition, resulting from the interaction of English law and continental law. A major role in the development of the system is played by courts. Some examples (moral damages and pre-contractual liability) are considered which highlight the importance of the function displayed by Maltese judges.KEYWORDS: Tradition; English law; continental law; hybridity; mixed legal systems; Maltese courts; moral damages; pre-contractual liability; lacunae

Highlights

The issue of hybridity is pivotal in contemporary academic discussions about the future of European law.[1]
Maltese legal tradition would be a source of law resting on an "impure version" of Roman law, the one which was the backbone of ius commune.[5]
If Roman law may be seen as the fabric of Maltese law, the only law that may be considered authentically Maltese was enacted during the period in which the Knights of the

Summary

OF THE MALTESE MIX?

THE MÉLANGE OF INNOVATION AND TRADITION IN MALTESE LAW: THE ESSENCE OF THE MALTESE MIX?. Micallef-Grimaud argues that the "pigeon-hole approach" typical of the English legal tradition has affected the Maltese system of civil liability since the beginning of British Rule He invokes as evidence of his thesis Dingli's notes and the Promises of Marriage Law Act (1834). After having considered an example of judicial equity consisting in a rule created by judges to correct unfair results flowing from the literal interpretation of a written law provision, an example of equity as a normative gap filling activity will be considered, that of pre-contractual liability whose admissibility is still highly controversial.[39] It is interesting, to see how Maltese judges cope with the issue of awarding damages incurred during the negotiations stage. Ganado have to be considered as the most influential exponents of this group

Conclusion