Summary

George Portelli et vs Ivan John Felice, Civil Court First Hall, 28.7.2004

Plaintiff instituted proceedings against defendant so that the court would order defendant
to pay a balance he owed on a van that he bought from Plaintiff.
Defendant argued that his consent when making the agreement was vitiated by the fact
that he was made to believe that the van could carry 9 passengers when in reality it could
only carry 7 according to the ADT permit it was issued with. He insisted that if he knew
that the van could only carry 7 passengers and not 9, he would not have bought the van
and this was therefore a determining factor.

The court made a number of references to the requirements for fraud to subsist. First of
all it stated that when a party alleges fraud it is up to that party in the contract to prove it.
It also stated that there needs to be 4 elements for a contract to be annulled on the basis of
fraud:

biex il-qerq jolqot il-kunsens tal-parti f’kuntratt u jhassar is-siwi tal-istess

kunsens, jehtieg li
(a) jithaddmu mezzi jew atti qarrieqa;
(b) li jkunu fihom infushom gravi
(c) b’mod li jkunu determinanti ghan-negozju li jkun sar bejn il-partijiet,
u
(d), fuq kollox, li tali mezzi jew atti jkunu twettqu mill-parti l-ohra10.

Biex il-qerq ikun gravi, irid ikun tali li persuna ta’ dehen ordinarju ma
jaghrafx li jkun gie mqarraq u jkun ghamil li jmur lil hinn minn ftahir
ezagerat dwar xi kwalita’ tal-oggett tan-negozju, u li kieku ma kienx
ghal dak il-qerq, kieku ma kienx jidhol fin-negozju in kwestjoni11. Fil-kaz
tal-qerq, ghall-kuntrarju ta’ dak li jigri fil-vjolenza (bhala kawza ta’
nullita’ tal-kunsens), is-sehem ta’ terza persuna ma jkunx bizzejjed biex
ixejjen is-siwi ta’ kuntratt fejn il-kunsens ta’ persuna jkun gie mehud
b’qerq.

The court also stated that the fraud must be grave:

“l-qerq ma jistax jigi allegat meta l-fatti setghu jigu stabiliti bla xkiel jew
diffikulta’ zejda mill-parti li tallega lqerq, ghaliex f’kaz bhal dan ix-xilja ta’
qerq ma tkunx ghajr skuza facli biex wiehed jahrab milli jwettaq ir-
rabtiet li jkun dahal ghalihom mal-persuna li allegatament uzat ilqerq”

The court ultimately interpreted defendant’s claim as one by which he

wanted to avoid his obligation to pay the remaining balance on the van.
The court was led to believe this also by the fact that:
 1) For the Van to be issued with a permit to carry 9 passengers all
the owner needed to do is to apply for such permit with the ADT
and to comply with the requirements of the ADT.
2) The log book of the van and the van itself showed that it could
carry 9 passengers. Therefore the only element missing was the
ADT permit, which was not the responsibility of plaintiff to apply
for.
3) The issue of how many passengers could be carried in the van
was never brought up at the stage of negotiations for the sale of
the van from plaintiff to defendant.
4) Felice (defendant) had already transferred the van to a 3rd party
even though he had no right to do so since he still owed a
balance on the van and was therefore not the rightful owner of the
van. The court therefore argued that if he felt that the agreement
he had with Portelli was invalid, how could he act as if he was the
owner of the van, by transferring it to another person?

Defendant did not manage to prove that the contract should be annulled
on the basis of fraud. The court ordered him to pay the balance due to
plaintiffs.