ACT No. XII of 2009 AN ACT to amend various laws relating to civil matters. (amendmentstoactxivof)

I assent.

G EORGE A BELA

(L.S.)

President

17th July, 2009

ACT No. XII of 2009

AN ACT to amend various laws relating to civil matters.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows

(1) The short title of this Act is the Various Laws (Civil

Matters) (Amendment) Act, 2009.

(2) The provisions of this Act shall come into force on such

date as the Minister responsible for justice may, by notice in the

Gazette, establish, and different dates may be so established for

different provisions and for different purposes of this Act.

PART I

This Part amends the Code of Organization and Civil

Procedure and it shall be read and construed as one with the Code of

Organization and Civil Procedure, hereinafter in this Part referred to

as "the Code".

In subarticle (1) of article 89 of the Code, for the words

"and experts in the Courts of Malta and Gozo" there shall be

substituted the words "and experts in the Courts of Malta and Gozo,

and public auctioneers".

In the English version of paragraph (a) of article 258 of the Amendment of

Code, for the words "in paragraph (a) of article 253" there shall be article

the Code.

substituted the words "in paragraphs (a), (c) and (d) of article 253".

Immediately after article 304 of the Code, there shall be Addition of new

article to the

added the following new article

Code.

" Procedure for

304A. The procedure for the sale of

the sale of

movable property shall follow the same

movable

procedure, mutatis mutandis, as that referred

property.

to in article 305.".

Subarticle (1) of article 306 of the Code shall be amended Amendment of

article 306 of

as follows

the Code.

(a)

in paragraph (d) thereof, for the words "shall be

accessible to the public.", there shall be substituted the words

"shall be accessible to the public; and"; and

(b) immediately after paragraph (d) thereof, there shall

be added the following new paragraph

"(e) appoint a public auctioneer who shall receive

a fee in terms of regulations made by the Minister under

this article.".

In article 307(2) of the Code, for the words "within five Amendment of

article 307 of

days" there shall be substituted the words "within twenty days".

the Code.

In subarticle (3) of article 314 of the Code, for the words Amendment of

"listed securities in a recognised exchange", there shall be substituted article

the Code.

the words "listed securities in regulated markets".

In the English version of subarticle (1) of article 333 of the Amendment of

Code, for the words "may, by an application, bid animo article

the Code.

compensandi.", there shall be substituted the words "may bid animo

compensandi.";

In article 345 of the Code, for the words "or by the official Amendment of

consignee", there shall be substituted the words "or by the consignee". article

the Code.

In article 378 of the Code, immediately after the words "in Amendment of

order to force him to lodge such property" there shall be added the article

the Code.

following new proviso

"Provided that where the garnishee is a Bank, that Bank

shall declare what fixed deposits or other bank books are in its

possession, the property of the debtor, without having to deposit

them; however the person responsible for the Bank’s

management shall always remain responsible in accordance

with the provisions of this article.".

In article 388C of the Code, for the words "in terms of

articles 868 and 870" there shall be substituted the words "in terms of

articles 858 and 860".

Article 527 of the Code shall be amended as follows

(a)

in subarticle (1) thereof, for the words "be published

in the Government Gazette, and that an intimation of such

interdiction or incapacitation be given, by means of a circular

letter, to all notaries in Malta.", there shall be substituted the

words "be published in the Government Gazette."; and

(b) in subarticle (2) thereof, the words "and the notary

shall affix his own signature to the circular which shall be kept

in the record of the proceedings relating to the interdiction or

incapacitation" shall be deleted.

An article 833A of the Code shall be amended as follows

(a)

for the words "referred to in article 830(1)(a), (b),

(c) and (e)" there shall be substituted the words "referred to in

article 830(1)(a), (b) and (d)"; and

(b) immediately after the words "according to which

date first occurs" there shall be added the following new

proviso

"Provided also that no sworn application or

application or petition, as the case may be, shall be required

in the case where the precautionary warrant is converted to

an executive warrant or it is removed by means of a counter-

warrant.".

In subarticle (7) of article 836 of the Code, for the words

"in which latter case it shall order that the precautionary act be

revoked" there shall be substituted the words "in which latter case it

shall give such orders as it may deem appropriate, including, if the

case so warrants, the giving of the security back to the debtor".

Article 838B of the Code shall be substituted by the

following new article

"838B. (1) Unless rescinded by the court or withdrawn by

the party suing out the warrant, all precautionary warrants shall

remain in force for a period of fifteen days after the cause

becomes res judicata.

(2) Notwithstanding the provisions of subarticle (1),

precautionary warrants issued under article 830(1) become

executive warrants after that the cause becomes res judicata or

when in accordance with article 166B such judicial letter

constitutes an executive title, so however that

(a) in the case of a warrant issued under article

830(1)(b), (c), (d) and (f), the creditor shall file a note

within fifteen days from the cause becoming res judicata

in the acts of the same warrant and demand an extension or

reduction of the effects of the warrant to an amount

equivalent to the legal costs, interest and the difference in

the principal amount due in terms of the judgement, and

such note is to be served upon the debtor and such persons

as may have any interest therein;

(b) in the case of a warrant issued under article

830(1)(a) and (e), the creditor shall file an application

under the provisions of article 388E within fifteen days

from the cause becoming res judicata.".

Article 859 of the Code shall be amended as follows

Amendment of

article 859 of

the Code.

(a)

in the marginal not thereof, for the figure "€11,600",

there shall be substituted the figure "€7,000"; and

(b) for the words "amounting to not less than eleven

thousand and six hundred euro", there shall be substituted the

words "amounting to not less than seven thousand euro".

In subarticle (3) of article 874 of the Code, for the words Amendment of

"be served by the Registrar within twenty-four hours on the Director article

the Code.

of the Public Registry" there shall be substituted the words "be served

by a notary public, appointed by the Court for the purpose, within

twenty-four hours on the Director of the Public Registry".

For subarticle (7) of article 877 of the Code, there shall be Amendment of

article 877 of

substituted the following new subarticles

the Code.

"(7) The warrant which has not ceased to be in force for

other reasons, shall remain in force for one year to be reckoned

from the day on which it was issued, unless within such time the

person suing out the warrant shall have, upon an application to

that effect, obtained an extension.

(8) Such extension may be granted more than once, but

it may not be granted for more than one year each time.

(9) The decree allowing the extension shall state the

date up to which the warrant shall remain in force.

(10) The decree allowing the extension shall be served on

the persons mentioned in subsection (2) and (3) above.

(11) None of such persons shall incur any liability if,

after the expiration of the said time, whether original or

extended, and before the decree of any such extension has been

served on him, he shall act as if the warrant had ceased to be in

force.

(12) The absence of a demand for an extension shall not

be a bar to the issue of a fresh warrant.".

PART II

This Part amends the Civil Code and it shall be read and

construed as one with the Civil Code, hereinafter in this Part referred

to as "the Code".

In subarticle (4) of article 1322 of the Code, for the words

"and any investment instrument" and "or investment instrument",

there shall be substituted the words "any instrument" and "or

instrument" respectively.

PART III

This Part amends Act XIV of 2006 and it shall be read and

construed as one with Act XIV of 2006, hereinafter in this Part

2006. referred to as "Act XIV of 2006".

In article 14 of Act XIV of 2006, for articles 282 to 293

(both inclusive) contained therein, there shall be substituted the

following new articles

''Warrant of

282. The warrant for the seizure of

seizure on

movable property shall, besides the particulars

movable

property.

stated in article 274, contain Court orders about

(a)

(i) the appointment of the

day, place and time for the judicial

sale by auction and the subsequent

seizure and removal thereupon of all

such articles from the place which

has been indicated by the creditor or

from the person of the debtor; or

(ii) the seizure from the

place indicated by the creditor,

including from the person of the

debtor, of any such article which the

debtor may possess or such article or

articles as may be mentioned in the

warrant; and also that after the

execution of the warrant, the court

executing officer shall be ordered to

fix, together with the advocate or the

legal procurator of the creditor, the

day when the judicial sale by auction

is to be held in consultation with the

executing

officer

responsible

therefor, and such executing officer

shall also fix with the creditor the

date, which shall at least be seven

days prior to the date of the judicial

sale by auction, when the removal of

the articles which the executing

creditor selects to have removed

shall take place;

(b) the execution of the warrant, if

so required, after legal hours or on a

Sunday or public holiday, and if after two

attempts to execute the warrant the court

executing officer fails to effect such

execution, he shall be authorised to force

open the place;

(c)

the transport of the property

seized and to be removed to the storage

places indicated by the consignee, and

about the transfer of their possession from

the debtor to the consignee;

(d) the

appointment

of

a

consignee and the taxing and receipt of

payment due to the consignee by the

creditor for such period during which the

articles seized and to be removed would

be under the care of the consignee, so

however that such payment may be

divided in proportion to the periods

established by the Registrar depending on

the nature of the articles seized and to be

removed. Such payment is made subject

to the right of regress against the debtor

when such right exists;

(e)

the appointment of experts to

make a valuation of the property seized, if

so required by law, either in special

circumstances which the court may deem

appropriate, or on the demand of any

interested party or of the debtor;

(f)

the appointment of an

auctioneer who shall receive a fee in terms

of the Auctioneers Act, if so required by

law;

(g) an order for the judicial sale

by auction of such articles as are seized

and to be removed on the appointed day in

terms of regulations to be made by the

Minister responsible for justice, without

further service of any notice to the debtor.

283.(1) (a)

The court executing officer

Description of

property

shall attach to the said warrant a detailed

seized.

description of the property seized.

(b) The creditor or the debtor or

any interested party may demand the court

executing officer to take any photograph

or filmshot of the detained articles either

by electronic or by any other means at the

expense of the party making the demand.

(2) If the court executing officer finds no

Contents of

certificate in

movable property, or finds only such property

case of

unsuccessful

as is not liable to seizure, he shall make a

execution.

certificate to that effect, stating therein the

nature of the movable property, if any, not liable

to seizure, and he shall attach such certificate to

the warrant.

284. (1) When a warrant of seizure is

Payment of

the amount

being executed, it is only the full amount

due.

claimed by the creditor that may be paid by the

debtor to the court executing officer.

(2) The court executing officer shall

describe in detail the property seized and -

(a)

where the property includes

any merchandise, he shall cause such

merchandise to be weighed, measured or

gauged, as the case may be;

(b) where money or securities for

money, jewellery, or articles of precious

metal are seized, he shall accurately state

the amount or nominal value or weight

thereof and he shall within the shortest

time possible take the same to the registry

and lodge them therein by means of a

schedule;

(c)

where papers are seized, he

shall seal them and deliver them to the

Registrar, and such seals may not be

removed except by the authority of the

court.

285. (1) Seizure may be effected on

Seizure of

other movable

any movable property including

property.

(a)

shares

in

commercial

partnerships;

(b) licences issued by any

competent authority as may be established

by regulations made by the Minister

responsible for justice;

(c)

insurance policies;

(d) credit securities and any

intellectual or industrial property right

Provided that on such property the

warrant shall have effect as from the date of the

service on such authority or such person who

would have issued such movable property. Any

transfer made or burthen incumbent on such

property after that date shall be ipso jure null as

from the date of the service of the certificate of

seizure to such person or authority issuing

same.

(2) Where

in

any

commercial

partnership its statute attributes any right of

preference with regard to the transfer of shares,

the shareholders shall be informed of the date

when such sale is due to take place and they

may exercise the said right during that sale.

(3) When the judicial sale by auction of

an insurance policy is due to take place, notice

shall be given to the insurance company of the

date of such sale.

Consignee.

286. (1) Such property as is removed

from the possession of the debtor, in terms of

article 282(1)(c) subject to the provisions of

article 293, shall be transferred forthwith to

be retained in the hands of the consignee in

the presence of the court executing officer,

and the consignee shall receive and hold such

property in a storage place authorised by the

Registrar until such time as that property is

sold or the consignee is ordered to do

otherwise.

(2) The consignee shall issue a receipt,

to be signed by him, for such property as would

have been seized and removed from the

possession of the debtor and which he would

have received

Provided that the consignee may,

with the written consent of the Registrar, retain

such property in any place other than the

official storage place in such circumstances

where, due to the nature or the size of the

articles seized, it would not be feasible to

dispose otherwise.

287. A consignee may not be appointed

Persons who

may not act as

under this Title when he is either

consignees.

(a)

the execution creditor;

(b) the husband or wife of the

debtor or of the creditor;

(c)

the father or mother of the

creditor, his daughter or son, or his brother

or sister, his uncle or aunt, his father-in-

law or mother-in-law or her husband or

his son-in-law or daughter-in-law;

(d) directly

or

indirectly

employed with the creditor;

(e)

the person who claims to be

the owner of the property seized.

Attendance of

288. At the time of execution of the

the consignee.

warrant of seizure under article 282, the

consignee shall attend together with the court

executing officer to execute the warrant. The

court executing officer may seize and remove

property without informing the creditor.

289. (1) The consignee shall be

Consignee to

preserve

responsible for the proper preservation of the

property

seized.

property entrusted to him and he shall not use,

nor shall he allow any person to use, such

property unless otherwise ordered by the court

Provided that the debtor may be

allowed to use or retain in possession such

articles of the property seized as the court may

authorise if the court considers that such articles

are normally required by an average household

for decent living to maintain the human dignity

of the debtor and his family.

(2) Where the property seized is of a

perishable nature, the Registrar shall, without

further authorisation, sell the goods seized and

with the profit made from that sale, he shall

proceed according to the provisions of article

284. The

290. The consignee is bound to exercise

consignee to

for the safe keeping of the property seized, such

act as a bonus

paterfamilias.

care as is exercised by a bonus paterfamilias; if

the consignee fails to present such property

when called upon to do so, the court shall order

him to appear before it to explain his failure to

do so; the consignee shall be responsible for

damages and interest and the court, after

examining the circumstances of the case, may

issue such orders as appear to be appropriate,

including the personal arrest of the consignee

for a period not exceeding three months, to

compel him to present such property. The

failure of the consignee to present such property

when ordered by the court shall of itself

constitute contempt of court in terms of the

applicable provisions under this Code.

Other

291. The creditors of any person, whose

creditors may

property has been seized, may not, for any

not oppose

execution.

cause whatsoever, make any opposition to the

execution of the warrant or to the sale of the

property

Provided that it shall be lawful for

such creditors to enforce their claim on the

proceeds of the sale of the property seized.

292. (1) If, when executing a warrant

No

identification

of seizure, the court executing officer finds that

is to be made

of property

another warrant has already taken place and that

already

the articles have not been removed, he shall

seized.

likewise execute the warrant again at the place

indicated to him by the creditor. Identification

of the property so seized shall no longer be

permitted. The court executing officer shall, at

the creditor’s expense, inform the creditors that

on their demand other warrants had been

executed by means of the first warrant.

(2) When a consignee has already been

The warrant

may be

appointed, and the articles have been removed,

executed on

new articles

no other warrant may be executed on such

other than

articles.

those already

seized.

Property not

293. (1) The

property

mentioned

subject to

hereunder is not subject to seizure

seizure.

(a)

such clothes for daily wear,

bedding and such utensils and furniture as

are considered reasonably necessary for

the decent living of the debtor and his

family;

(b) personal documents and books

relating to the profession of the debtor, of

his wife or of his children;

(c)

the registers and minute-books

of notaries public;

(d) tools

and

implements

necessary for the instruction in or the

exercise of any science or of any art of the

debtor, of his wife or of his children;

(e)

animals and tools required for

agriculture and any fruit either cut or not

yet separated from the ground;

(f)

aircraft,

exclusively

appropriated to a state service, including

the postal service, but excluding

commercial service;

(g) sea vessels wholly chartered

in the service of the Government of

Malta

(h) sacred vestments and vessels

which are used in a consecrated church, or

belonging to a priest, a religious order or

any member thereof;

(i)

any property of any member of

the Police Force or of the Armed Forces

of Malta being arms, ammunition,

equipment, instruments or clothing used

by him in the discharge of his duties

Provided that any such property as is

mentioned in paragraphs (a) to (g) may be

seized -

(i) if the execution is

demanded in respect of the price of

such property;

(ii) if the execution is

demanded in respect of rent or

ground-rent of the tenement in which

such property is kept;

(iii) if the executive title by

virtue of which the warrant has been

issued specifically condemns the

debtor to effect the return of such

property.

(2) The seizure may be effected of

unseparated movable property belonging to

both debtor and a third party, insofar as no sale

of such property may take place except after

their separation.''.

Passed by the House of Representatives at Sitting No. 140 of the

14th July, 2009.

L OUIS G ALEA

Speaker

P AULINE A BELA

Clerk to the House of Representatives