Issue link: https://maltatoday.uberflip.com/i/1380662
maltatoday | SUNDAY • 6 JUNE 2021 19 The new 2017 Article of the Civil Code dictates that if the Defendant claims that the ac- tion is time barred, that De- fendant has to take an oath that the claim is either not due or else it has been paid as far as he knows. This was held in a judgement delivered on 4 May 2021 Thomas Djafoni et -v- TRC Family Entertainment Limited by the Magistrates' Court presided by Magistrate Dr Nadine Lia. The plaintiff, former employ- ees of the defendant company, claimed for unpaid wages of €13,785.51. TRC pleaded that the action was time barred by Article 2147(c) of the Civil Code. The Court on 6 Novem- ber 2018 had upheld the plea, but the Court of Appeal over- ruled that decision on 25 Feb- ruary 2019. A new plea was registered where the defendant com- pany claimed that the action was time barred by Article 2148(d) of the Civil Code by 18 months. The Court analysed the evi- dence produced which were essentially affidavit present- ed by the Plaintiffs. They ex- plained that their employment was terminated in September 2014 and that they were not paid for that month. There is no contestation that the Plain- tiffs received a payment in September 2015. Article 2147 of the Civil Code reads: "2147. The following actions are barred by the lapse of one year: (c) actions of domestic serv- ants or other persons paid by the month, of artificers or day-labourers for the payment of their wages, salaries or the supplies due to them;" Article 2148 allows for an 18-month prescription period for "actions of persons for the payment of their salary;" Therefore, the distinction is between the two articles of law is based on whether the workers is paid on a daily basis or is paid monthly or annual- ly. In a previous judgement Josephine Vella et -v- Korpo- razzjoni Enemalta given by the Magistrates' Court in Gozo on 11 July 2008, held that Article 2147(c) is a translation from of Italian law. There is a dif- ference between the Maltese and English text. The Article seems not to apply to sala- ry paid on a monthly basis. The Court in that judgement questioned why it is the case and held that amendments are required. The law makes a distinction between salary and wages, although in com- mon parlance, they are terms interchanged. Wages is used for workers who are paid dai- ly. However, the Employment Relations Act does not make such a distinction. The Court held that salary is not paid every 4 weeks, but on an an- nual basis and makes no dif- ference on how the payment is affected if it is every month or another method. Since the pleas of prescrip- tion was raised by the Defend- ant company, it is the company that has to prove that the pre- scription exists. Furthermore, Article 2160(1) of the Civil Code requires that whoever raises the plea of prescription must take an oath that they are not debtors or else they do not remember whether the debt was paid. The company in this case did not take such an oath. This article was amended and introduced in 2017. The com- pany failed to prove the two pleas of jurisdiction and con- firm on oath the second plea filed in 2019 and therefore af- ter 2017. Furthermore, the plaintiffs claimed that the prescription period was interrupted when they were informed by the former employers that they were to be paid. Therefore, the prescription period was inter- rupted when payment on ac- count is affected or acknowl- edged. Plaintiffs received payment in September 2015 and one of the directors of the company confirmed that he is doing his utmost to settle the payment. In Carmelo Micallef -v- Brigdier John Belle Mc Ca- nee noe decided by the Court of Appeal on 30 may 1952, the court held that prescription may be interrupted direct- ly and express by means of a formal statement. It may be also direct and tacit by means of facts that show the willing- ness. Prescription can also be interrupted if it is indirect and presumed since the facts show that the debtor does not want to contest the claim. In this case the company ac- cepted that the claim existed by means of statements made to the plaintiff and the pay- ment on account. The Court turned down the pleas of prescription and or- dered that the case continue. LAW CLASSIFIEDS CLASSIFIEDS INFO @MEDIATODAY.COM.MT Once a plea of prescription is raised then an oath has to be taken HOLIDAY ACCOMMODATION MARSALFORN, Gozo - holiday apart- ments for short or long lets with mag- nificent sea-views. Call 21556021, 27556021, 79426883 PROPERTY TO LET XLENDI - catering premises in prime site to let. Can be used for other com- mercial purposes. Phone 79493021, 79426883, 77481592 or 77484029 PROPERTY FOR SALE QAWRA – Calling all developers this is an ideal development opportunity. 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