Issue link: https://maltatoday.uberflip.com/i/1389773
maltatoday | SUNDAY • 4 JULY 2021 19 WHEN one alleged that a con- tract was obtained by fraud, then that party must prove that the fraud is of a serious nature, which is detrimental to the conclusion of the contract. This was held in Emanuela sive Nathalie Vella -v- Carmelo sive Karl Catania on 30 June 2021 by Madame Justice Anna Felice presiding the First Hall of the Civil Court. The Plaintiff filed a sworn application, wherein she ex- plained that her father had nominated her as an heir in a will he drew up in May 2015. In this will left all the immoveable to his grandson, Karl Catania. In March 2015, her father had signed a deed of donation where he passed on his residence to his grandson, the Defendant. The Plaintiff argued that this donation does not makes sense in the light of the will which he drew up after the donation. In addition, the deed of donation was only registered after the defendant received a judicial letter. The Plaintiff asked the Court to declare that the deed of donation is null and void since the deceased's consent was vitiated due to fraud. Catania filed a statement of defence and held that the de- ceased did give his consent for the donation. From the evidence produced, the Plaintiff is one of 5 children and the Defendant is a grand- son. The deed of donation was carried out in March 2015. His estate is regulated by a will date in May 2015. Article 1212 of the Civil Code reads: "1212. Any agreement which is defective by reason of the absence of any of the condi- tions essential to the validity of contracts, or which is expressly declared by law to be null, shall be subject." Article 981 of the Civil Code states that the fraud in a con- tract must be such that the oth- er party would not have entered into the contract if it were not for the fraud. A fraud cannot be presumed but must be proved. The Court then referred to George Portelli et -v- Ivan John Felice decided on 28 July 2004, which listed the elements of fraud in con- tracts. The first element is that the consent will not be valid if there would be fraudulent acts, and the second that these must be serious and the third is that these acts must be done by one party on the other. For the fraudulent acts to be serious a person of ordinary in- telligence would not be aware that he or she would be subject to a fraudulent act. Since fraud has to be proved, then the party alleging this must prove that it took place. In another judgement Antho- ny Piscopo -v- Charles Filletti decided on 16 June 2003 by the First Hall of the Civil Courts, Fraud takes place when the vic- tim is not given a chance to re- sist and removes any idea that resistance is required. In this particular case the Plaintiff failed to convince the Court that her father's consent was vitiated. S he rested her evidence on that fact that in the May 2015 will, her father left the contents of the house to the Defendant. The Court pointed out that it is clear that after the Plaintiff's father donated his residence to his grandson, he wanted to leave the contents of the house to his grandson. This shows that he knew very well what he was doing. This was backed by witnesses who vouched that the deceased father intended to transfer the property to the defendant and had spoken about this to them. The Plaintiff held that the deed of donation was only registered after she filed a judicial letter. It is clear from the evidence pro- duced that the Defendant was unaware of this and the notary who testified in fact explained that it was his mistake. The Plaintiff complained that her father had donated everything to the Defendant leaving practically nothing for her. Article 620 states: "620.(1) It shall not be lawful for the tes- tator to encumber the reserved portion with any burden or condition. (2) The reserved portion is calculated on the whole estate, after deducting the debts due by the estate, and the funeral expenses. (3) There shall be included in the es- tate all the property disposed of by the testator under a gra- tuitous title, even in contem- plation of marriage, in favour of any person whom soever, with the exception of such expens- es as may have been incurred for the education of any of the children or other descendants. (4) The person to whom the reserved portion is due shall impute to it all such things as he may have received from the testator and as are subject to collation under any of the pro- visions of articles 913 to 938. (5) The person claiming the reserved portion shall take into account his share any property bequeathed to him by will and cannot renounce any testamen- tary disposition in his favour and claim the reserved portion, except when such testamentary disposition is made in usufruct or consists in the right of use or habitation, or consists of a life annuity or an annuity for a lim- ited time." The Plaintiff failed to show the Court the extent of her fa- ther's estate and therefore, the Court could not calculate what her share should be. The Court then moved to dis- miss the case and upheld the pleas. LAW CLASSIFIEDS CLASSIFIEDS INFO @MEDIATODAY.COM.MT Contracts obtained by fraud must be of a serious nature 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. 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