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maltatoday | SUNDAY • 9 JANUARY 2022 15 LAW CLASSIFIEDS HOLIDAY ACCOMMODATION MARSALFORN, Gozo - holiday apartments for short or long lets with magnificent sea-views. Call 21556021, 27556021, 79426883 PROPERTY TO LET XLENDI - catering premises in prime site to let. Can be used for other commercial purposes. Phone 79493021, 79426883, 77481592 or 77484029 PROPERTY FOR SALE SAN GWANN - Close to all amen- ities and located in the commercial district is this 3 storey OFFICE BUILDING. Presently arranged in open plan layout on each floor, complimenting this there are a number meeting rooms. Each floor has a balcony and toilet facilities, with the 3rd floor having a front terrace overlooking the main street and the back balcony with coun- try views. Although the property is currently being used as offices, there is the possibility of convert- ing to two apartments and a pent- house with terrace. The property is being offered freehold. Asking price: €760,000. Call on:79899838. SAN GWANN- Open plan 190sqm, ready to move into designer fin- ished second floor apartment in a central quiet street forming part of a block of 5 apartments. Two double A/C bedrooms and 1 single A/C bedroom, two bathrooms, lift, double glazing doors and windows. Direct from owner €350k inquire on 79402244. TAR XIEN - Larger than usu- al first floor duplex maisonette. Three bedrooms; double glazed windows; inverter air condition- ers including solar water heater. Being sold furnished. Own air- space with possibility of further development. Contact owner on 99912005/99450639. SERVICES NEWSPAPER adverts - Book & pay on-line on www.perfecta.com.mt - no extra charges. Call on 21322452 SITUATIONS VACANT SIGNAL 8 - Signal 8 Security Malta Ltd. requires filling posi- tions as Customer Care Clerks, Security Guards, security for plac- es of entertainment and cleaners. Applicants should be customer care orientated, smart and flexible for shift work. Email your CV to hr@signal8securitymalta.com.mt WANTED COLLECTIBLE items such panini albums and loose stickers, old postcards and posted envelopes, medals, militaria, coins and paper money, books, toys, stamps, badg- es, paintings, gold & silver items etc. Call on 21310238, 99246632. A verbal agreement following a public deed is not novation if the terms and conditions were merely modfied. This was held by Judge Miriam Hayman in John Whibley -v- Gabriella Vel- la and Jason Pace decided on 15 December 2021. The plaintiff brought the law- suit in the Court for it to order the defendants pay €16,942.81 representing a balance due on a loan given in May 2010 and to enforce a public deed the Par- ties signed and agreed to in No- vember 2009. The defendants filed a state- ment of defence stating that the transaction was illicit, because the Plaintiff could not have giv- en a loan as he is not licenced by the Central Bank to give loans. Furthermore, they argued that the plaintiff did not call upon them to pay in terms of Article 256(2) of the Civil Code and that the action was timed barred by 5 years. They also held that the plaintiff accepted payments which were not in line with the public deed. The First Hall of the Civil Courts dealt with the prelim- inary pleas. The first was that the transaction was illicit since the Plaintiff was not licenced in terms of Article 5 of the Bank- ing Act which reads: "No business of banking shall be transacted in or from Malta except by a company which is in possession of a licence granted under this Act by the compe- tent authority." The Court held that the trans- action was a commercial trans- action with interest in terms of the Late Payment EU Directive 2000/35. The public deed was signed before a notary and all the legal formalities were ob- served. The business of bank- ing is when lending of money is done regularly and in a habitu- al manner. The Court pointed out that this does not seem to be the case in the transaction carried out by both parties. The Court quoted from Paul Gauci et -v- Dominic Farrugia et de- cided on 30 March 2012, where the Financial Institutions Act was made reference to and the Court then held that lending activities which require a li- cence should be normal line of business of the party lending the money. This does not mean that a loan is null and void if it is a normal commercial trans- action. The Court declared that this plea was being rejected. As to whether the defendants should have been called upon prior to commencing the court action, Article 256(2) of the Civil Code stipulates: "The enforcement of any oth- er executive title may only take place after the lapse of at least two days from the service of an intimation for payment made by means of a judicial act." The Court mentions that the sworn application mentions that the judicial letter was sent, but it criticised the plaintiff for not presenting a copy. From the online court system this was found and was filed in court and served on the Defendants in April 2018. Irrespective of this the law does not sanction if the judicial letter was not present- ed. The Court quoted from a previous judgement Annemarie Zammit -v- Donald Zammit decided on 15 July 2002, which had an analogous situation, and found that the defendants did not suffer any prejudice. This plea was also rejected. As to whether the action was time barred in terms of Article 2156(f) of the Civil Code, which states: "2156. The following actions are barred by the lapse of five years: (.......) (f) actions for the payment of any other debt arising from commercial transactions or other causes, unless such debt is, under this or any other law, barred by the lapse of a shorter period or unless it results from a public deed;" The Court quoted from De Tigne Limited -v- Rada 99 Lim- ited decided on 5 October 2015, wherein the Court held that the last payment would have interrupted prescription and therefore the five (5) years start from the last payment effected. The last payment made in this particular case took place a year before Whilbley filed his action. Therefore, the Court held that the action was not time barred. As to the merits of the case, the Court held that the plaintiff testified that they entered into an agreement on 9 November 2009, where the amounts of repayments was established. Interest was charged if these dates were not respected. The defendants explained to the court that they had agreed ver- bally they would pay €500 per month. Payments were made and accepted. Gabriella Vella held that the amount borrowed was lower and therefore hinting that there was an element of usury. This was not corroborated by Jason Pace. The defendants also hint that there was novation of the original agreement. Nova- tion is the modification of the object of the agreement, which gives rise to a new obligation. Article 1181(1) of the Civil Code reads: "Novation shall not take place if the former obligation is not extinguished, although it is modified." According to Francis Paris et -v- Maltacom plc decided on 7 July 2008, held that novation takes place when the debtor enters into a new debt which would be replacing the old debt. Article 1181 of the Civil Code stipulates: "(1) Novation shall not take place if the former obligation is not extinguished, although it is modified." Therefore, novation is a mode how to extinguish an obligation, by creating a new obligation. There cannot be two obliga- tions existing at the same time and neither is there, novation if the obligation is merely modi- fied. In this case there is no no- vation. He agreement signed on 9 November 2009 established the amount due and the repay- ments. Novation only takes place when obligation is extinguished to make room for a new obligation LAW REPORT MALCOLM MIFSUD Mifsud & Mifsud Advocates CLASSIFIEDS INFO @MEDIATODAY.COM.MT