Issue link: https://maltatoday.uberflip.com/i/1539881
8 maltatoday | SUNDAY • 28 SEPTEMBER 2025 OPINION & LAW A contract between parties is valid at law, if the fact mentioned in it may be verified by the parties. This was held in a judgment delivered on 23 Septem- ber 2025 by the First Hall of the Civil Courts presided by Judge Audrey Dem- icoli. The case was Allison Management Limited vs Nrgy Concepts Limited. The plaintiff company explained that both parties had entered into an agree- ment, where the defendant company sold its business. The company had as its brand Oktoberfest Malta, which was registered. However, the certificate of the trademark was not attached to the agreement. The certificate of registra- tion, passed on in April 2023, showed that the defendant company did not own the trademark of Oktoberfest Mal- ta but all it had was an application for registration. The agreement referred to the certificate of registration and with- out this the plaintiff company was not interested in purchasing the business. Subsequently, the plaintiff company accused the defendant company of be- ing in bad faith since it exaggerated its claims to ownership of the trademark. The plaintiff company asked the court to declare that its consent was vitiat- ed because of an error and that it was affected by fraud. It asked that the agreement be rescinded and be refund- ed €2,360 which was the price for the trademark. The defendant claimed that the plain- tiff confused the terms trademark and brand. Oktoberfest Malta is a brand, which brand was registered as a trade- mark. A certificate was issued. Nowhere did it say that it has the exclusive use of the words Oktoberfest and Malta. The court analysed the facts in terms of the Trademarks Act. In 2001, ITS Limited had applied to register the word Oktoberfest as a trademark, how- ever, this was rejected. The defendant company tried again in 2021, but added 'Malta' to it. This application was with- drawn. The application was filed again with a different design. The trademark was registered in 2022, however the Department of Commerce held that the company did not have exclusive use of the words Oktoberfest and Malta. The court held that in Germany there were various attempts to register Oktober- fest since 2016. However, nobody has the exclusive right to use that word. With this in mind, the court analysed whether the agreement was null and void. From the agreement the court could not find any condition that the defendant was transferring the exclu- sive use of the trademark Oktoberfest. Article 976(1) of the Civil Code reads: "(1) An error of fact shall not void the contract unless it affects the substance itself of the thing which is the sub- ject-matter of the agreement." The court also quoted from Carme- lo sive Charles Foca vs Franco Borg et decided on 5 May 2021. Here the court held that for the error to affect the sub- stance, that error must be determining, subjective and unilateral. Also, fraud cannot be claimed if the facts did not cause any issues. A defect of consent is not excusable if it is a result of negli- gence. It is excusable when it is easily verifiable. The court in this case held that the registration of the word Oktoberfest could have been easily verified at the European Union Intellectual Proper- ty Office and/or the Malta Trademark Register. Indeed, the plaintiff had downloaded the certificate when it filed this case. As to the claim that the agreement was null and void due to fraud, the court explained that the term 'grave' meant to be when an ordinary person does not notice the fraud. In this case, the plaintiff could have easily verified whether the trademark was registered or not. The court rejected the plaintiff com- pany's claims and upheld the defend- ant's statement of defence. An error in a contract should be such it cannot be verified MALCOLM MIFSUD Mifsud & Mifsud Advocates Joseph Muscat: History will certainly not forget Arnold Cassola Chairperson Momentum LABOUR Party International Secretary John Grech, in a opin- ion piece last August, waxed lyrical about Joseph Muscat's achievements. His article forms part of the concerted efforts by Joseph Muscat afficionados to whitewash the perception of their invictus hero. Grech concluded his article by stating: "History doesn't remem- ber slogans. It remembers re- sults." And indeed, history does not forget. That is why no matter the number of whitewashing ar- ticles, posts and manoeuvres by the Muscat acolytes are uploaded, they will not be able to wash away the very serious situation Joseph Muscat got himself into. Indeed, history remembers results and does not forget. Let me just refresh the memo- ries of Muscat's disciples on some of the events which, in any dem- ocratic country, would spell the end of a politician's career and trigger off a speedy summons in front of the country's law courts. Before Muscat got to know that Yorgen Fenech was suspected of being the mastermind of Daphne Caruana Galizia's assassination: • In 2014, Joseph Muscat and Edward Zammit Lewis holidayed at the Evian Les Bains Hilton in France owned by Yorgen Fenech. Muscat's failure to answer the question whether he stayed for free at the hotel answers it all. Prime ministers of democratic countries are not supposed to accept such gifts from business people they are supposed to be regulating. • In December 2014, Joseph Muscat accepted an expen- sive Bulgari watch from Yorgen Fenech. The watch was worth €20,000. Accepting gifts from people who may have an inter- est in your decision making goes against the ministerial code of ethics. In democratic countries, prime ministers would be imme- diately kicked out for such behav- iour. • In 2015, Muscat travelled to- gether with Yorgen Fenech to the Pilatus boss wedding in Firenze, both staying at the Roccoforte Hotel. • On 6 December 2017, Mus- cat opened a private WhatsApp group between himself, Yorgen Fenech, and Keith Schembri. This was one day after the arrest and arraignment of three hitmen in Caruana Galizia's assassination. After Joseph Muscat got to know that Yorgen Fenech was suspected of being the master- mind in Caruana Galizia's mur- der, around August 2018: • In January 2019, Muscat invit- ed to his birthday party the sus- pected assassination mastermind and continued to socialise and party with him. • In February 2019, Muscat accepted as a gift from Fenech, three Petrus wine bottles worth at least €5,000. • Muscat's bodyguard, Kenneth Camilleri, revealed that when in 2019 he informed Muscat that Keith Schembri had sent him to calm down the killers, Muscat an- swered 'aħjar ma nkun naf b'xejn' ('it's better of I know nothing'). • The cherry on the cake to all the above came in December 2020 when Keith Schembri swore under oath that he "never did an- ything behind Joseph Muscat's back". Similarly, Konrad Mizzi swore: "I always got the go ahead from the prime minister; I con- sulted with him and information was given to Cabinet. For every major decision, the prime minis- ter was informed and he gave the go ahead. I sought his direction." The acolytes of the delinquent Joseph Muscat can continue with their whitewashing exercise but it is all useless because as the PL in- ternational secretary rightly stat- ed: "History remembers results... and history never forgets." Former Prime Minister Joseph Muscat