Issue link: https://maltatoday.uberflip.com/i/863487
46 maltatoday, SUNDAY, 20 AUGUST 2017 Opinion T he Magistrates Court upheld a plea of prescription because the buyer of a car found out the defect well before the action was instituted. This was a judgement delivered by Magistrate Dr Consuelo Scerri Herrera on 5 July, 2017 in Carmelo Cassar -v- Mario Zammit in his name and on behalf of Mario Auto Dealer. Carmelo Cassar filed a claim against Mario Zammit for the sum of €8,600 which represented works carried out on a Mercedes he had bought from Zammit in October 2015. Mario Zammit filed a statement of defence, where he claimed that the action was instituted erroneously since he had no judicial relationship with Cassar, since Mario Auto Dealer Limited had contracted the sale and not himself personally. He also claimed, amongst others, that the action was time barred under Article 1431 of the Civil Code Zammit had testified that he trades under Mario Auto Dealer Limited and that he had sold the vehicle in question after Cassar had made some enquiries. Shortly after he purchased the car. He had then rang him up complaining that he saw smoke issuing from under the bonnet and Zammit instructed Cassar to take it to a particular mechanic. It seems that all it was was that a hose pipe was damaged and Zammit offered to pay €200 from a larger bill. Zammit insisted that he did not mean he would finance every complaint Cassar may have. Zammit presented evidence that deposits made were being done in the account of Mario Auto Dealer Limited and not his own. Carmelo Cassar also testified that he purchased the Mercedes for €11,000 and the car was producing smoke only 10 days later. He further explained that after he took it to the mechanic Zammit had sent him to, the mechanic told him that he had to change the engine and charged him €8,000. Magistrate Scerri Herrera first dealt with the first plea with regard to whether the defendant had any judicial relationship with the plaintiff. The Court quoted from a previous judgement Frankie Refalo et -v- Jason Azzopardi et decided by the Court of Appeal on 5 October, 2001, which held that for the court to decide whether the two parties of a case have any judicial relationship, the Court must see whether the defendant was prima facie involved in the negotiations with the plaintiff. If this connection is established, this could establish responsibility. Notwithstanding this the defendant may have other pleas which decide the court to declare that he is not responsible for the plaintiff 's claim. In another judgement Camel Brand Co Limited -v- Michael Debono noe et decided by the Court of Appeal of 7 October, 2005, the Court pointed out that people do make contracts with others, however, if they represent an entity, it must be specified. This must be proved by the person representing others. In this particular case the documentary evidence shows that Mario Zammit contracted the sale of the vehicle on a personal basis. However, Zammit had paid the €200 from the company's account. As a result this first plea was being turned down. The second plea dealt with whether the action was time barred under Article 1431 of the Civil Code, which reads: "1431. (1) The actio redhibitoria and the actio aestimatoria shall, in regard to immovables, be barred by the lapse of one year as from the day of the contract, and, in regard to movables, by the lapse of six months as from the day of the delivery of the thing sold." Article 1425 further reads: "The seller is not answerable for any apparent defects which the buyer might have discovered for himself." Article 1427 gives the purchaser a choice between two actions, that of action redhibitoria or action aestimatoria. Article 1431 states: "1431. (1) The actio redhibitoria and the actio aestimatoria shall, in regard to immovables, be barred by the lapse of one year as from the day of the contract, and, in regard to movables, by the lapse of six months as from the day of the delivery of the thing sold. (2) Where, however, it was not possible for the buyer to discover the latent defect of the thing, the said periods of limitation shall run only from the day on which it was possible for him to discover such defect." The Court quoted from a Court of Appeal judgment of 1 June, 2007, Mallia -v- Abela et, which stated that an action aestimatoria is when the object purchased has a latent defect and asks for a reduction in the price, but keeps the object. From the evidence gathered, the sale took place on 14 October, 2015 and the damage took place prior to 17 November, 2015, which the payment of €200 to the mechanic was made on that day. This action was filed on 12 December 2016, a year after the damage was established. However, before opening the case the car suffered a second breakdown, where it was decided that the engine had to be changed at the cost of €8,600. The court pointed out that this second incident was not explained and the evidence does not pinpoint any particular damage found in the car. Since a car is a moveable, then the action should have been instituted within six months. The Court held that there is a legal discussion on whether the six months period is a prescriptive period or if it is a period when the action is being renounced. In the 1970s the prevalent position was that it was a prescriptive period, however, Magistrate Scerri Herrera took a different view and leaned toward that six months is a renunciation of legal action. This is backed up by Mr Justice T Gouder in a judgment Emmanuel Camilleri -v- Anthony Calascione delivered on 29 October 1954. In this case, the Court considered that the six months period commenced when the plaintiff was aware of the defect and not on the date of the sale. This took place when the plaintiff took the car to the mechanic and received compensation of €200. In fact, it was from here that the plaintiff had decided that he had to change the engine. However, he filed the case a year after. The Court then moved to uphold both pleas of the defendant. Dr Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates A planning permission was issued for the demolition of existing rooms and the construction of a new residence with a basement garage and pool. The site is located in Triq it- Tabib Zammit, Balzan, bordering the Urban Conservation Area boundary. In support of its decision, the Authority maintained that the proposed designs were compatible with the applicable planning policies. Following the Authority's decision, a neighbouring objector filed an appeal with the Environment and Planning Review Tribunal, insisting that the permit went against planning policy. In its appeal submissions, the third party objector made a number of assertions: • The Planning Commission was misled by the case officer; • The site in question is located within the Urban Conservation Area (UCA) of Balzan. The Planning Commission was given the impression that the applicant's premises were located on the edge of the UCA when in actual fact, the site forms part of the historic village core; • The approval of this application would effectively shift the UCA boundary, resulting in the 'shrinkage' of the village core; • The garden in question is 'one of a series of neighbouring gardens which are all bounded by old rubble walls and it is this very characteristic that makes them unique and worthy of preservation'; • Applicant's property was conveniently 'divided up into plots as if it was some housing scheme' in breach of good urban design; Concluding, the objector reiterated that the applicant's proposal ran counter to established conservation policies and requested the Tribunal to revoke the permit so that the 'intact L-shaped farmhouse and the large garden' would be preserved. In reply, the case officer representing the Planning Authority noted that according to the relative Local Plan (specifically, Map BZM 1), the applicant's site was designated as 'a residential area adjoining green open enclaves'. The case officer went on to observe that the present building consists of 'old rooms built in unrendered bricks and roofed over in concrete'. For this reason, the proposal was tantamount to an 'aesthetic improvement' in line with Urban Objective 3 of the SPED, which 'encourages the upgrading of derelict sites through high quality developments'. As to the existing old rubble wall, the case officer noted that this was 'incorporated in the new designs'. In its assessment, the Tribunal observed that the 'garden' under review fell outside the Open Enclave boundaries. After having conducted a site inspection, the Tribunal moreover confirmed that the site was surrounded by recent constructed development. Against this background, the Tribunal felt that the Authority was justified to issue the permit and went on to reject the third party appeal. Dr Musumeci is an advocate and an architect with an interest in development planning law Robert Musumeci Urban Objective 3 of the SPED 'encourages the upgrading of derelict sites through high quality developments' Malcolm Mifsud When buyer discovers defect, he must take legal action within six months New construction would lead to visual improvement