Court rejects claim that violence led to donation contract

This was stated in a judgement delivered on 11 July, 2014 in the names Maria Dolores sive Dolores Saliba -v- John Saliba.

In her application, Dolores Saliba held that in 2008, her son John and his wife visited her frequently to convince her that they would take care of her once she did not have a good relationship with her other children. They asked in return that she would donate her property to them.

The mother feared that if she did not do what they wanted she would be left alone. John Saliba fixed an appointment with the Notary and on 28 February, 2008, the mother signed the contract of donation according to his wishes. In fact she donated portions of a number of properties in Xewkija and Ghajnsielem.

Dolores Saliba is claiming that her consent was taken by violence and, therefore, asked the court to annul the donation contract.

John Saliba denied the claim. 

Magistrate Josette Demicoli in her judgement held that it is the plaintiff who has to prove that there was violence on 28 February, 2008.

The court quoted from a number of previous judgements on the issue of violence. In Emanuel Santillo et -v- Albert Abela, it was said that the moral violence must be the determining factor for the person to sign and it must be also serious and unjust.

The threats must be actual and serious in order to remove the bargaining power of the person signing the contract. In fact Article 978 of the Civil Code states: “(1) Consent shall be deemed to be extorted by violence when the violence is such as to produce an impression on a reasonable person and to create in such person the fear of having his person or property unjustly exposed to serious injury.

“(2) In such cases, the age, the sex and the condition of the person shall be taken into account.”

In another judgement Edgar G Soler -v- HH Sir David Campbell, the court had held that a contract is null due to violence because it removes the freedom of consent and in the case of moral violence it has to be the determining factor. 

In a 2002 judgment Calleja -v- Buttigieg, the Court of Appeal held that threats and pressure can bring about a defect in the consent, but these must affect a reasonable person, who would fear for himself or herself.

Magistrate Demicoli examined the evidence produced, including the affidavit of the plaintiff, who said under oath that the agreement with her son John was that these properties would be left to him in her will. She continued to say that at 75 years of age she was afraid to be left alone.

It may have been that the defendant insisted with his mother for the property to be transferred to him but this does not amount to violence

In fact when she went to the Notary she thought she would be signing a new will, but at the appointment she found out that she would be signing a contract of donation. Under cross examination, Dolores Saliba testified that she had set an appointment with the notary and at his office the atmosphere was calm and they were even joking with one another.

She said that she was happy with what had taken place, once the notary gave her the options she had in order to devolve the property to her favourite son. It was only when she returned home that she began to have doubts about what she did.

The court pointed out that the plaintiff complained that the defendant did not want her to speak to her other children, however, at the same time she also complained that none of them went to see her. 

She told the court that she had doubts of the donation she made only in retrospect. She accused her son John of hitting her after the contract was signed.

The notary testified that in front of her Dolores Saliba said that she did not want to leave anything to her other children and she had praised John Saliba.

The court commented that it may have been that the defendant insisted with his mother for the property to be transferred to him but this does not amount to violence. The plaintiff certainly knew what she was doing and this was done because she had a bad relationship with her other children. What took place was that the plaintiff regretted only after she transferred the property.

The court moved on to reject the plaintiff’s request to declare the donation transfer null and void.

Dr Malcolm Mifsud

Partner

Mifsud & Mifsud Advocates