Introduction to Law Notes (PJG) PDF

Introduction to Law \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Pro Le Gomena: It has been used b...

Introduction to Law \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ Pro Le Gomena: It has been used by many in the faculty to refer to the basic notions/ fundamentals of civil law. We will be speaking solely on civil law. Our topics include: 1. The sources of civil law 2. The application of civil law in time 3. The meaning of patrimony 4. The general principles of civil law 5. Selected rules of civilian interpretation Any general civil law textbook is suggested. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ [The Three Major Systems of Law] 1. **Common Law: A system which originally developed in England.** Because of the English colonisation process, this common law was taken both by English emigrants away from home and brought to conquered lands by the English themselves. There are certain variations throughout the world. One common/defining characteristic of the common law is the binding nature of court judgements/based on unwritten law formed by previous court decisions. This is sometimes expressed in the Latin term "stare decisis", which means that highest courts bind those lower than them in the matters of law (ex: what a supreme court decides in places like England and Australia, which practice Common Law binds all the lower courts, even if the judges do not agree with the decisions). Another characteristic is called equity, which comes in two forms: The English Tradition, and the continental tradition. In practice they are not so different, yet their origins are. English Tradition: Looking back at English history, the courts were originally preceded over by a king or a queen (even today the courts in England are called "His Majesty's Courts"). Over time, this was delegated to a Prime Minister with judicial functions known as the Lord Chancellor, a servant of the king with judicial power. These people were learned in Roman, Church, and Civil law. Some historical examples include Thomas Moore. Even today, the high courts of London still has a chancery division. The lord chancellors developed a series of court remedies which were called equity. Over the centuries, the lord chancellors developed a body of law called equity. Equity was a system of law created to provide fair outcomes when common law was too strict or rigid. The Court of Chancery dealt with cases based on fairness and justice rather than just following strict legal rules. It focused on the specific circumstances of each case. One of the most important of equity's creations is the trust: a form of law in which assets can be handed over to a trustee under certain terms and conditions to ensure that one's belongings and assets are handed over to the right people. Most of today's English trust law is written down and recorded, yet it finds its roots in these times. 2. **Sharia Law/Religious Law: A law based mostly on the holy book of the Islamic faith.** It is generally applicable in places where Islam in practiced. There are sharia laws, sharia courts, etc... Sharia does not only apply to family inheritance and property, but also to finance. According to the Holy Quran, it is wrong and unallowed to lend with interest. Therefore, there are sharia compliant banks and financial centres who perform financial transactions. Islamic banks make a profit through equity participation, which requires a borrower to give the bank a share in their profits, rather than paying interest. It is large in many areas around the world and not only in places where we would naturally assume them to be. 3. **Civil Law: The derivation over many centuries of Roman law.** After the fall of the Eastern and western roman empires, there came a middle period known as the dark ages, where Europe was politically characterised by being overrun by tribes like the Huns, and Roman law was forgotten. In the early Middle Ages, the study of roman law was revived and texts rediscovered through important universities like Bologna, Salamanca, and Oxford. From this revival of Roman Law, there came what is known as the Jus Commune. This was the application of Roman law with its naturally regional and political variations over continental Europe. This was therefore Roman law as it developed from classical texts, and the works of Emperor Justinian live on. It is important to note that the Jus Commune, the roman law tradition of Europe, has nothing to do with the Common Law, the English system that they transported to its colonised lands. Civil law is hence codified law drawn from national legislation and custom as well as ancient Roman law. +-----------------------------------------------------------------------+ | **Civil Law as a Legal System**: This refers to a major legal | | tradition, primarily based on written codes and statutes rather than | | on case law. Originating from Roman law, civil law systems are common | | in many parts of Europe, Latin America, Asia, and Africa. In these | | systems, legal principles are codified into comprehensive statutes, | | and judges apply these codes to cases rather than relying on judicial | | precedents. | | | | **Civil Law as a Type of Law**: This term also refers to the branch | | of law that deals with private rights and disputes between | | individuals, such as contracts, property, family matters, and torts | | (civil wrongs). This is distinct from criminal law, which addresses | | offenses against the state or public order. | +-----------------------------------------------------------------------+ The Era of Codification was a process born out of a political will and scholarship to create codes. What is a code? A systematic collection of the laws all put together. The idea was to have one body of law, hence the term of Codified. There were many nations and states which had their codes unified and organised into one body in agreement with itself: The Prussian Code, The Austrian Code, The German Code, The Dutch Code, and the Former Eastern Communist codes, The French Cod Civil of 1804/the Code Napoleon. Our own civil code was consolidated and organised in 1868, mostly by Adrian Dingli, a jurist. This was heavily based on the French code. [The Sources of Civil Law] Sources of civil law are written law, customary law, jurisprudence, legal or juridical negotia, and sometimes the writings of respected authors are a source of law. Although there is a general hierarchy, they very often do not operate in any linear matter (vertically) but rather horizontally; this means they operate at the same time. a. **Written Law** A lot of domestic written law is recorded through electronic and digital means. There are other significant domestic laws in various areas that are not part of the civil code but often interact with it. For example, family law includes provisions on separation, divorce, and affiliation. The civil code outlines the rules for establishing legal maternity and paternity. The civil code addresses issues like separation and divorce, but the Marriage Act, for instance, is a separate law that interacts with the civil code rather than being part of it. Other examples include the Civil Unions Act, which provides an alternative to marriage, and cohabitation laws, which allow people of any gender to live together and register their cohabitation, whether formal or simply de facto. A written law that is regularly enforced allows for the creation of guidelines and procedures, as well as codes of conduct, that have legal authority. These guidelines and codes are issued under the law and are legally binding. Additionally, procedures or policies created under existing laws can also be legally binding. Similarly, there is extensive legislation regarding residential and commercial leases, though this also exists outside the civil code. It is important to note that EU law takes precedence over domestic law, including civil law, and can override these national provisions. Directives are instructions issued by the European Union, through the Council, requiring the 27 member states to incorporate the directives\' content into their national legislation. In contrast, EU regulations apply directly in all member states without the need for incorporation into local laws; they are published in the official gazette and typically take effect within two years. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Read chapter 460 of the laws of Malta/the European Union act, which refers to the treaty of Lisbon, Athens... These confirm the supremacy of European Union law in domestic law. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- The European Union (EU) law holds supreme authority. However, the following case demonstrates a challenge to this supremacy: Amendments to Malta\'s Gaming Act arose due to numerous lawsuits filed by foreign players against Malta-registered gaming companies, which they pursued in their own jurisdictions (limited to civil and commercial cases). In some cases, foreign courts, like those in France, accepted jurisdiction over disputes involving Maltese entities. Consequently, judgments made by foreign courts against Maltese citizens or companies were enforceable within Malta. -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- To protect its gaming industry, Malta amended the Gaming Act to stipulate that judgments from EU courts against Malta-registered gaming companies would no longer be enforceable in Malta. -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Two Judgements: - In the case of **Michael Felsburger vs. TZG Interactive Gaming**, decided by the First Hall of the Civil Court on July 26, 2023, Judge Anthony Abela addressed a key issue regarding the relationship between EU law and Maltese law. While it is true that, according to Chapter 460, EU law is considered supreme, the court emphasized the importance of Article 6 of the Constitution of Malta, which establishes the Constitution as the highest law in the country. As a result, the court rejected the argument that EU law has ultimate authority over Maltese law. It upheld the provision in the Gaming Act that states that unfavourable judgments from other EU courts cannot be enforced in Malta. - In the case of **Jasmine Buchegger and Others vs. Rabbit Entertainment Limited**, decided by the First Hall on August 8, 2023, under Judge Francesco Depasquale, it was clarified that the judgments issued are not final, as we must await the Court of Appeal\'s decision. Additionally, the recent amendment to the Gaming Act has led the European Union to initiate infringement proceedings against Malta. This action emphasizes that the supremacy of EU law is non-negotiable within the Union---once a country is part of the EU, it must adhere to its laws. b. **Customary Law** This is the second source of civil law. Historically, customary law held significant importance within the historical school of legal thought, which posited that law is an expression of the will of the people. This school emphasized the collective spirit of the community, known as Volksgeist. Customary law develops from consistent behaviour in a specific area or sector, requiring repeated actions over time. For it to be recognized, this behaviour must be regular and occur for an extended period. It involves not just the repeated actions of individuals, but also their belief that following these behaviours---whether doing something or not---is a legal obligation that can have consequences. It is a form of law, distinct from social customs or norms. It encompasses legal rights and obligations, carrying all the associated effects and implications. Typically, customary law begins as unwritten, emerging from consistent and repeated patterns of behaviour. Over time, it is often codified into formal legal statutes. Customary law plays a crucial role in commercial law. Customary law has two main requirements: 1. **External Objective Behaviour**: The parties involved must exhibit consistent behaviour over a period, demonstrating their actions through observable conduct. 2. **Subjective Belief**: Those involved must believe that their actions---whether to act or refrain from acting---constitute a legal obligation, which carries consequences for any violations of this obligation. +-----------------------------------------------------------------------+ | ***Ab Antiqa:*** Traditionally, this term referred to the idea of | | something being recognized or established from ancient times. | | However, this is no longer the prevailing view today. | | | | ***Opinio Juris Necessitates:*** This phrase means that something is | | considered a legal necessity. | +-----------------------------------------------------------------------+ Customary law is generally considered less significant than written law; when there is a conflict between the two, written law takes precedence. This demonstrates that the positivist school of thought has gained priority over the historical school. However, customary law continues to hold an important role in the legal system. +-----------------------------------------------------------------------+ | **Examples of Customary Law** | | | | - With an overdraft, a business can borrow, deposit, and withdraw | | money as needed. This flexibility helps the business access funds | | for purchases, like buying stock. Customary law indicates that | | compound interest is \"interest on interest.\" In the case of an | | overdraft, this means that interest is charged on previously | | accrued interest. However, this practice is not always considered | | legal. | | | | - In general, an agent is a commercial representative, usually from | | a foreign country, who acts as a distributor. There is a common | | understanding in the trade that certain documents, like a | | voucher, indicate that the agent is not responsible to the | | service providers. However, customary practices have expanded | | this notion; if an agent receives funds, they become personally | | responsible for those funds. | +-----------------------------------------------------------------------+ In some cases, a rule may refer to a custom, as outlined in Chapter 13 of the Commercial Code. A court will not recognize or consider a legal custom unless it is explicitly presented by the party involved. While you can cite a specific article of law, if you wish to invoke a legal custom, you must specifically bring it up and provide evidence for it. +-----------------------------------------------------------------------+ | **The distinction between Customary Law and Negotia** | | | | There is a question regarding the distinction between customary law | | and negotiated agreements (or negotia). Customary law emerges from | | consistent behaviour that fosters a shared understanding of rights | | and obligations, thus creating customary rules over time. This | | contrasts with negotiated agreements, which reflect specific choices | | made by parties in contractual relationships. Customary law is more | | general and abstract, while negotiated agreements are particular to | | the parties involved and go beyond general trends of behaviour. | +-----------------------------------------------------------------------+ c. ***Jurisprudence*** Jurisprudence is the study and theory of law, examining its nature, purposes, and principles, as well as how laws are created, interpreted, and applied. It addresses fundamental questions about justice, rights, and obligations within legal systems, often through various branches: analytical (structure and language of law), normative (ethical aspects of what law *should* be), historical (development over time), comparative (cross-cultural examination), and sociological (interaction between law and society). In essence, jurisprudence seeks to deepen our understanding of law's role and its impact on society. Jurisprudence encompasses the judgments and operational practices of the courts. A primary view holds that judges are tasked with deciding cases according to existing law, not creating new law. Their role is to interpret and apply the law to individual cases. This interpretation is influenced by judicial precedent, where lower courts are bound to decisions made by higher courts, a principle central to common law systems. In these systems, precedents are binding, establishing a clear hierarchy where lower courts must adhere to the legal principles set by higher courts. In contrast, civilian law systems treat judicial decisions as persuasive rather than binding. Here, judgments hold significant influence but do not legally bind future cases. Although technically independent, civilian courts often defer to previous rulings for consistency in legal application. This practice underscores the practical influence of precedent, even in systems where it is not legally mandatory. There is a debate on whether jurisprudence -- the body of court judgments and operations -- serves as a genuine source of civil law. Some argue that while legislative and judicial roles differ, judicial interpretation adds to the law, involving a degree of judicial creativity. Courts, through interpretation, may extend beyond the strict letter of written statutes, potentially shaping the law in ways that transcend mere interpretation. This process can involve developing principles that are applied consistently, particularly when the law's text is ambiguous or silent on an issue. When courts issue rulings, particularly in complex or novel cases, judges often refer to prior decisions for guidance, even if these precedents are not binding. Major courts, such as the U.S. Supreme Court, the European Court of Justice, and the French Court of Cassation, wield significant power in shaping the interpretation and application of the law, sometimes setting influential standards that affect legal practice broadly. The Court of Cassation, for instance, plays a critical role in ensuring that French law is applied consistently and uniformly. Judgments, while not a formal source of law, have an indirect but substantial influence in shaping civil law. This impact occurs even though judicial rulings are not produced through formal legislative processes; they nonetheless represent a \"real\" and practical source of law, especially where they establish widely accepted interpretations. [Effect of Law and Time ] Law has a starting point, and it frequently undergoes changes and amendments over time. It is essential to recognize that law exists within a temporal context. This temporal nature of law gives rise to principles such as prescription, where rights or claims can be acquired over time. Conversely, if a party fails to act within a prescribed timeframe, the right to initiate certain procedures may lapse due to inactivity. The specific issue we are addressing is: When there is an overlap between an old law and a new law, how does one reconcile, manage, or apply the effects of the two? Some provisions or effects of the old law may continue to exist under the new legal framework. In such cases, the critical question is: which law applies, and how are conflicts between the two resolved? Issues like these arise in many areas of law: a. **Marital Law:** Not long ago, the grounds for the annulment of marriage were expanded. This raises the question: should marriages entered under the old legal framework be evaluated under the old law or the new one? b. **Succession Law (2004):** Significant amendments were made, particularly in addressing the discriminatory treatment of children born out of wedlock (illegitimate children). Before these changes, there was a clear distinction between the rights of legitimate and illegitimate children. The amendments abolished this distinction, ensuring equal succession rights for all children, regardless of their birth circumstances. c. **Law of Lease:** This area of law has undergone frequent changes, especially regarding residential tenancy. Commercial leases are largely left to the free market, but residential leases remain highly regulated to protect tenants. **Before 1995:** Tenants were protected by a right to indefinite lease renewal, subject to conditions reviewed by the Rent Board. **After June 1, 1995:** New leases became liberalized, removing this indefinite protection. **In 2021:** Additional measures were introduced to protect tenants within certain limits, re-establishing protections for residential leases. These examples highlight a recurring issue: when a situation arises under an old law but continues under a new one, which law applies? To address such challenges, transitional provisions are often included. These specify that the new law will take effect from a particular date, ensuring clarity that any situations arising after that date will be governed by the new legal framework. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- In some cases, transitional periods are also provided to allow adaptation to new regulations. For instance, many EU regulations provide a two-year adaptation period. A current example is the Digital Resilience Act, which addresses software resilience in the financial sector and is set to take effect on January 25 of next year, giving stakeholders time to prepare for compliance. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- How should we address facts and legal effects that began under an old law but continue to exist or produce consequences under a new law? Our legal system does not include a specific rule or principle to resolve this issue. In contrast, other jurisdictions provide clear guidance: - **The Italian Civil Code** includes a preliminary provision stating that laws apply only to future cases. - Similarly, **Article 2 of the French Civil Code** explicitly establishes that laws are prospective, applying only to future situations. In the absence of such a provision in our Civil Code, this issue has been left to the courts to address. Over time, the courts have developed a guiding principle known as the theory of non-retroactivity of the law, which asserts that new laws should not apply retroactively to past events unless explicitly stated otherwise. -------------------------------------------------------------------------------------------------------------------------- ***Lex Non Habet Oculos Retro**:* The law does not have eyes at the back; looks forward and therefore it is prospective. -------------------------------------------------------------------------------------------------------------------------- Our courts have long adhered to the principles of the renowned Italian jurist Francesco Gabba, particularly his doctrine of della non retroattività delle leggi (the non-retroactivity of laws). This principle has guided generations of jurisprudence. However, a persistent challenge has been how to handle situations that are ongoing---where their effects began under the old law but continue under the new legal framework. While the principle of non-retroactivity ensures that laws are generally prospective, applying only to future cases, it provides limited guidance on resolving complex transitional scenarios. Over time, various attempts have been made to address these challenges. One significant distinction historically used---though less relevant today---is between expectations and vested rights. Vested rights, sometimes referred to in Maltese as dritt kwizit or akkuzit, are those rights that are fully established and acquired under the old law. The traditional approach was that new laws could apply to expectations (rights or situations not yet fully realized) but could not interfere with vested rights, which were considered protected and untouchable by new legislation. While this distinction offered a framework for addressing transitional issues, it has limitations in fully addressing the complexities of modern legal systems. Following the French Revolution of 1789, the revolutionary government enacted Law of Year II, which fundamentally restructured succession laws. The revolution sought to dismantle privileges associated with the nobility, the church, and inheritance, leading to the near abolition of traditional succession laws. However, the Year II law was applied retroactively, affecting successions that had occurred even before 1789. The implications of this retroactive application were significant and raised concerns. Retroactively annulling rights that were already acquired is highly problematic. This danger underscores the importance of protecting vested rights (rights that are fully established under the law). In civil law traditions, there is a strong cultural and legal aversion to retroactively undermining such rights, especially through subsidiary legislation. The principle of non-retroactivity ensures that vested or acquired rights remain protected, whereas mere aspirations---rights that are not yet fully established---may be affected by retroactive legislation. Despite its widespread acceptance, this principle has faced criticism. Critics argue that it can be challenging to determine what constitutes a vested right as opposed to an expectation. Additionally, the principle does not account for extra-patrimonial rights (non-economic personal rights), which complicates the framework further. It is also important to note that while civil and criminal law generally disfavour retroactivity, there is no absolute prohibition against retroactive legislation in civil matters. Exceptions are sometimes made, depending on the context and the broader implications of applying new laws to past situations. Various approaches have been proposed to address the challenges of applying new laws to ongoing situations. One classification distinguishes between objective legal situations and subjective legal situations: a. **Objective legal situations** refer to situations governed by general legal provisions, such as changes in public law or regulations. In such cases, retroactive application of the law may be permitted. b. **Subjective legal situations** involve direct human intervention, such as contracts, wills, or other negotiated agreements. In these cases, retroactivity is generally not allowed, as it would undermine agreements made in good faith under the old law. While the use of retroactivity may seem less common today, it is incorrect to suggest that the principle of protecting vested rights has been abandoned. This principle remains fundamental within the context of civil law, particularly concerning how laws are applied over time. Even outside civil law, the protection of vested rights continues to be a cornerstone of legal interpretation and application. +-----------------------------------------------------------------------+ | **Contemporary Understanding** | | | | In modern legal terminology: | | | | - **\"Modern\"** refers to something recent but not necessarily | | current. | | | | - **\"Contemporary\"** refers to what is current or happening | | today. | | | | Key principles regarding the application of old and new laws in the | | contemporary understanding: | | | | 1. **Old Law:** As a general rule, the old law does not have | | prospective application or ongoing effect once a new law comes | | into force. | | | | 2. **New Law:** The new law typically has an immediate prospective | | effect, applying to cases and situations that arise after its | | enforcement. | +-----------------------------------------------------------------------+ In the past, a significant distinction existed between vested rights and acquired rights. Our courts generally adhered to this distinction, holding that laws could not have retroactive effects on vested and acquired rights but could affect those that were not yet established. However, over time, this distinction began to create challenges. Today, the prevailing principle is that new laws do not apply retroactively; instead, they operate only in the present and for the future. While many laws helpfully specify the exact date on which they come into effect, issues can arise in the temporal application of civil law. This is because certain facts or legal effects that began under the old law may extend into the period governed by the new law, creating potential conflicts or ambiguities. A fundamental principle of legal systems is that new laws do not have retroactive effect. This means that matters which have been concluded and finalized under the old law---whether in terms of established facts or ongoing legal consequences---cannot be revisited or altered by the new law. However, there are notable exceptions to this principle: 1. **Express Retroactivity:** A law can be explicitly declared retroactive by the legislature. While this is uncommon, it is legally permissible as there is no absolute prohibition against enacting retroactive laws. Such laws are typically used sparingly, given their potential to disrupt settled expectations and create uncertainty. 2. **Clarificatory Laws:** In cases where ambiguity in the interpretation of a previous law arises, a new law may be enacted to clarify its intended meaning. This type of retroactive legislation is rare but may be deemed necessary to ensure consistency in legal interpretation and application. 3. **Confirmatory Laws:** To resolve legal uncertainties, particularly those affecting civil and patrimonial rights, a legislature may pass a confirmatory law. These laws are intended to affirm the validity of certain legal situations or transactions, thereby eliminating doubt and providing legal certainty for all parties involved. New laws generally have prospective application, meaning they apply to future situations unless stated otherwise. In civil proceedings, procedural rules typically apply immediately upon enactment. However, determining how new laws affect ongoing situations---whether factual circumstances or their legal consequences---can be complex. As a general rule, ongoing situations that have not yet concluded are subject to the immediate application of the new law. However, there is a notable exception for contractual relationships. A strong presumption exists that the legal framework governing a contract remains the one in force at the time the contract was made, even if subsequent changes to the law occur. This principle upholds the parties\' expectations and ensures stability in contractual obligations. +-----------------------------------------------------------------------+ | **Contracts** | | | | Contracts are agreements to which society attributes a high degree of | | trust, as they reflect the outcome of mutual negotiations. Social | | stability relies on respecting these agreements, as disregarding them | | arbitrarily could lead to widespread disorder. This is particularly | | important in matters of property rights, where contracts are | | generally governed by the laws in force at the time they were made. | | An important exception to this principle involves collective | | agreements, which can sometimes be subject to changes imposed by new | | legislation. For instance, a contract might stipulate that an | | employee works 40 hours per week from Monday to Friday. If a new law | | allows work hours to be distributed across six days, this legal | | change could override the original terms of the contract, making | | Saturday work permissible despite the agreement. Such situations | | exemplify cases where legislation applies retroactively to modify | | contractual obligations. This can lead to significant implications | | for contracts and rights previously considered inviolable. | +-----------------------------------------------------------------------+ The exception to this principle arises when legislation explicitly provides for retroactive application, extending the new legal provisions to pre-existing contracts. Such retroactive measures are uncommon and typically require clear legislative intent or compelling public policy reasons. [Patrimony ] The concept refers to a person's (whether natural or legal) ability to own assets and incur liabilities. In simpler terms, it is the framework (the container) that allows for the ownership and management of assets and liabilities, rather than the actual contents themselves. This capacity, known as patrimonial capacity, arises from personhood. The Maltese civil law system follows the French legal tradition, which significantly influenced the development of this notion. Two prominent French jurists from the University of Strasbourg, Charles Aubry and Charles Rau, were instrumental in shaping the theory of patrimony. When Malta\'s civil code was being drafted, Adrian Dingli chose to adopt their ideas as a foundation for the local legal system. *Questions to ask:* - *If the Jus Commune is the roman law tradition of Europe which makes our civil laws, and Pro Le Gomena are the fundamentals which make our of civil law, are Pro Le Gomena and Jus Commune the same thing?* - *Article- 993 and 1007 993---\> contracts have to be carried out in good faith by all that which custom and equity involve Custom is included in this article/ in the execution of contracts Customary clauses are in a contract. They are deemed to be included.*