In the process of introducing the topic of the rendering of services it is of the utmost importance to differentiate the contracted form of such work from situations in which the agreement is absent. This thesis specifically deals with the latter type of work, which in Malta is more commonly referred to as ‘servigi’.

The main difference between the two types of rendering of services is rooted in their very nature. In both cases, an obligation recognised by Law is created. However, in the case of the unsolicited type of services, the consent of both parties is absent and thus the classification of the unsolicited type is that of a quasi-contract.

Whereas the Maltese Civil Code covers the contracted type of services rendered, Maltese Law does not cover the quasi-contract form substantively. Hence, the latter developed exclusively through Maltese Case Law covering the matter.

Arguably, the main persisting source of difficulties faced by Maltese Courts in dealing with ‘servigi’ is the establishment of the amount of compensation due. Consequently, the main objective of this thesis is to outline the various points of view that our Courts have adopted in dealing with the problem of calculating compensation and finally arrive at the best possible solution.

Being a small country and having a strong Mediterranean influence, Malta has very particular social characteristics. Of direct importance to the matter being discussed is Malta’s family structure. Unlike in larger countries, family ties in Malta are not easily broken. In fact, Malta’s family structure can still be described as extended as opposed to the more cosmopolitan nuclear structure. In addition to the physical closeness due to the short distances that separate relatives, Maltese families generally tend to keep close contact and though not living under the same roof, relationships are kept at a very personal level. In such a scenario, it was inevitable that Maltese Courts had to be faced with a large number of claims for unsolicited services rendered.

The first problem facing the action for ‘servigi’ was whether an individual is entitled to remuneration for services performed in the absence of an agreement. As quoted in relatively recent Maltese judgements including ‘Carmela Farrugia et vs. Mary Abela’ which was decided by the Court of Appeal on the 6th October 1961, that query was answered in the affirmative in very early cases such as ‘Cutajar vs. Falzon’ decided by the First Hall of the Civil Court on the 2nd of Januray 1843.

In the latter judgement, the Court held that in the absence of an agreement, compensation may still be due if from the behaviour of the party rendering the services and other circumstances of the case it appears that such a person did not intend to offer the services gratuitously. As early as 1843, compensation was therefore awarded in the absence of an agreement.

Nonetheless, initially Maltese Courts were still reluctant in following this principle, particularly in the case of services rendered between relatives. Later judgements however, upheld the position established in ‘Cutajar vs. Falzon’. Though the change was understandably slow, eventually Maltese Courts familiarized themselves with this new idea and accepted this principle. The First Hall of the Civil Court, in the case of ‘Vittoria Mula vs. Francesco Caruana ed altri’, decided on the 10th of January 1873, clearly stated that though no salary was agreed between the parties for the services rendered, from the circumstances of the case it was clear that the person rendering the services had done so with the intention of being compensated. In such circumstances, the claim for compensation should be upheld.

In the abovementioned case of ‘Farrugia et. vs. Abela’, the Court of Appeal did not only confirm that position but it actually quoted the early judgement of ‘Cutajar vs. Falzon’ in its considerations. By that point, Maltese Courts had long been unanimous in their acceptance of the principle that the lack of agreement is no bar to compensation if the right circumstances subsist. Today, there is no doubt that such position is firmly established within Maltese Courts. As confirmed in very recent judgements, if from the circumstances of the case it results that compensation is due, such compensation should be awarded even in the absence of an agreement.

Another interesting point of discussion that characterized cases dealing with ‘servigi’ from the later 1800s until it was settled in the mid part of the 20th Century was the gratuitous nature or otherwise of the services rendered. Undoubtedly, the great majority of cases facing this problem were the ones dealing with services rendered between relatives. The problem was rooted in whether to treat such services as rendered ‘familiaritatis sive pietatis causa’ or as any other services rendered between strangers.

In the former situation, great emphasis is laid on the relation element, whether by consanguinity or affinity. Thus in such cases the Court would presume that the services were rendered as a liberality and the person rendering the service would have to bring forward proof of the intention to make some sort of gain in order to rebut the presumption of gratuity. Other judgements produced the opposite presumption. This meant that all services were presumed as rendered with the intention of making some sort of gain, whether in case of relatives or otherwise. Thus in these cases it is up to the person receiving the service to prove the contrary. Eventually Maltese Law Courts opted for the latter presumption and that is the established contemporary position.

From that point onwards, notwithstanding the basic definition of the parameters within which compensation can be awarded, Maltese Courts were still faced with the problem of the determination of the quantum of compensation. Therefore, though the situations that should give rise to compensation are to a large extent clearly defined, the actual computation of the compensation due is still relatively a grey area.

Different points of view vary from treating the services rendered as any another work that gives rise to payment to taking into consideration the fact that the parties concerned were relatives and thus less compensation would be due. There is also the question relating to whether different financial situations should give rise to different compensations even though the services would be practically identical. In certain judgements, the Courts also took into consideration the benefits that the person giving services enjoyed whilst rendering the same services.

The diversity of these conclusions might suggest that this peculiar area of Maltese Law needs to be covered substantively. A substantive version would definitely solve the problem of uniformity, but would it solve the actual problem of helping Maltese Courts better deal with claims for compensation based on ‘servigi’? The answer to this question depends on the substantive approach that might be adopted by the legislator.

Another option might be to develop a form of consensus amongst Maltese Courts, on the basic criteria that should be used in the exercise of the liquidation of the quantum. Nevertheless, such an option poses two main difficulties. It is extremely difficult to conceive such a uniform consensus to be attainable in the very near future. Moreover, keeping in mind that Malta does not follow the doctrine of precedent, it would not exclude the possibility of a judgment changing the rules of the game and reverting the situation back to square one.

Consequently, substantive action seems to be the inevitable solution to the problem. However, the nature of the claims based on ‘servigi’ warrants a particularly flexible legislative approach. Whilst the legislator should fix specific criteria that would have to be followed as a basis for the determination of the quantum, the Courts should be vested with an adequate amount of discretion allowing them to tackle the particular circumstances of each case.

In more practical terms, a plausible solution would be to fix the criteria of the nature and frequency of the services as compulsory points of departure of such an exercise of liquidation. In addition, the legislator could then formulate an un-exhaustive list of subjective considerations that would preferably be added to the equation. Such a list should include the degree of relation between the parties; the financial means of both parties; the benefits enjoyed by the servant throughout the rendering of the services and the money saved by the person on the receiving end of the services. At the same time, the Court would then be vested with the power to add or deduct from such a list according to the particular circumstances being presented before it. A provision indicating the compulsory exclusion of the use of the professional rate, that the work would otherwise attract, could also be a beneficial inclusion.

Such substantive guidelines should help Maltese Courts to be able to better deal with the problem of the determination of the quantum. Nevertheless, the amount of flexibility that seems to be required means that an advanced level of uniformity can never be attained. The core of the discussion lies in whether to treat such lack of uniformity as an actual deficiency. After all, this peculiar quasi-contract has sprouted from Maltese culture and this island’s way of life. From there, practically unaided, it forced itself all the way through to the Maltese Courts of Law. In conclusion therefore, it is perhaps fitting that such a particularly Maltese area of the law should retain its original and raw character that gave rise to its creation in the fist place.