Litigation

What is an executive title and how can it be made enforceable?

By ‘executive title’ one refers to a legal mechanism on the basis of which execution can be obtained, operating on the presumption that the result of the claim or issue at hand is no longer open to challenge.

Thus, if a party is in possession of an executive title, he may enforce his claim by means of the issue of such executive title, generally an executive measure or an executive warrant.

According to Article 253of the Code of Organisation and Civil Procedure an executive title can the form of one of the following eight types of titles for it to be legally enforceable:

1. Judgments and decrees of the courts of justice of 
Malta;

2. Contracts received before a notary public in Malta, or before any other public officer authorised to receive the same where the contract is in respect of a debt certain, liquidated and due, and not consisting in the performance of an act;

3. Taxed bills of judicial fees and disbursements, issued in favour of the Registrar, any advocate, legal procurator, notary public, perit, judicial referee or witness, unless such taxed bills are impugned according to law;

4. Awards of arbitrators registered with the Malta Arbitration Centre;

5. Bills of exchange and promissory notes issued in terms of the Commercial Code: 
Provided that the court which is competent according to the value of the bill of exchange or promissory note may, by decree which shall not be subject to appeal, suspend the execution of such a bill of exchange or promissory note in whole or in part and with or without security, upon an application of the person opposing the execution of such bill of exchange or promissory note, to be filed within twenty days from the service of the judicial letter sent for the purpose of rendering the same bill of exchange or promissory note executable, on the grounds that the signature on the said bill of exchange or promissory note is not that of the said person or of his mandatory or where such person brings forward grave and valid reasons to oppose the said execution and in such case any person demanding the payment of the bill of exchange or promissory note shall file an action according to the provisions of the Commercial Code. 
The judicial letter referred to above in this proviso shall, under pain of nullity, notify the debtor of the right given to him by this proviso;

6. Mediation agreements made enforceable by the parties thereto in accordance with the provisions of the Mediation Act;

7. Decisions of the Consumer Claims Tribunal;

8. Decisions and awards of the Arbiter for Financial Services in accordance with the provisions of the Arbiter for Financial Services Act.

Other executive titles:

Although the list provided for in Article 253 seems exhaustive, one finds other executive titles not listed under the Code of Organisation and Civil Procedure. Examples of such executive titled are:

1. Mortgages in terms of the Merchant Shipping Act;

2. Government departments, in terms of special law, may create an executive title by means of a judicial letter;

3. Head of Government Departments may also write a letter accompanied by a sworn declaration that it is an executive title, such as the Commissioner of Inland Revenue and Commissioner of VAT.

General Provisions Regarding the Enforcement of Executive Titles

A distinction needs to be drawn between the execution of a judgment and the execution of the other seven executive titles mentioned in Article 253.

A judgment is an executive title par excellence. Its execution is directly and automatically enforceable in most cases. However, the enforcement of any other executive title may only takeplace after the lapse of at least two days from the service of anintimation for payment made by means of a judicial act, and this in terms of Article 256(2) of the Code of Organisation and Civil Procedure.

Procedure for Enforcement of Executive Titles:

Judgments and decrees, taxed bills and awards of arbitrators of the Superior Courts may be enforced within 15 years from the date it could have been enforced.

Judgments and decrees, taxed bills and awards of arbitrators of the Inferior Courts or Small Claim Tribunal may be enforced within 10 years from the date it could have been enforced.

Contracts, bills of exchange and promissory notes and judicial letters under Article 166A may be enforced within 5 years from the date it could have been enforced.
Lapse of the above-mentioned periods does not render the executive title unenforceable, as the periods mentioned in the law are not equivalent to prescriptive periods.

Once such periods expire, an application must be filed before the competent court requesting court to authorize such enforcement. The applicant must also confirm on oath the nature of the debt or claim sought to be enforced and that the debt is still due.

The rationale behind having such time periods is that the law presumes that after the lapse of such periods, the debt or claim would have, in all probability, been paid or satisfied.

Other Points on Enforcement:

Article 260 provides that an executive title may be enforced on both immovables and movables.

Moreover, Article 261 provides that two or more executive titles enforceable within the jurisdiction of the same court by any creditor of the same person may be enforced jointly by means of one instrument.

The Role of the Courts in the Enforcement of Executive Titles:

Article 264(1) stipulates that unless otherwise provided in the Code of Organisation and Civil Procedure, judgments are enforceable by the court by which they are delivered, even though the execution is to take place beyond the limits of the local jurisdiction of the court.

Likewise, sub-article (2) provides that any other executive title under Article 253 is enforceable by the court competent to take cognizance of the subject-matter thereof.

Vis-à-vis appeals, the judgment will be enforceable by the court of first instance, independently of whether the Court of Appeal confirms, varies or reverses the judgment of the court of first instance, and this in accordance with Article 265 of the Code of Organisation and Civil Procedure.

Disclaimer: This information is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on legal@emd.com.mt.

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