A reader recently discovered that her parents have sold a property to one of her brothers. This property was originally used by her father to conduct his business and her brother has continued using the premises to run the business.

The reader is disappointed that the property was sold for a ridiculously low price and is suspecting that her parents must have been fooled by her brother to enable him to acquire the property cheaply.

What is the reader's position at law?

First and foremost, the reader should know that every owner has the right to dispose of his property at will for the price he wishes and so one may immediately remark that the fact that the property was sold for a low price does not necessarily imply that some form of fraud existed at the time of the sale.

Of course, one would have to determine whether all the essential requirements to the validity of a contract existed at the time of the transfer of the property in question. Therefore, the reader would have to establish whether her parents were legally capable of contracting at the time of the sale.

For example, if they were interdicted or incapacitated at the time of the sale then she would have justified grounds to impugn the sale of the property due to the inexistence of one of the essential conditions which the law stipulates for a contract to be valid and binding.

Section 974 of the Civil Code provides that where consent has been given by error, or extorted by violence or procured by fraud, it shall not be valid. Fraud is not presumed and the person alleging the fraud must prove it. Therefore, if the reader suspects that her brother may have fraudulently fooled her parents to dispose of the property so cheaply, she must prove this before the courts.

Another important provision of the law, which may seem applicable to this case, is that fraud shall be a cause of nullity of the agreement when one of the parties resorts to using artifices without which the other party would not have contracted. Again, much depends upon the proof that the reader could possibly produce to request the courts to annul the sale on the ground that her parents' consent was vitiated by fraud. Of course, failure to prove the allegation would leave the reader without any other remedy since, as already stated, every owner has the right to dispose of his property at any price.

If it could be proved that the sale of the property in question was fictitious and in reality was a donation from her parents to her brother, this could give rise to future potential claims by the reader upon the death of the parents if there are insufficient assets in the testator's estate to satisfy the portions reserved by law as legitim.

Send your legal problems, of general public interest, together with your name and address, to The Lawyer, The Sunday Times, PO Box 328 Valletta CMR 01 (fax: 2124-0806; e-mail: sunday@timesofmalta.com).

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