The First Hall of Civil Court, presided over by Judge Anna Felice, in the case ‘Aaron Scicluna as administrator of A&A Car Imports v Nazzareno Bartolo’, held that the warrant in factum was erroneously issued and consequently ordered its revocation.
The applicant requested the court to issue a warrant in factum against the respondent with the aim of ensuring the payment of a sum of money owed to him following the transfer of a vehicle. The respondent, however, argued that the court’s order issuing the warrant in factum was erroneous and for this reason requested the court to revoke the said warrant.
The respondent requested the revocation of the said warrant on the basis of the fact that a warrant in factum should be issued in the case of an ‘obligazzione di fare’ (an obligation to do something) and, in this case, it was issued on the basis of an obligation to pay a sum of money not an obligation relating to the performance of an act.
The court observed that Article 385 of the Code of Organisation and Civil Procedure regulating the warrant in factum states that
“1. In the execution of a warrant in factum, the court executing officer shall proceed in such manner as ordered in the warrant.
2. The warrant in factum shall contain the order that the party against whom the warrant is issued is to be conveyed to prison, in order to be therein kept at his own expense, until the performance of the act ordered by a judgment or until such time as the court may deem necessary to ensure such performance.
3. The warrant may not be issued other than by an explicit order of the court to be issued on a demand made by application by the creditor.
4. The court shall only issue the warrant if it is satisfied that the creditor does not have any other means of execution available.”
The warrant in factum therefore has three main requirements: primarily, the obligation of the party against whom the warrant is issued must be an obligation relating to the performance of an act; secondly, the request for the performance of the act must be made by means of an application and; thirdly, no other means of execution must be available to the applicant.
The court further observed that, since of its nature, it is such a serious warrant, the creditor can only request the warrant when he has no other available remedies
Quoting the case ‘Bartolo v Micallef’ decided on May 19, 2005, the court explained that the warrant in factum is a very serious warrant and is different from other warrants because the court is required to hear both parties before issuing the warrant in factum. The person against whom the warrant is issued would be conveyed to prison and kept there at the expense of the creditor until the performance of the act ordered by a judgment or until the court deems it necessary to ensure such performance. It is for this reason that it should not be issued without a proper examination of the position of both parties involved.
The court further observed that, since of its nature, it is such a serious warrant, the creditor can only request the warrant when he has no other available remedies. Moreover, the court stated that for it to issue the warrant in factum, the warrant must be aimed at enforcing a judgment condemning the debtor to fulfil an obligation, which obligation must not involve the payment of a sum of money but can only involve the performance of an act. The court must therefore ensure that the warrant in factum is being issued in relation to an obligation not of the payment of a sum of money or the giving of something determined but must consist of the performance of an act by the debtor himself.
After having made the abovementioned observations, the court confirmed that Article 385 allows the warrant in factum to be issued only if the debtor does not perform an act he was ordered to perform and that, in the present case, the respondent had an obligation to pay a sum of money.
Quoting Amos & Walton in their book Introduction to French Law (third edition, 1979, page 138), the court stated that “an obligation is a legal bond between two persons in virtue of which one of them is bound, in favour of the other, to do a certain act or to abstain from doing an act or to create a right over a thing or transfer the ownership of a thing”.
The court further stated that there is a conceptual and juridical difference between an obligation to give something and an obligation to do something and, in this case, the order given by the court was an order for the respondent to give something, that is, to pay a sum of money, not to do something, and for this reason accepted the respondent’s pleas and revoked the warrant in factum.
Rachel Genovese is a trainee advocate at Ganado Advocates.