- Dr Martina Francica
‘Servigi’ – To care and not get paid?
It is no secret that Malta has very particular social characteristics, for instance - our family dynamics. Unlike larger western countries, here, family ties are not easily broken. In addition to the physical closeness between relatives, Maltese families generally tend to keep close contact and despite not living under the same roof, relationships are kept at a very personal level. In such a scenario, it is inevitable that Maltese Courts are continuously faced with a large number of claims for services rendered (better known in Maltese as ‘servigi’).
Therefore, one may ask, how can I be paid for services rendered, without being a party to a contract of service?
The notion of ‘servigi’ under our law, more often than not refers to those instances where there is an unsolicited type of service. Thus, it cannot be considered to be a contract given that the elements of agreement are missing. Our Civil Code, (Chapter 16, Laws of Malta) describes these as Quasi-Contracts in which there is a lawful and voluntary act, which in turn creates an obligation towards a third party, or a reciprocal obligation between the parties themselves.
It is a well-established principle in our Courts, that services rendered, even to the closest of family members, are being rendered with the intention of being compensated. This juris tantum presumption may only be rebutted with sufficient evidence, provided by the party allegeing that such services were not intended to be compensated (Jean Borg vs Christian Zammit, First Hall Civil Court, 27th February 2018). What is interesting to note however, is that given the nature of these Quasi-Contracts, the liquidation of the quantum of compensation shall not only consider the monetary value of the service provided, but also a list of factors developed over the years as listed below.
In such cases it is in the Court’s discretion to establish the parameters and criteria to serve as a basis for the calculation of the compensation due, either arbitrio boni viri (to its discretion) or with the assistance of a court expert (Anthony Schembri et vs Aldo Busuttil – First Hall, Civil Court – 28th May, 2003. Albeit, the situations that should give rise to compensation are to a large extent clearly defined, the actual computation of the compensation due is still a relatively grey area.
In fact, over the decades, our Courts developed a criterion to be taken into consideration when liquidating such amount namely:
(i) The closeness in relation between the person rendering the service and the person receiving such service;
(ii) The frequency of such services;
(iii) The nature of the service;
(iv) The inconvenience or struggles encountered when rendering such services;
(v) The level of skill, knowledge or specialisation required to render such services;
(vi) If the person rendering the services encountered any expenses or spent any of their own money;
(vii) The means of the person that benefitted from these services;
(as held in Tessie Micallef et vs Lawrence Galea et - 28th April 2011)
Further as held in the case, Anthony Catania pro et noe vs Maria Agius (11th December, 2003), the First Hall, Civil Court held that as a general rule, the compensation granted shall be greater when the person receiving the service is either sick or bedridden and requires continuous personal assistance. A clear reflection of the above criterion. Whilst on the other hand, lower compensation is usually attributed to the close family relations which tend to be the subject of such cases, with disputes often arising upon the opening of a succession.
An obstacle often faced by persons claiming such compensation is the element of prescription, also known as the ‘court’s timer’ - which in such cases is 5 years. This means that if a person rendered services for 15 years, he may only bring an action to cover the last five. That being, said the clock would have to start running from the beginning in cases when there has been an interruption. In most cases this occurs either when there is the making of a new will or when such person recognises the fact that that compensation for services rendered is in fact due, in line with article 2133 of the Civil Code.
Martina Francica is a Legal Trainee at PROLEGAL Advocates.
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