THE NOTION OF A CONSUMER

So at the very outset, a fundamental question in consumer protection: who is the consumer? The concept of the consumer in Maltese legislation is of recent origin. The bulk of Maltese private law is still incorporated in the Civil Code drafted in the late 19th century on the model of the Code Napoleon. The Code still today provides the bulk of the rules governing contracts in general, the contract of sale and the supply of services. It will consequently come as no surprise that the notion of consumer protection and the figure of the consumer had not yet been adequately identified or developed at that stage. The word “consumer” is conspicuously absent from the Code which did not and still does not recognise the figure of the consumer as such. Much of the original Code is still in its original shape and some of its rules do not reflect the modern, complex, dynamic society of today, and sound archaic both in concept and in formulation.

In the law of sale, to take just one important illustration, the Code recognises the figures of the vendor and the purchaser. With the exception of some old traditional rules safeguarding the position of minors, women and persons of unsound mind, all purchasers are considered and treated equally and uniformly by the Civil Code. This guaranteed a minimum level of protection in the form of the Roman law-derived warranties in the rules governing the contract of sale. The first of these warranties relates to peaceful possession; this safeguards the proper passage of ownership rights and consequential enjoyment of the good being acquired. Secondly, the warranty against latent defects gives a purchaser a choice between two remedies when a thing bought suffers from a serious defect which renders it partially or completely useless. The choice is between retaining the item and receiving a partial refund, and returning the item and receiving a full refund. Finally, where a thing acquired falls short of the type or quality specifically promised by or requested from the seller, the purchaser is allowed to withdraw from the contract and receive a full refund.

No attempt is made in the rules governing the law of sale to draw any form of distinction between purely private purchasers on one hand, and business, professional or other non-private purchasers on the other. That conceptual distinction, vital for a coherent consumer policy, came much later. There is still no clear suggestion in the Civil Code that persons transacting from different, often unequal, economic and bargaining backgrounds merit different treatment, except in very limited circumstances. Caveat emptor and the sanctity of contracts still underpin our Civil Code, where the consumer remains a solitary anonymous figure, whose vary existence remains unnoticed.

The Civil Code also provides the basic rules governing the contractual relationship between a service provider and a client. The rules governing the institutes of mandate, letting of services and generally most of the law of obligations would need to be considered to have a full appraisal of this relationship. The laws on the specific financial services, such as the Banking Act and the Investment Services Act have only a minimal private law element, at most, and are primarily of a public-administrative law nature. This means that one would search in vain for a definition of a bank-client agreement in the Banking Act, or for an indication of the legally enforceable rights of a client against a licensed operator in the insurance legislation. One would have to search elsewhere, primarily the Civil and Commercial Codes and decided cases in Malta and abroad.

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