A Prestanome is an indirect mandate, but the parties have to be aware of its existence to be valid. This was held by the Magistrates’ Court in Gozo, presided by Magistrate Dr Brigitte Sultana on 27 April 2021 in Peter Camilleri -v- Lee David Camilleri and Nicholas Camilleri.
Peter Camilleri filed an application wherein he explained to the court that he runs a fixed kiosk in Dwejra, Gozo. Due to other commitments he had allowed his brother Emanuel Camilleri to make use of this business. When Emanuel died, his two sons, Lee David and Nicholas Camilleri continued to run the business at the kiosk. The Plaintiff asked them to leave, but the Defendants refused. The Plaintiff asked the court to allow him to take over the kiosk once again. The Camilleri brothers filed a statement of defence and a counter-claim. They held that the fact that the licences of the kiosk was in the name of the Plaintiff, was due to the fact that he was acting as a prestanome of their father, and as such they should continue to operate the kiosk.
Both their father and uncle were carrying on the business in Doris Cassar’s name and she eventually passed it on to both of them. The Defendants asked the Court for the licences be transferred in their names. The Court immediately delved into the notion of Prestanome, since the Defendants claimed that they are the prestanome of the Plaintiff. A Prestanome is that person who represents another. The mandatory and his representative form a legal relationship between the two. This is not always evident to third parties. This is referred to as an indirect representation. It is direct when it is expressly declared. A prestanome takes place when there is a contract between the two on the fiduciary obligations, where the representative will appear in his/her own name, but in the mandatory’s interest. Article 1857(2) of the Civil Code states:
“(2) Subject to any other special provision of the law, a mandate can be granted by a public deed, by a private writing, by letter, or verbally, or even tacitly.” Therefore, there is no specific way a mandate may be given. However, if there is a transfer of immoveable property it must be express. A tacit mandate is one where there is the presumption that the mandatory gave his tacit consent to another to carry out a business in his name.
On the other hand, the representative must be aware that he is carrying out the business in the mandatory’s name. In Richard Rizzo Bamber noe -v- Giuseppina Rizzo noe decided by the First Hall of the Civil Courts on 11 January 1950, the Court held that a tacit mandate must be express and not implicit. Magistrate Sultana analysed the evidence brought before the Court. The Court commented that the evidence produced by the Defendants were at times confusing and contradictory.
On one hand they held that they the Plaintiff was the prestanome of their father and on the other hand they are claiming that both their father and uncle purchased the business. The evidence showed that the previous owner Doris Cassar sold the business to the Plaintiff in 1995. The transfer of the licences took place in 2008. The Plaintiff told the court under oath that he had bought the business with his money and invested his money in it. There is a stack of receipts and other documents in Peter Camilleri’s name. The evidence further showed that the Plaintiff’s brother, Emanuel Camilleri had a drug problem and had a disruptive life. The story was that the Plaintiff was looking to open a catering business.
His brother Emanuel suggested that he take over the Dwejra kiosk. At the time Emanuel Camilleri had to pay a large fine and because of his drug use and was unable to find a job. The Plaintiff offered to pay his fine as long as he worked in the kiosk to repay him. They both agreed that Emanuel was to purchase 49% of the company operating the kiosk, but later refused to do so. Emanuel then agreed that he would continue to work at the kiosk for a further 3 years until he repaid his debt to his brother. Emanuel Camilleri died in August 2011. The Defendant Lee David Camilleri had in mind to develop the area of the kiosk, but this did not materialise.
However, all the plans submitted were in Peter Camilleri’s name. The Defendant claimed that the Plaintiff was not interested in the kiosk and did not attend. They claimed that their father passed on the money to the Plaintiff for him to pay Doris Cassar, the previous owner. They denied that the Plaintiff had paid their father’s fine and it was paid by Emanuel Camilleri. They insisted that it was them and their father who run the business, but did not find it necessary to transfer the permits and licences to them.
The Court concluded that from the evidence produced there was not a prestanome arrangement between the Plaintiff and his brother, Emanuel. There is no evidence showing that the business was in fact Emanuel Camilleri’s. Although Emanuel Camilleri was the one to pin point the kiosk to his brother, it was Peter Camilleri, who negotiated and struck a deal. It is not contested that Emanuel Camilleri that took care of the business and that there were payments made from Emanuel to Peter Camilleri, but it was more that one brother was trying to help another in difficult times.
The Court then moved to uphold Peter Camilleri’s claims and reject the counter claim presented by the Defendants.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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