There are judgments that pass unnoticed and others that whisper ahead of their time. The 2013 decision in Alberta sive Bertha Cassar Torregiani vs Michael Stivala et is one of the latter. Presided by then Mr Justice Joseph Zammit McKeon, the case turned on the interpretation of Article 443(1) of the Civil Code—specifically the legality of windows constructed less than 76 centimetres from a dividing wall. On paper, it looked like a straightforward breach. In spirit, it was far more complex.
The court took a deliberate, reflective step away from mechanical readings. Distances, it argued, are not absolute. They are instruments—meant to secure introspezzjoni (introspection) and personal security. Where no genuine visual intrusion exists, the court reasoned, the mischief the law aims to prevent may not arise. The 76cm requirement is not there for geometry’s sake but to prevent a neighbour from turning into an unwelcome observer.
“Il-Qorti hija tal-fehma… li mhux daqstant id-distanza hemm indikata izda tar-raison d’être li għalih dik id-disposizzjoni trid tasal”—[Zammit McKeon J, p. 17].
This interpretation is, frankly, rare. The prevailing tendency has been one of rigid adherence to fixed numerical standards. The 76cm rule is typically read as a mathematical boundary rather than a functional protection. Zammit McKeon’s reasoning had challenged that trend by grounding the interpretation in the purpose of the law, not its decimal precision.
Notably from the court records, this decision was never appealed. Yet it has not set a strong doctrinal precedent. On the contrary, many subsequent cases seeking similar flexibility have been thrown out on the basis of a strict reading of Article 443(1). Courts have often defaulted to the “bright line” approach, disregarding context in favour of administrability.
But perhaps it’s time to revisit the approach laid out in this now aging judgment. Zammit McKeon’s line of thinking is worth rekindling. It reminds us that civil law is not merely an arithmetic exercise, but a human-centred system aimed at preserving dignity, privacy, and balance between neighbours. When a shaft wall blocks all view, when no window peers into a courtyard or bedroom, is it just to enforce a rule whose spirit has not been breached?
Of course, there are risks in departing from textual clarity. Certainty in property law is sacrosanct. But certainty, too, must be purposeful. Otherwise, we enforce rules for their own sake, rather than for justice.
If we are to move toward a more principled servitude law, one that reflects lived realities and not just engineering plans, it may be worth reopening the door Zammit McKeon tried to keep ajar.
It is not enough to ask how far a window sits from a wall. We must also ask: why does that distance matter?
