自己破産後の生活の重要な事項とは？
一つとして、自己破産した場合の生活において重要な事項として、必ずしも自分が支払うことができない債務を支払うことはできないことを理解することが挙げられます。自己破産をした場合、債務を支払うことはできませんので、自分が支払うことができない債務を支払うことを期待しないことが重要です。また、自己破産後の生活において重要な事項として、収入を安定させるために可能な限り多くの収入源を探すことが挙げられます。自己破産後は、収入を安定させるために毎月の家賃や支払いができる仕事などを探しておくことが大切です。また、自己破産後の生活で重要な事項として、自分の状況が良くなったときに債務を支払うための貯金を作っておくことが挙げられます。今後の債務を支払うための資金を準備しておくことは、自己破産後の生活で重要な事項となります。
自己破産後の生活で債務整理で後の対応とは？
債務整理の後の対応として、まずは破産したことを認め債権者に対して全額支払いを求められた場合は、適切な対応を取るように努めましょう。また、破産の後の対応として、借金をしないようにするために、自分の財務状況をよく理解して、今後の財務状態を管理する必要があります。破産後の生活では、支払い義務をまぬがれたことを自覚しましょう。
自己破産後の生活：投資を始める準備をする
すぐにはじめなくてもかまいません。少しづつはじめることをおすすめします。
自己破産後の生活：金融機関や信用組合への対応
自己破産をした金融機関とは決別をした方がいいと考えられます。
自己破産後の生活：収入を増やす方法
自己破産後には少しでも収入が増えるために何をすべきか対策を立てた方が
いいです。しかし、大きく動くのではなくて小さく動くことがとても大切です。
自己破産後の生活：税金の延滞の支払い
個人の自己破産の場合は、税金が延滞されても支払いははじまりません。
自己破産後の生活：個人情報保護法に基づく規定
自己破産をしたという事実は個人情報です。自分が言わなければ誰もわかりません
自己破産後の生活：社会保障制度への申請
生活に困ったら生活保護を申請をおすすめします。
自己破産後の生活：資産管理に関する考え方
相続してない物件があれば相続登記をすますことをおすすめします。
自己破産後の生活のポイント
まずは小さく情報を集めてこれからどうすべきか考えていきましょう。まずは
ボーとして何も考えず過ごすことも重要です。その上でこれからのためになる
資料を集めることをおすすめします。
THE EARLY HISTORY OF BANKRUPTCY LAW [1] Law School, University of Pennsylvania. Louis Edward Levinthal. [1]
[i]THE EARLY HISTORY OF BANKRUPTCY LAW.
The history of the law of bankruptcy should appeal equally to the sociologist, investigating the status of the debtor class throughout the ages; to the political economist, studying the development of the trade and credit; and to the jurist, striving to penetrate the gloom enshrouding the origin and the growth of creditors’ legal rights and remedies. Despite the wide range interest that one would expect the subject to command, one seeks in vain for adequate treatment of the various systems of bankruptcy prevalent at different times and in different places, and of their relationship to one another.
Paul Huvelin’s bibliographical sketch discloses the dearth of historical research int this branch of jurisprudence.we find that general works on the history of law and procedure make scant mention of the history of bankruptcy. Commercial law treatises are likewise disappointing. Individual systems, such as the Roman, the Italian, the French, and the German, have been treated historically with more or less success; and the relation of the German law to some of the other systems has been given with characteristic skill and erudition by Josef Kohler, whose Lerbuch des Konkursrechts, published in 1891, is still the most valuable single contribution to the study of comparative and historical bankruptcy law.
Those who have written on English and American bankruptcy legislation have uniformly considered an historical treatment of the subject as unnecessary, uninteresting, or impossible. In nearly every case they have have bee actuated by one of two motives, either to present to the practitioner the rules of bankruptcy in force at the date of writing, or to attempt to reform the system then prevalent by introducing some new regulations. They have rarely, if ever, been prompted to write of bankruptcy by the desire to add to the knowledge of the past.
A study of the history of bankruptcy that will seek to discover basic principles underlying historic facts, though of doubtful value to the practitioner, will, it is hoped, be kindly received by students of legal science.
BANKRUPTCY AS AN INSTITUTION OF HISTORICAL AND COMPARATIVE JURISPRUDENCE.
It is well nigh impossible to define bankruptcy as an institution of jurisprudence in terms that will apply with equal accuracy to the various systems that have been in force among different peoples and in different periods. In some systems, for instance, tradesmen only are subject to the law; in others all debtors are included. Again, the discharge of the honest insolvent has come to be regarded as the all important feature of some bankruptcy statutes; in others, as satisfactory in the final analysis, the release of the debtor is unknown. It is, therefore, obvious that the definition of bankruptcy usually given by authors treating specifically of one system would not be a correct description of the term as used in all other systems.
All bankruptcy law, however, no matter when or where devised and enacted, has at least two general objects in view. It aims, first to secure an equitable division of the insolvent debtor’s property among all his creditors. In other words, bankruptcy law seeks to protect the creditors, first, from one another and, secondly, from their debtor. A third object, the protection of the honest debtor from his creditors, by means of the discharge, is sought to be attained in some of the systems of bankruptcy, but this is by no means a fundamental feature of the law.
- COLLECTIVE EXECUTION.
The laws that have for their object the protection of the editors from one another seek to prevent any one of the creditors from obtaining more than his proportionate share of the debtor’s assets. A special process of collective execution is devised, a process directed against all of the property of the debtor, resorted to for the common benefit and at the common expense of all the creditors.
There are two necessary antecedents before this special procedure of collective execution need be invoked: (a) insolvency, actual or apparent, of the debtor, and (b) plurality or potential, of the creditors.
- If the debtor has enough assets to meet all his debts, there is no need to seek special regulation to protect the creditors from one another. Each creditor any proceed individually against the debtor’s property without in any way jeopardizing the chances of the other creditors of obtaining satisfaction of their claims, and the principle of priority can safely and properly be allowed to control. While this seems to be the general principle of all systems of execution process, there is one notable exception. In Roman Law, until the Empire , each creditor proceeded against the entire estate of the debtor, whether he be insolvent or not. It is probable, nevertheless, that insolvency usually existed where the Roman missio in bona was granted by the Praetor, for the personal dishonor that was the concomitant of this process would preclude the possibility of a debtor voluntarily permitting the creditors to resort to the missio, unless he were unable to prevent it. In other systems of law, it is well established that in the absence of an allegation of insolvency, each creditor attaches for himself separately.
The principle priority is found to be unjust when the debtor is unable to pay all his creditors in full, or does certain acts which indicate an inability to discharge his obligations in full, or does certain acts which indicate an inability to discharge his obligations in full. The principle of contribution is adopted, and the loss due to insolvency is placed upon all the creditors. The basis of this change in execution process is social and economic; it is essentially the basis of all insurance.
- plurality of Creditors. If a creditor be alone in the field, there is obviously no need of regulations to protect the claimant from himself. A plurality of creditors, actual or potential, therefore, is at the bottom of every bankruptcy process. To this day, some systems require more than one editor to institute bankruptcy proceedings, although a potential plurality is generally considered sufficient.
- FRAUD ON CREDITORS.
The laws that seek to protect the creditors from their debtor by preventing fraud on his part are frequently independent of those seeking to protect the creditors from one another by making an equitable distribution of the debtor’s property. In English law, for instance, fraudulent conveyances were dealt with by Parliament much earlier than the pro rata distribution among creditors was provided for. These are substantive laws, either civil or criminal; they deal with title to property fraudulently transferred, or they define the crimes against trade and credit, and establish penalties therefor. The fraud must be such as to render the debtor either actually or apparently insolvent, for otherwise it cannot react to the detriment of the creditors. It is immaterial, however, whether there be only one creditor or many creditors; in either case, laws must vitiate fraudulent transfers and punish the defrauders.
- MANAGEMENT OF ESTATE.
In order to work out these two general objects of bankruptcy, it is necessary to devise and establish a systematic method of managing the debtor’s estate during the pendency of the process. Some agency must be given control over all the property of the debtor, which is seized summarily and in limine, and must be given authority to prevent and set aside fraudulent transfers of property, and to collect, manage and distribute all the assets. The management of the estate is differently regulated in different systems. In China, for instance, the control of the estate is entirely in the hands of the creditors themselves; they attach, liquidate and distribute all the debtor’s possessions within reach without the intervention of any official authority. In Medieval Jewish law, on the other hand, duly constituted officials administered the estate, without any intervention on the part of the creditors. The great volume of bankruptcy legislation in England is due to the conflict between, and the alternate predominance of one or the other of, these two theories as to the management of the bankrupt estate,―private management or management by the creditors, and diametrically opposed to it, public management or management by the state.
In our inquiry into the early history of bankruptcy, emphasis will be laid upon the three topics cursorily outlined: the origin and development of collective execution and distribution; the prevention of the fraudulent conduct of the debtor; and the various methods of controlling the bankrupt and of managing his estate.
DEBTOR AND CREDITOR IN PRIMITIVE SOCIETY.
In every primitive society there are no laws preventing fraud of debtors or regulating the distribution of a debtor’s estate among his several creditors, for the reason that, generally speaking, debtors and creditors are unknown in the early stages of social evolution. Credit is an institution that lives by virtue of man’s confidence in is fellow-man’s good faith, and good faith and the primitive man are strangers. Graeca fides is typical of the condition prevalent among all primitive peoples. It is natural, therefor that under such circumstances payment should have been uniformly contemporaneous with the delivery of goods, that credit sales and indebtedness should have been practically unknown.
By force of economic necessity, suspension of payment was gradually introduced; but for a very long time, indebtedness was regarded as an anomaly, as a special privilege, as a perversion of the traditional and customary method of dealing. A contact executed by only one of the contracting parties was regarded as an incomplete conveyance. The creditor who had performed his part of the transaction had little cause to fear default on his debtor’s part. Public opinion provided two sanctions, each of them extremely powerful, by which the debtor was compelled to perform his part of the contract, which the ancients thought ought never to have been postponed. One sanction was religious in character; the other was the peculiarly severe form of the primitive procedure of execution.
Typical illustrations of the religious sanction are the practice of “sitting d’harna,” the usual procedure throughout India of old and still in vogue in Nepaul, and the similar practice of “fasting on” a person resorted to in ancient Ireland. In both, the creditor placed himself before the debtor;s doorway, there to remain until the debt was paid. The expected payment was seldom delayed, for public opinion would have punished instantly and severely the debtor who allowed his creditor to become exhausted or to die of starvation before his door. In Egypt, another species of spiritual sanction compelled payment by the debtor. From the earliest time, it seems to have been almost a universal custom for the debtor to pledge the body of his nearest deceased relative, specially that of his father. In case of default of payment, the creditor was given the right to remove the mummy, and the tomb was closed against any interment by the debtor. The effect of such a pledge was evidently moral and spiritual, being enforced rather by the sentiment of the community than by the law.
A more direct means of compelling payment in ancient days was the extremely severe treatment accorded defaulting debtors, whether fraudulent or honest. In Hindu law, for instance, execution in civil cases was a matter simply of self-help. The creditor could seize the person of his debtor and compel him to labor for him. Actual violence might also be resorted to by the creditor; he could kill or maim the debtor, confine his wife, sons or cattle, or besiege him in his home. This is typical or primitive law generally.
We find in the code of Hammurabi that the insolvent debtor was regularly sold into slavery. It also frequently happened that the debtor’s kinsmen would be sold into bondage in order to pay off his obligations. Where this theory of joint liability among the members of families or of the social group obtained, bankruptcy legislation was not needed, for all the members of the group would usually be able to liquidate the debt in way or another.
Whether slavery fro simple debt was known among the ancient Hebrews is mooted. On the one hand, a number of Biblical references are cried to prove that slavery for debt did not exist. On the other hand, it is probable that at least from the time when the Israelites came in contact with Egypt, personal servitude for debt was unknown. In the land of pharaohs, from the days of Bocchoris certainly (772-729 B.C.), and perhaps much earlier, it was established that in the case of debt, the debtor’s property, and not his person, might be attached. The Egyptians regarded the claim of the state to the debtor’s person as superior to that of the creditor, for the state might at any time require the debtor’s service, in peace as an official or laborer, in war as a soldier. Solon, we are told, was influenced by this Egyptian law, when he put an end to the traditional Athenian practice of enslaving freemen who were unable to pay their debts.
In the law of Rome, as set forth in the Twelve Tables (B.C. 451-450), the borrower was said to be nexus to his creditor, I,e., his own person was pledged for the repayment of the loan. If the borrower failed to fulfill his obligation, the creditor might arrest him by manus injectio, by the “laying on of hands,”a mode of execution which proceeded directly and with inexorable rigor against the person of the debtor. After having thrice publicly invited some one to come forward and pay the debt, the creditor might, in default of any one appearing, and after the lapse of sixty days, regard the debtor as his slave, and might either kill him or sell him into a foreign country. The old proverb, “He who cannot pay with his purse pays with his skin,” was literally applied in Roman law. Not only freedom and honor, but life itself was at mercy of the creditor. The earliest provision dealing with collective execution is found in the Twelve Tables; it is there decreed that if several creditors have claims upon the same debtor, they might cut the debtor’s body into pieces.
So long as execution was directed against the person, rather than the property, of the debtor, and so long as the religious and primitive sanctions prevailed, there was obviously little need for the introduction of bankruptcy as a distinct system of jurisprudence.
TRANSITION FROM EXECUTION AGAINST THE PERSON TO EXECUTION AGAINST PROPERTY.
In the course of time, execution for debt came to be directed against the property of the debtor rather than his person. It is hardly likely that his transition indicates that the religious sanction had lost its pristine potency or that execution against the person had come to be regarded as barbaric. The change from the one form of execution to the other, slow and gradual as it was, is an instance of the general evolution of legal process from the stage were retaliation is the end in view to the stage where compensation is the chief desideratum.
In most systems of jurisprudence, the development of proprietary execution was a natural one. The ancient Jewish and Germanic notion, for instance, of the execution against the person was that the body of the debtor was a pledge or security for the payment of the debt. It is perfectly natural that in course of time the Jewish and Germanic people should come to look upon each portion of the debtor’s property as a pledge or security for the debt. Here the transition was from execution against the person to execution against a particular portion of the debtor’s property seized by an individual creditor for the benefit of himself alone.
In the Roman law we can very clearly perceive the evolution of proprietary execution step by step, but we find that underlying this evolution there is an abstract and rather vague notion of execution as conceived by the Roman jurisconsults. They regarded the person of the debtor not merely as a pledge for the payment of the debt: “ it is the person, they said, who is obligated, and it is the person to whom the creditor must look to be paid; there is no execution except personal execution, and it is for the debtor to say whether he will save himself by sacrificing his property. To them, the seizure of the debtor’s body, which was primarily responsible for the debt, was the seizure of his total legal personality. The transition in Roman procedure was from execution against the person to execution against the debtor’s estate in its entirety, to the sale of what was known as his universal succession, for the benefit as of many creditors as cared to avail themselves thereof.
Thus, there were evolved two systems of propriety execution, and collective or entire proprietary execution.
INDIVIDUAL PROPRIETARY EXECUTION
Where execution is directed by individual creditors against specific portions of the debtor’s estate, the problem that arises when there are several creditors and an estate that is insolvent was solved, at first, by having the creditors paid in a definite and specified order. In Jewish law, nearly all creditors were paid in order of time in which their claims were created, each Shtar, or bond attested by two witnesses, operating from its date as a mortgage lien on the debtor’s property. In the Germanic system, the creditors were rank according to the order of time in which their executions were levied, while in some other systems of law the ranking of the creditors is largely determined by by the nature of the subject-matter of their claims.
Where there are several creditors of the same rank, the most natural rule would be to divide the property pro rata among all the creditors. This is the general practice. Jewish law, however, evolved an anomalous plan of distribution. Where their were several creditors, who had no Shtaroth bearing the same date, the estate of the debtor was divided not pro rata, but equally, it being, of course, provided that no creditor should receive more than the amount of his claim. Thus, if there were three creditors, A with a claim for $300, B for $200, and C for $100, and if the debtor’s estate ere worth only $300, A, B, and C would each receive $100 each. If the estate amounted to $500, A, B, and C would first each receive $100, and then A and B would receive an additional $100 each. In this way, a higher percentage of the smaller, as compared with the larger, debts were paid in full. The source of this peculiar method of distribution is found in the Talmud, where the Rabbis decided that if a man dies leaving an estate worth only $300, in all, and leaves surviving him three widows, on with a dower claim of $300, another of $200, and the third of $100, the widows should share equally, and not pro rata, in the estate of their common spouse.
Where, as in Jewish law, the individual creditor had general mortgage liens depending upon the date of their obligations, thanks to which they escaped any principle of contribution, they had little interest in organizing a real concursus creditorum. Thus, it was not until about the sixteenth century of the Common Era that the Jews established a bankruptcy process, and then only for the Jews dwelling in Poland. For a similar reason, in French law, from the very beginning, non-tradesmen were not subject to bankruptcy process and contribution. Creditors of persons not engaged in trade usually had notarial deeds, and thus had alien on the debtor;s property. Where, on the other hand, the principle of priority of execution prevailed, which, in the case of the insolvent debtor, made payment the prizes of a race of diligence and fostered fraud and collusion, a system of bankruptcy became a pressing necessity. Selfish individualism which impelled each creditor to anticipate and outwit his fellows, and to rescue whatever he could for himself alone, gave way, by force of an enlightened sense of justice, to co-operation and contribution among all the creditors.
GENERAL PROPRIETARY EXECUTION
The process of general execution against the debtor’s property introduced into Roman law by Rutilius was called bonorum emptio or venditio. Whether the debtor was solvent or insolvent, whether there were many creditors or there was but one creditor, the proceeding was the same, leading to a sale of the entire estate of the debtor for the benefit of his creditors. The bonorum venditio was only granted when the debtor had committed one of several acts. These acts, which might be termed acts of bankruptcy, were (a) absconding (latitans) or hiding from creditors, (b) leaving a judgment unsatisfied for thirty days, and © admitting, without discharging, a debt and taking no steps to pay it.
The creditor or creditors were granted by the Praetor a missio in possessionim, equivalent to the English “receiving order.” In other words, they were put into possession of the debtor’s estate. Then, at fixed intervals, followed three decrees: the first publicly advertised the sale and gave notice to the non-petitioning creditors to put in their claims; the second authorized the creditors to choose from among themselves a magister, equivalent to our trustee, to superintend the sale; and the last enabled them to publish the conditions under which the sale would take place. After a third interval, the estate or universitas juris, of the debtor was put up to auction, and knocked down to the highest bidder (bonorum emptor), i.e., to the person who offered the creditors the highest percentage on their claims, the creditors being paid pro rata.
It is of interest to note that a somewhat analogous arrangement can be seen in the Oceanic system of the Undang-Undang, where the principal creditors pays the other creditors in proportion to their claims and keeps the whole of the debtor’s person as a pledge. So also in Attic law, the debtor gave up his entire estate, which was probably auctioned off en bloc.
To revert to our discussion of the Roman execution process, we find that the bonorum distractio. Under one of the earlier emperors, a senatus consultum was passed, by which it was provided that where a bankrupt was of senatorial rank, and the creditors assented, instead of the estate being sold en bloc (bonorum venditio), a curator bonorum should be appointed by the magistrate for the purpose of disposing of the assets piecemeal and in lots, and paying the creditors pro rata out of the proceeds. Probably from this senatus consultum came the bonorum distractio, the ordinary execution process in Justinian’s time. The creditors or some of them, applied to the magistrate for a missio in bona, as in the venditio, but the estate was not sold by a magister chosen by the creditors, but by a curator, chosen by the Praetor, whose duty it was to dispose of, not the universal succession of the debtor, but the several objects of which his estate was composed,and to pay the creditors pro rata out of the proceeds.
The venditio and the distractio, and not the cesio bonorum, constituted the Roman system of bankruptcy process, a system that is in fact the origin and fountain-head of all bankruptcy systems.
A bankruptcy process of more limited application in Roman law was what ws known as the actio iributoria. Where the master gave his slave a peculium in order that he might carry on a mercantile business with it, and the venture was a failure, then the commercial creditors of the slave might institute the actio tributoria against the slave’s master. The creditors demanded to have the merx peculiaris (I. e., the property invested in the business) distributed among themselves in proportion to their respective claims. The division was made by the dominus, who was treated as an ordinary creditor,and therefore could not deduct debts owing to himself in full, though he had the privilege of paying all his own claims pro rata, whether arising our of the business or not.
The actio tributoria lay against the dominus to compel the distribution or to bring it under judicial review, if any creditor was dissatisfied with it. If the slave had his peculium engaged in different business ventures, they were kept apart, the creditors in each being entitled to stisfaction only out of the capital embarked in that one upon which their debt arose. We have here perhaps the earliest instance of bankruptcy confined to tradesmen and trade debts.
PREVENTION OF FRAUD IN ANCIENT LAW.
In ancient systems of law, insolvency per se was looked upon as something irregular and fraudulent, whether the debtor was actually honest or dishonest. Gradually public opinion came to discriminate between the unfortunate insolvent and the felonious bankrupt. In the code of Hammurabi, for instance, the life and the freedom of the debtor made insolvent by misfortune were protected from the creditors, and in the Islamitic law we find that the honest but unfortunate debtor was allowed a definite amount as an exemption.
The Roman clung tenaciously to the conception that infamy attached to the debtor whose estate had been sold to the bonorum emptor. In consequences of a lex Julia, probably not promulgated before Augustus’s time, the debtor whose insolvency was not due to his own fault was permitted to make a cessio bonorum. This was more in nature of a voluntary composition with creditors. By adopting this course, the debtor escaped liability to arrest and imprisonment, which bankrupts proper incurred if the missio in bona produced no results. More over, the honest debtor who made cessio did not become infamis, and he was allowed to retain so much of his after acquired property as was necessary for his subsistence (benficium competentiae).
The cessio, however, was a very tardy and complicated sort of procedure. Sequestration to an assignee (curator) in favor of creditors, the curator being chosen by consent between the insolvent and his creditors, was one mood of settlement frequently resorted to in the case of honest insolvency. The debtor might also apply to the emperor for an order requiring the creditors to choose by a vote whether they would proceed at once to a surrender and sale of the estate, taking their chances as to how far the available assets would go, or whether they would allow their debtor a period not exceeding five years in which to pay.
These alternative processes were available to the innocent insolvent only. In this way, Roman law indirectly punished the fraudulent debtor, for he could not have the privilege granted to the honest insolvent.
Religious fears and scruples were often employed as preventives of fraud. Excommunication was the means resorted to by the Assyrians thousands of years before the Common era.
In Jewish law, the execution process commenced with a writ issued by the court, which was in the nature of a ban of excommunication against the debtor, and the creditors also had the right to demand the proclamation of the ban of excommunication against all who knew and did not inform them of any fraudulent conduct on the part of the debtor.
In Roman law, aside form these more or less indirect means of encouraging honesty and penalizing fraud, elaborate provisions for vitiating fraudulent transfers of property belonging to insolvent debtors were framed. Any act or forbearance by which a debtor diminished the amount of his property divisible among his creditors was held to be in fraud of creditors. If the transfer was without consideration, the act was rescinded, even if the grantee where wholly innocent. If the grantee had notice of the fraud, the transfer was rescinded, even if it were with valuable consideration. The creditors had, as against fraudulent alienation by their debtor, including the wrongful payment of one or some of them in full when he was aware of his insolvency, the following remedies: (1) an actio Pauliana in personam; (2) an interdictum fraudatorium; (3) an actio in factum, available against a bona fide alienee; (4) the integrum restituto, with a view to an action in rem. As one of the most lucid and authoritative writers on Roman law says: “The relationship between these remedies, and the precise purpose for which they were respectively employed, are so variously represented by the commentator that it is impossible to go further into the question.”
MANAGEMENT OF THE DEBTOR’S ESTATE.
While self-help is no doubt the very earliest method of execution, in some communities the conception of self-help does not cling so tenaciously as it does in others.
In Roman law, self-help and private redress prevailed because of the force of tradition. The legis actio, per manus injectionim, for instance, is historically a form of private force. Indeed, the ancient civil procedure of most people is nothing more than a form of self-help sanctioned by the law.
It was not until the days of Marcus Aurelius that self-help by creditors was rendered penal among the Romans.
The effect of the praetorian mission in bona was to confer on the creditors who obtained it a private right to sell the entire estate of the debtor, and the magister was one of the creditors whom his co-creditors elected as their “master” to exercise this right on their behalf. If after the election of the magister, but before the sale had been actually carried out, another creditor also obtained a missio in bona, this other creditor, who of course had taken no part in electing the magister, rank independently side by side with the magister, and had the same rights. The magister was merely the agent of the particular creditors who had elected him; he was in no sense a public officer entrusted by the Praetor with the conduct of the bankrupt’s affairs.
Under the distraction bonorum, the case was different. Here, the Praetor committed the management of the debtor’s estate to a curator, whose duty it was to dispose of the estate in separate lots and pay the creditors pro rat out of the proceeds. Under this system, the bankrupt was not dispossessed of his whole property. The creditors were paid not by the bonorum emptor, but by the debtor himself, through the medium of the curator.
The old magister was never anything more than a creditor acting exclusively in the selfish interests of himself and his electors, whereas the curator, appointed by the Praetor, represented to a limited extent the principle of the public interest which requires that bankruptcy proceedings shall be conducted on a uniform plan and that all the creditors shall obtain an equitable satisfaction of their claims. As Degenkolb points out, however, the curator never attained the position of public officer charged with the conduct of a state-regulated procedure in bankruptcy.
In very early Jewish law, on the other hand, we find restrictions on the right of self-help, and in the rabbinical law we find scarcely any vestige of it, execution being public and official.
BANKRUPTCY IN THE MIDDLE AGES.
In Europe during the early Middle Ages we find the laws relating to the relation of debtor and creditor to have been peculiarly similar to those of the most primitive period. Execution directed against the person of the debtor became prevalent once more; credit trade again became unusual, and the religious sanctions wielded their pristine force and potency.
EARLY ITALIAN LAW.
In Italy, however, the institutions that had their origin in Roman jurisprudence, among them the regulations governing insolvency, never entirely disappeared. As Savigny, in his “History of Roman Law in the Middle Ages,” points out, the Italians, even when subject to barbarian and to Langobard rule, did not lose all of their ancient rights, the Roman Commune was never completely destroyed, and the revival of the Italian republics and of Roman law was merely a renewal of old institutions and laws which had, in reality, enjoyed an uninterrupted continuity.
It is in the Italian cities that the old Roman system of private liquidation of the estates of insolvents is revived. Elaborate regulations concerning bankruptcy can be traced as far back as I3I3, and a compendious text-book on the Italian system was written in I553 by Benevenuto Straccha, a lawyer of Ancona.
Several important features were introduced by the Italians, among the most important being the principle that the mere stopping of payment constitutes an act of bankruptcy. The doctrine that suspension of payment by the debtor renders him subject to bankruptcy process was adopted in all of the Italian cities, and has become prevalent in many modern European systems.
Another important innovation of the Italian system is the principle that the proximus decoctioni is equivalent to the decoctus. The bankruptcy was dated back for a certain length of time, and all acts done by the debtor while on the verge of insolvency were rendered void or voidable. Our own four months’ period prior to bankruptcy is a direct descendant of this Italian principle.
As to the management and control of the bankrupt’s estate, in nearly all of the Italian cities, the creditors themselves elected a magistratus, who appointed a curator, the latter having the management of the estate and representing the bankrupt, and the appointment of crediotrs’committeess of three or four, vested with full powers, was not unusual. The creditors sua auctoritate took possession of the bankrupt’s person and property; liquidation was private, not public.
Not only did the creditors, as distinguished from the state, control the estate, but the majority of the creditors could control the minority. We find numerous provisions that the major pars decides, the majority being either in number or interest. The concordat, or composition, in which the majority prevailed over the minority of the creditors, was peculiarly an Italian institution. The majority might compel the minority to surrender their debts and to replace the debtor in charge of his affairs. In Genoa, a majority of three-fifths in voluntary, and seven-eights in involuntary bankruptcy was required. The composition had to be publicly registered, so that the interests of all creditors would be safe guarded. Every encouragement was given to the debtor and creditors to agree upon a composition,―no distribution was to be made for eight months, in order to afford the creditors an opportunity to reach an agreement.
The statutes of the various cities did not all agree as to whether the bankrupt had to be a tradesman, and there were also different provisions as to the number of creditors required to institute the proceedings and as to the mode of proving the existence of the debts and the fact of non-payment. Some of the cities allowed bankruptcy only when the debts amounted to a certain sum, a limitation apparently unknown in ancient law.
The Italian bankrupt was usually treated very severely. Faliti stunt fraudatores was thye accepted doctrine. Insulting and reviling procedures were ordinary, such as carrying a biretum album or a beretta virida. Occasionally the bankrupt who had absconded was given a safe conduct if he were needed back, but more frequently the insolvent debtor was tortured in order to force him to expose his property. These statutes were not penal in their nature; they were simply inquisitorial.
A creditor who made a false claim was severely punished. He who claimed more than he was entitled to receive forfeited his entire claim, and persons who aided the bankrupt in concealing assests were frequently penalized by being compelled to pay in full the bankrupt’s debts.
EARLY GERMAN LAW.
In German law, the principle of priority was very strongly intrenched from earliest times. In some districts, indeed, it was the law as late as the seventeenth century that the creditor who seized an absconding debtor’s property could satisfy his own claim regardless of the claims of the other creditors.
The first signs of the weakening of the principle of priority are noticeable in the Hanseatic Towns, Lubeck, Hamburg and Bremen. As Kohler points out, the introduction of equality among creditors into German law was due to Italian influence, a fact indicated by the many features common to both systems.
EARLY FRENCH LAW.
In France, the Germanic principle of priority was introduced at an early date. In the old Coitumes of Alais, in then first half of the thirteenth century, we find: “totz les pretz, per rons dels deutes, vengutz em paga als crezedors,” which in Olims translation is interpreted to mean that the creditors were satisfied in the order of the date the debts were contracted. The Germanic theory that the first execution creditor should precede all subsequent creditors became firmly embedded in comparatively early French law. An exception was recognized, however, in the case of insolvency as early as fourteenth century, an din the Coutumes of Paris of 1510, it is expressively provided that en matiere de deconfiture chacun creancier vient a contribution.
In Lyon,the foremost trade center of France, which in the sixteenth century experienced a great influx of Italians, the Ordinance of Francis I, dated October 10, 1537, is of special interest. Fundamentally the law of Lyon was the same as that of Italy. The creditors met, elected one or more deputés were like our modern trustees and receivers, and the procurator like our referee. The Declaration of December 23, 1699, provided that in the case of a moratorium, the creditors might appoint directeurs or synndics to supervise the debtor’s dealings.
The innocent bankrupt could negotiate with his creditors , and the composition had to be homologated by the court if it had the consent of the majority of the creditors. The debtor, however, had to make full disclosure of all his possessions and business transactions “à peyne d’être pendu et étranglé par la gorge.”
EARLY DUTCH LAW.
Handvesten given by the Dutch counts to their towns between 1245 and 1412 provided that if the debtor was unable to pay his creditors he should be handed over to the latter until such time as the debt was paid. It was not until about the beginning of the sixteenth century that bankruptcy was introduced into Holland.
The first legislation in Holland dealing specifically with bankruptcy was enacted in 1531 by Charles V of Spain; and the Perpetual Edict of the 4th of October, 1540, one of the great consolidation acts of the Spanish King, stated in its preamble that it was promulgated in order to check the heresy that was creeping into the provinces, to remedy the expense connected with law suits, and to provide for a pure administration of justice, which would deal equally with rich and poor. The preamble went on to point out the great impulse trade had received, and that, in order to guard and foster that trade, debtors must be compelled to pay their debts and must be prevented from evading their liabilities by flight. The ordinance then provided that all persons who absented themselves from their ordinary residences with the object of defrauding their creditors were to be regarded as common thieves, and if caught might be summarily dealt with and publicly hanged. Persons who aided and abetted the fugitive were to be held liable for the payment of all the debts, and unless they paid in full they might be imprisoned or otherwise be punished. Article 3 declared all contracts with fugitive bankrupts, and all sales or alienations made by them, void if prejudicial to creditors. Those who left the country in order to avoid paying their debts were to be punished even if they paid their creditors in full, and even if the creditors all agreed to grant the offenders freedom from punishment. This is most significant, indicating that bankruptcy was not regarded as a private matter of concern to the creditors exclusively, but as something of vital importance to the entire community, a matter in which the public interest transcended the interest of the creditors.
EARLY SPANISH LAW.
The principle of self-help of creditors and of private control of the debtor and his property found no favor in Spain. The creditors derived their rights from the tribunal of justice. Into the hands of the law the debtor’s estate had to be placed, and the judges were required to see to its disposition and to the distribution of the proceeds. Judicial liquidation of the bankrupt’s estate alone was tolerated. Whatever was taken from the debtor’s estate by the self-help of the creditors had to be returned.
The Ley de Siete Partidas borroewd the cessio bonorum from Roman law, but the tribunal of justice had the sole and exclusive control and management of the debtor’s estate. If a person became insolvent, he was imprisoned until he made a cessio. As a corollary of the decree that a cessio could be coerced through imprisonment, it became universally accepted that until the bankrupt’s case was all cleared up, the person who made a cessio should languish in jail. This was legally sanctioned in the famous Ley of July 18, 1590.
To evade the very severe provisions of this law, a new institution was developed in Spain which, through Salgado de Samoza in his Labyrinthus Creditorum, published about 1663, influenced greatly the bankruptcy systems of all countries. Under the provisions of this Spanish system, the debtor placed his estate into the custody of the judicial tribunal for the benefit of his creditors. The tribunal appointed an administrator. It is true that the approval of a majority of the creditors was required to validate the administrator’s appointment, but it is equally true that the official was an organ of the law and was absolutely powerless, except in so far as the court expressly granted him the authority to act. The debtor retained the title to his property; he still had the dominium. The creditors had what was vaguely and indefinitely called a “jus et interesse considerabile.” the public tribunal practically had the sole control over the debtor and his estate.
MEDIEVAL JEWISH LAW.
Semitic law was perhaps the original source from which the Spanish system derived and adopted public and administrative liquidation, its most striking characteristic. That Moorish and Jewish laws and customs affected Spanish jurisprudence is not surprising, in view of the centuries of Moorish domination and the unusual personal influence wielded by Jews in medieval Spain.
In Morocco to the present day, the liquidation of estate of an insolvent debtor, the proof of claims, and the final distribution are all affected through administrative authority. So, too, in the ancient Semitic system of the Hanefites, the Kadhi attached the insolvent’s estate on the petition of the creditors.
In Jewish law, public and judicial liquidation prevailed. All execution commenced with the Petihah, which was a writ issued by the Beth din, or judicial tribunal, on petition of a creditor.
This writ was in the nature of a ban of excommunication on the debtor for ninety days. The debtor could avoid the effect of the ban and the other proceedings by coming forward and surrendering all his property, taking for himself his exemptions. In order to make this assignment or cessio, he had to take a rabbinical oath that he had no other property, that he had made no fraudulent transfers, and that he would apply his future earnings, beyond what was necessary for his simple needs, to the payment of his debts. It is interesting to note in this connection the similarity of the Spanish customary law to the Jewish law. According to the costumbres of Tortosa (thirteenth century),the debtor who desired to make a cessio had to present himself before a tribunal , submit his sworn declaration of insolvency, and swear that of his future possessions he would satisfy all his creditors. Jewish law provided further that if there were several creditors,it was not necessary to make a separate oath for each; one general oath sufficed for all, ―an indication that something partaking of the nature of a concursus creditorum was known to the Jews of the Middel Ages.
A rather elaborate system of bankruptcy regulations was enacted and promulgated by the Jewish Council of the Four Lands, in Poland. The following are a few of its provisions:
“(I) As soon as it shall become known that one has become a Boreach (bankrupt, called in Germany a Baal Pletah, the Beth Din (rabbinical court) of his locality shall immediately give public notice to all persons not to accept any portion of the bankrupt’s estate. If anything should be transferred from the estate, the transfer is a nullity, and the property must be returned, so that all creditors, no matter in which city or country they may reside, may share equally, in accordance with the established law. The estate shall in the meantime remain in the custody of the Beth din until the next fair shall be held.
“(2) As soon as it shall become known that one has become a Boreach, the Elders of the community shall immediately take over all his possessions; shall compel him and his wife to take oath that he has no other property and that they have not concealed anything; shall, within thirty days, turn over to the Neeman (‘trustee’) all of the debtor’s personal or real estate , and also his synagogue pew; shall record in the official archives the transfer of the title to the Neeman; and the Neeman shall dispose of the entire estate within six months after the bankruptcy and turn over the proceeds to the creditors. . . .
“(4) If within three months after the marriage of the debtor’;s daughter, the debtor become bankrupt, the son-law must return for the benefit of the creditors the dowry he had received. If the bankruptcy occur a year after the marriage, the creditors shall not get any portion of the dowry.
“(5) All wearing apparel furnished by the bankrupt for his wife during the entire year prior to his bankruptcy must be disposed of for the benefit of the creditors. . . . .
“(7) When the ban of excommunication is pronounced in the synagogue against the bankrupt, his family shall also be present.
“(8) He who receives property from the bankrupt at a fair held in the bankrupt’s city, within three months prior to the bankruptcy, must return it to the creditors, but he who receives the property at a fair held in the city in which the bankrupt does not reside, even though bankruptcy follows within three months thereafter, need not return it.
“(16) No one should have any dealings with a bankrupt after his bankruptcy; he who does deal with the bankrupt can have no legal redress as to such transactions.”
Louis Edward Levinthal.
Law School, University of Pennsylvania.
[i] Law School, University of Pennsylvania. Louis Edward Levinthal. [i]THE EARLY HISTORY OF BANKRUPTCY LAW
