Bankruptcy: Anglo‐American Contrasts
| Date | 01 March 1966 |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb01111.x |
| Published date | 01 March 1966 |
BANKRUPTCY
:
ANGLO-AMERICAN
CONTRASTS
I.
PHILOBOPIIICAL
CONTRABTB
THE
institution
of
bankruptcy became
an
established part
of
the
English economic society
in
the first half of the sixteenth century,*
as
a
result of credit dealings between merchants and' traders, which
were the only groups making use
of
credit at this early time.*
It
is not surprising, then, to find that for many years bankruptcy was
nvdable only to,
or
against, those designated
as
merchantsP
As
other elements of the economic society began
to
use credit
in
greater
volume,
it
was
natural for the scope
of
the bankruptcy process
to
be
extended until today in England virtually
all
persons may now
take advantage of
or
be subject to its application, although the
great volume
of
bankruptcies continues to be in the small merchants,
contractors, and traders class.'
If
the English economy changes
so
that the wage-earner class becomes the volume user of credit,
it
may be that the place for the bankruptcy process shouId be re-
evaluated with that in mind.
Thc economic pressure bringing forth the first bankruptcy
legislation was exerted by creditors and naturally then the bank-
ruptcy process was geared to their interest and convenience.5
In
that period of the sixteenth century which fostered the bankruptcy
process there was
no
method by which creditors
as
a
group could
seize and distribute assets
of
a
debtor rateably among themselves.
Each creditor
was
left to his own devices, such as seizure,
execution, and body imprisonment, with the concomitant jostling
for
preferences and inevitable race between crcditors in the collection
of their accounts.
No
ndequate process was available to the creditor
1
See
the Bankruptcy Act
1G42
(84
&
3G
Hen.
3,
c.
4):
Halebury'e
Laws
of
England,
Vol.
2
(3rd ed.,
l0G8),
p.
2Gl;
Jenke,
A
Short History
of
English
Law
(Gth ed.,
l088),
p.
882.
2
"
Where divers and eundr Pereons craftily obtaining into their Hande great
Subetance
of
other Mene
[sio]
Goode, do euddenly
flee
to
Psrte unknown, or
keep their Houses, not minding
to
pay or reatore to an
[sio]
their Creditors,
their Debts and Duties, but at their own Wille and gleaauree coneume the
Subetance obtained
by
Credit
of
other Men, for their
own
Pleoaure and delicate
Living, againet all Reeeon, Equity and good Conecience.
. . ."
Preamble to
the Firet Act in England, Bankruptcy,
1G42
(84
&
36
Hen.
8,
C.
4):
Pollock
and Maitland,
The History
of
English Law beforo Edward
I,
Vole
1
(2nd ed.,
1023),
p.
467.
8
Bankruptcy Act, ch.
19,
3
1,
2
Stat.
10 (1800);
Holdeworth,
A
History
of
English Law,
Vol.
18
(7th ed., rev.
1062),
p.
877.
4
In the
fiecal
year of
1068
there were
4,ODG
Receiving Order6 and
of
them
approximately
09
per cent. were
smell
bUeh08BB8,
not
wege
earners.
See
Board
of
Trade Bankruptcy General Annual Report for the year
1008,
pp.
7
and
8.
5
See outhoritiee cited in note
2
above.
149
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