<p>The most recent addition to Duncker & Humblot's series, Comparative Studies in Continental and Anglo-American Legal History, examines an age old and widely recognised problem: attempts by insolvent debtors to move their property beyond the reach of creditors. Civilian systems’ responses draw on a common heritage in the <italic>ius commune</italic> institution generally referred to as the <italic>actio Pauliana</italic>. While historians of English law acknowledge heavy continental influence on English insolvency law in general, it has been contended that England went its own way on this matter. The accuracy of this contention depends on the relationship between the rules on fraudulent conveyances and preferences and continental legal thinking. Dr Willems’ examination of the development of English law on this topic makes a significant contribution to understanding of this topic.</p>
<p>After briefly framing the subject, the author gives a twenty-five page summary of the Roman law on the topic. Although this part is primarily intended to lay the groundwork for the account of English law, there is serious engagement with modern Romanist literature, the most important of the texts in the <italic>Corpus Iuris</italic> on the topic and Theophilus’ Greek paraphrase of the Institutes. The account is presented as addressing the Justinianic law, and this was clearly the most significant in its influence on <italic>ius commune</italic> developments. However, the author cannot resist some engagement with the major Romanist debates in this area: the origin of the term <italic>actio Pauliana</italic> and whether it stems from the classical law; the relationship between the two revocatory mechanisms, which appear to have been combined by the compilers. More pertinently for the rest of the study, consideration is given to the prerequisites for recovery, whether the remedy was real or personal and what that meant and the consequences of success, particularly in regard to fruits. The account will not surprise those familiar with the field but gives an excellent summary.</p>
<p>One aspect of the discussion of Roman law does deserve further consideration. Willems sees the fact that the <italic>actio Pauliana</italic> was embedded in a broader insolvency procedure as central to its nature. The emphasis on collective procedure also means that the writer tends to cast the <italic>actio Pauliana</italic> as a rule which protected the principle of <italic>par condicio creditorum</italic>, rather than one which prevents frustration of creditors’ rights. Thus he draws a sharp contrast with the conduct-based approach of the...</p>
