The word bankruptcy is derived from Italian banca rotta, meaning “broken bench”, which may stem from a custom of breaking a moneychanger’s bench or counter to signify his insolvency, or which may be only a figure of speech. In the modern sense, it refers to the inability of a debtor to either pay all of his debts generally (insolvency) or inability to pay debts as they come due (cash flow insolvency). It does not necessarily means creditors will receive nothing, but often does in the case of individual bankruptcies. In the case of business bankruptcies, it generally involves distributions based upon the liquidation value of the business (liquidation bankruptcy) or the continued operating cash flow of the business (reorganization).
Cavemen and the point of business bankruptcy…
Bankruptcy did not exist in Ancient Greece, . If a man owed and he could not pay, he and his wife, children or servants were forced into “debt slavery”, until the creditor recouped losses via their physical labour. Many city-states in ancient Greece limited debt slavery to a period of five years and debt slaves had protection of life and limb, which regular slaves did not enjoy. However, servants of the debtor could be retained beyond that deadline by the creditor and were often forced to serve their new lord for a lifetime, usually under significantly harsher conditions. In the Torah, or Old Testament, every seventh year is decreed by Mosaic Law as a Sabbatical year wherein the release of all debts that are owed by members of the community is mandated, but not of “foreigners”. The seventh Sabbatical year, or forty-ninth year, is then followed by another Sabbatical year known as the Year of Jubilee wherein the release of all debts is mandated, for fellow community members and foreigners alike, and the release of all debt-slaves is also mandated. The Year of Jubilee is announced in advance on the Day of Atonement, or the tenth day of the seventh Biblical month, in the forty-ninth year by the blowing of trumpets throughout the land of Israel. In Islamic teaching, according to the Quran, an insolvent person was deemed to be allowed time to be able to pay out his debt. This is recorded in the Quran’s second chapter (Sura Al-Baqara), Verse 280, which notes: “And if someone is in hardship, then let there be postponement until a time of ease. But if you give from your right as charity, then it is better for you, if you only knew.”
Bankruptcy is also documented in East Asia. According to al-Maqrizi, the Yassa of Genghis Khan contained a provision that mandated the death penalty for anyone who became bankrupt three times. Philip II of Spain had to declare four state bankruptcies in 1557, 1560, 1575 and 1596. Spain became the first sovereign nation in history to declare bankruptcy.
Some form of law for bankrupts can be seen tracing back to Ancient Babylon. In England, the first recognised piece of legislation was the Statute of Bankrupts 1542. Bankrupts were seen as crooks, and the Act stated its aim to prevent “crafty debtors” escaping the realm. A more humane approach was developed in the Bankrupts Act 1705. The Lord Chancellor was given power to discharge bankrupts, once disclosure of all assets and various procedures had been fulfilled. In Fowler v Padget Lord Kenyon reasserted the old sentiment that “Bankruptcy is considered a crime and a bankrupt in the old laws is called an offender.” The bankrupt was seen bonded to his creditors. Under the Insolvent Debtors (England) Act 1813, debtors could request release after 14 days in jail by taking an oath that their assets did not exceed £20, but if any of their creditors objected, they had to stay inside. Attitudes were changing, however, and the Bankrupts (England) Act 1825 allowed people to start proceedings for their own bankruptcy, in agreement with creditors. Before only creditors could start the proceedings. Bankruptcy proceedings agreed between creditors and debtor also occurred when a trader filed a declaration of insolvency in the office of the Chancellor’s Secretary of Bankrupts, which was then advertised. The advertised declaration supported a commission in bankruptcy to be issued. A law was thereafter enacted, which declared that no commission grounded on this act of bankruptcy was to be “deemed invalid by reason of such declaration having been concerted or agreed upon between the bankrupt and any creditor or other person.” (Bankrupts (England) Act 1825, sections VI and VII). Voluntary bankruptcy was not authorized until 1849. (Bankruptcy Law Consolidation Act 1849, section 93 (1849)). In the middle of the 19th century, attitudes towards corporations were also quickly changing. Since the South Sea Bubble disaster, companies were viewed as inefficient and dangerous. But with the industrial revolution in full swing that changed. The Joint Stock Companies Act 1844allowed people to create companies without permission through a royal charter. Companies had “separate legal personality”, the ability to sue and be sued, and served as an easy mechanism for raising capital through the purchase of shares (an equitable title) in the company’s capital. The Act’s corollary, to bring the existence of these “legal persons” to an end was the Joint Stock Companies Winding-Up Act 1844. The Limited Liability Act 1855 produced a further innovation. Before, if a corporation had gone broke, the people that lent it money (creditors) could sue all the shareholders to pay off the company’s debts. But the 1855 Act said that shareholders’ liability would be limited to the amount they had paid in their shares. So if you had invested £100 in a company, but now the company owed millions of pounds, the creditors could not come after you for the debts. You would lose £100 and no more. Your liability to pay debts was limited to the value of your shares. The Joint Stock Companies Act 1856 consolidated the companies legislation in one, and the modern law of corporate insolvency was born. Finally, the Bankruptcy Act 1869 was passed allowing all people, rather than just traders to file for bankruptcy.
- Debtors’ prison, Fleet Prison, Marshalsea Prison, King’s Bench Prison, Debtors’ Act 1869
- Charles Dickens, Hard Times, Mr Micawber in David Copperfield
A failure of a nation to meet bond repayments has been seen on many occasions. Philip II of Spain had to declare four state bankruptcies in 1557, 1560, 1575 and 1596. According to Kenneth S. Rogoff, “Although the development of international capital markets was quite limited prior to 1800, we nevertheless catalog the numerous defaults of France, Portugal, Prussia, Spain, and the early Italian city-states. At the edge of Europe, Egypt, Russia, and Turkey have histories of chronic default as well.”
Modern law and debt restructuring
The principal focus of modern insolvency legislation and business debt restructuring practices no longer rests on the elimination of insolvent entities but on the remodelling of the financial and organisational structure of debtors experiencing financial distress so as to permit the rehabilitation and continuation of their business. For private households, it is argued to be insufficient to merely dismiss debts after a certain period. It is important to assess the underlying problems and to minimise the risk of financial distress to re-occur. It has been stressed that debt advice, a supervised rehabilitation period, financial education and social help to find sources of income and to manage household expenditures better need to be equally provided during this period of rehabilitation (Reifner et al., 2003; Gerhardt, 2009; Frade, 2010). In most EU Member States, debt discharge is conditioned by a partial payment obligation and by a number of requirements concerning the debtor’s behaviour. In the United States (US), discharge is conditioned to a lesser extent. Nevertheless, it should be noted that the spectrum is broad in the EU, with the UK coming closest to the US system (Reifner et al., 2003; Gerhardt, 2009; Frade, 2010). Other Member States do not provide the option of a debt discharge. Spain, for example, passed a bankruptcy law (ley concursal) in 2003 which provides for debt settlement plans that can result in a reduction of the debt (maximally half of the amount) or an extension of the payment period of maximally five years (Gerhardt, 2009); nevertheless, it does not foresee debt discharge.