The bankruptcy laws of the various nations differ materially as to the definition of the substantive grounds for the institution of insolvency proceedings, especially those initiated by creditors. The majority of laws employ general formulas, such as cessation of payments (Argentina); impossibility of meeting current indebtedness with disposable assets (France); lack of ability to pay all debts, taking account of contingent and prospective liabilities (England); general nonpayment of debts, not subject to a bona fide dispute, as they mature (United States); inability to pay or excess of liabilities over assets (Germany); or inability to satisfy regularly oneâs liabilities (Italy). Some of the common-law countries, including Australia, Canada, India, and New Zealand, require a creditorâs petition upon commission by the debtor, within a specified period prior to the petition, of one or more âacts of bankruptcyâ or âacts of insolvencyâ listed in the respective statutes. These acts, which vary among statutes, include public manifestations of insolvency as well as conduct that endangers the collectibility of debts or entails preferential treatment of certain creditors by an insolvent. Some jurisdictions have mixed systems. Liquidation is decreed if the debtor has either resorted to cessation of payments or committed specified acts manifesting insolvency. Laws of that type apply in Spain, Portugal, Brazil, Chile, and Mexico. In some of these laws (e.g., that of Mexico) the commission of these specific acts raises merely a presumption of a cessation of payments. In Brazil and Chile even a single default in the payment of a liquid and exigible indebtedness warrants proceedings if the obligation has remained unpaid after demand. In Switzerland institution of liquidation proceedings likewise can be based on cessation of payments or on the commission of other specified acts of bankruptcy.
Assets subject to liquidation proceedings
One of the most important aspects of bankruptcy legislation is the determination of the assets to be seized and sold for the purpose of distributing the proceeds among the creditors. Various legal systems have vastly different approaches. The disparities relate mainly to the status of assets acquired by the bankrupt subsequent to his adjudication or conveyed away by him prior to that date.
In Germany all nonexempt assets belonging to the bankrupt at the date of the adjudication form the bankrupt estate. Assets that are no longer owned by the bankrupt at the time of the adjudication are not included in the bankrupt estate unless their sale, transfer, or other disposal is voidable under special rules permitting the avoidance of fraudulent or preferential transactions. The Bankruptcy Code of the United States follows a similar approach, except that the âdate of cleavageâ is not the date of the adjudication but the date of the filing of the petition. Post-petition acquisitions are part of the bankrupt estate under the U.S. law only if they constitute narrowly defined âwindfalls,â such as inheritances or bequests settled on the bankrupt within six months from the filing date. On the other hand, many other bankruptcy laws include within the estate subject to distribution all nonexempt assets acquired after the adjudication and during the period of the proceedings. Thus, the English Insolvency Act, 1986, provides that in individual bankruptcies the bankruptâs estate comprises all nonexempt property owned by the debtor on the day on which the bankruptcy order is made and any property claimed by the trustee (the person charged with the administration and liquidation of the bankruptâs estate) that has been acquired by or devolved upon the bankrupt since that time and until the date of his discharge. Similar provisions exist in Canada, Australia, and New Zealand, except that in Australia and New Zealand the date for determining what is property of the bankrupt estate relates back to (i.e., is retroactive to) the date of the earliest commission within a specified period of an act of bankruptcy by the bankrupt. This ârelation-backâ theory, however, is qualified by numerous exceptions.
In the majority of civil-law countries that follow the traditional French model, the bankrupt estate likewise includes all nonexempt property owned by the debtor at the date of the adjudication and all property acquired during the course of the proceedings until the close of the case or the rehabilitation of the debtor. Subject to variations in details, laws of that type operate in, for example, Argentina, Austria, Brazil, Italy, Portugal, Spain, and Switzerland. Some of these laws (e.g., those of Chile and Italy) make special exceptions for future earnings to the extent that they are necessary for the debtorâs maintenance. The 1985 French law on economic rehabilitation and liquidation also includes in the bankrupt estate all property acquired on whatever grounds until the close of the proceedings. With the exception of Austria, Italy, and Switzerland, the countries listed above retract the effective date of adjudication to the date of the cessation of payments.
The insolvency or bankruptcy laws of England and other countries that follow the English model give title to the property forming the bankrupt estate to the trustee or assignee in bankruptcy. In the United States the estate is a separate legal entity represented by a trustee. In the other countries liquidation proceedings divest the bankrupt of his power of administration and disposition, but he retains the title to the assets of the estate. The estate, however, forms a separate unit, often called the mass.
As indicated above, a number of bankruptcy laws contain a relation-back effect, dating the bankrupt estate as of the time of the petition, the earliest commission of an act of bankruptcy, or the cessation of payments. The model for that approach in the civil-law countries whose laws were based on the French codes was the French Commercial Code of 1807. It required the decree of adjudication to fix the date of the cessation of payments and provided that transactions by the bankrupt after that time and before the adjudication (called the critical, or suspect, period) did not affect the estate. In 1838 France replaced the general relation-back theory with a catalog of transactions, mostly various types of gratuitous or preferential transfers, that were rendered ineffective against the mass if made during the critical period. The law of 1985 in essence retains that approach. Most countries limit the duration of the period of possible retroactivity. Spain is one of the countries still adhering to the general invalidation of transactions following the cessation of payments. Italy abolished the relation-back effect in 1942.
