Interests Of Debtors Research Articles

Acquisition of ownership over the pledged thing by the creditor in Roman law (impetratio dominii)

It is less known that since the Severan Dynasty the creditor had the opportunity to ask the emperor for permanent ownership over the pledged thing (impetratio dominii). It is known, however, that the protection of the debtor's interests, given that it was easier to collect taxes from them than from large land-owners, was of utmost importance for imperial finances. Therefore, apart from prohibiting the stipulation of lex commissoria, as well as conditioning pactum Marcianum with just price of the pledged thing, the rights of the debtor were protected by subjecting impetratio dominii to several conditions. Imperatio dominii depended on a publicly announced previous attempt of sale as well as on its annulment in case the creditor continues to collect interest after the acquisition of ownership over the pledged thing. Unsatisfied with the lack of application of these conditions in practice, Justinian posted additional conditions for the application of this institute in 530: the obligation to attempt to sell the pledged thing within two years; to inform the debtor about it even after the expiration of this deadline, in order to give him the opportunity to pay his debt; to seek special approval of the emperor for the acquisition of ownership after the expiration of these deadlines; by introducing a subsequent possibility for the debtor to repurchase the pledge from the creditor within two years; making irreversible the creditor's ownership over the pledged thing only after the expiration of approximately four years; fair assessment of value of the pledged thing with the obligation of the creditor to return the surplus to the debtor as well as his right to request the payment of the outstanding amount from the debtor. This paper explores the emergence and evolution of imperatio dominii as well as the circumstances that lead to its emergence.

Consumer protection in creditor-debtor relations

The capitalist financial market is governed by terms and conditions imposed by large banking corporations and institutions. In creditor-debtor relations, the creditor (lender, lessor) is in a dominant economic and legal position at the moment of entering into a credit agreement, which enables him to impose different terms and conditions upon the debtor (borrower, lessee) and introduce unfair contractual clauses. Therefore, the legislator and government institutions have to protect debtors (consumers) as credit beneficiaries from such credit terms and conditions that unfairly aggravate the debtors legal position. In this article, the author analyzes the legal position of subjects of credit relations, with particular reference to the legislative provisions governing the protection of the debtor (consumer) as an economically and legally dependant contracting party. Apart from being significantly affected by financial market reforms and changes in the mortgage legislation, the legal position of debtors (consumers) has been additionally aggravated in Serbian legislation in the past decade. After discussing the creditor-debtor relations, the author focuses on the issue of establishing a balance of interests; the balance of the creditor and the debtor interests may be achieved by enabling the creditor to keep the financial incentive (earnings form the interest rate) and obliging the debtor (credit-user) to provide legal certainty and protection against unfair contractual clauses.

"The Business of Reputations": Secrecy, Shame, and Social Standing in Nineteenth-Century French Debtors' and Creditors' Newspapers

With the rise of industrialization and urbanization in the early nineteenth century, concerns about identity and information became increasingly pressing. At the same time, nineteenth-century society placed a high value on reputation and appearance. Secrecy was thus both deemed necessary to bourgeois notions of privacy and viewed as potentially dangerous to public order. While this dynamic has been explored for the elite primarily in terms of family life, the impact of honor and shame on economic practices of non-elites has been little considered. This article offers the first in-depth analysis of two competing types of papers in nineteenth-century France—those, like Le Tocsin and La Gazette des renseignements, which championed creditors and those, like Pauvre Jacques and La Gazette de Sainte-Pélagie, which defended the interests of debtors. Despite representing often directly opposing interests, both kinds of papers prominently employed tactics of public humiliation through the circulation of the names and personal details of specific creditors and debtors whose actions were deemed dishonorable. By examining the importance of reputation and honor in the lives of small shopkeepers and artisans at the beginning of the industrial revolution, this article shows how reputation grew rather than diminished in importance with a perceived increase in the anonymity of the market and how the commercial press could be used to describe and denounce economic and legal forces perceived as oppressive to small tradesmen and merchants.

SITA JAMINAN DALAM KEPAILITAN

The law of bankruptcy basically has to pay more attention and give a proportionate legal protection between the interests of debtors to creditors, even also the interests of other credi-tors, who do not have a file in the bankruptcy process. Unfortunately, the legal protection for the other creditors which is regulated in Article 10 Law No. 37/2004 contains many weak-nesses and give many erroneous interpretation in the field of its structure, culture and the substance. Therefore, the legal enforcement and the conservatoir measures in bankruptcy law which has been intended to protect the legal interests of what we called “the other credi-tors” in the commercial court decision becomes unpredictable.Keyword : bankruptcy, other creditors, debtors.

The Phenomenon of “Consumer Insolvency Tourism” and its Challenges to European Legislation

Consumer insolvency tourism, i.e., the relocation of over-indebted natural persons into a Member State granting a more favourable discharge regime from personal debt than the home country, has been focused by media as well as by legal practitioners quite intensively lately. Conflicts arise not only in distinguishing genuine and fictional relocations of the centre of main interest (COMI), but also between the effect of discharge and creditor's perspectives who did not take into account the possibility of considerably more debtor-friendly discharge facilities abroad when issuing the credit. While relocating a corporate COMI to another Member State providing better restructuring conditions will generally benefit both creditor and debtor, the effect of discharge in consumer insolvency procedures leads to less balanced results. It is not controversial that the current practice is in accordance with the wording of the European Insolvency Regulation (EIR). However, little research has been done so far on the question whether the phenomenon itself has been endorsed by the EIR. Even if consumer insolvency tourism is generally not regarded as an abuse of the EIR or of European freedoms, it may still not respect the interests of both debtors and creditors appropriately. With regard to the prospective revision of the EIR, this paper proposes different approaches to balance the interests of debtors and creditors by normative means.

Investment Appraisal At Imperfect Capital Markets

Investment decisions are of vital importance to all companies. Thus, effective appraisal methods are most important tools to support the decision-making. Among the most popular methods are the Net Present Value Method, the Internal Rate of Return Method and the Annuity Method, which explicitly consider the time value of money and can be characterized by the assumption of a uniform rate and are connected with the assumption of a perfect capital market.Aiming at a decision-making process closer to real business life we describe an investment appraisal method that assumes different credit and debtor interest rates, i.e., that is usable in imperfect capital markets. We exemplify investment appraisal in this market form with a method which visualizes any financial implications in an environment with a high number of different credit and debt interest rates, borrowing lines and other restrictions. The usage of this method is shown at examples and the appraisal of single investment projects and the comparison of mutually exclusive projects are described.

The Conceptual Structure of China’s New Corporate Bankruptcy Law

The passage of China’s new Enterprise Bankruptcy Law on 27 August 2006 stands as a landmark in the legislative history of China’s reform efforts in the area of economic law. This legislation was first put onto the national legislative program in China in 1994, and numerous drafts were then produced prior to the eventual enactment of the 2006 Law by the National People’s Congress of the People’s Republic of China (PRC). Not only has the Law had a lengthy legislative history, it was also one of the last remaining building blocks in the framework of China’s economic laws and now sits beside other important new PRC economic and civil laws, such as the Contract Law, the Company Law, the Securities Law, the Anti-Monopoly Law and the Property Law. This paper discusses key legal principles that are reflected in this Law and compares these with similar principles that can be found in other advanced legal systems and in international guidelines. The five primary principles are: (i) Providing a legal procedure for the regulation of enterprise bankruptcy; (ii) Ensuring the fair settlement of claims and debts in regard to the enterprise; (iii) Protecting the lawful interests of creditors; (iv) Protecting the lawful interests of debtors; and (v) Maintaining an orderly (socialist) market economy. These principles are supplemented five second order principles and a number of implied principles. The implementation of these principles in China’s new Bankruptcy Law will now be the next major challenge facing the development of this area of law in China.

Where are All the Transnational Bankruptcies?: The Puzzling Case for Universalism

Debates about transnational insolvencies rest on the assumption that the increasing global reach of companies will lead to more cases where more than one country assets jurisdiction over a debtor's assets. The challenge in this discussion is to delineate which set of rules countries should adopt so that value is not destroyed. The so-called universalists worry about inefficient liquidations and stress the need for countries to cooperate with each other. Territorialists, on the other hand, worry about a race to the bottom where the debtor chooses a friendly country to handle its insolvency and the rest of the countries where the debtor has assets reflexively cooperate. Yet both camps agree that as businesses expand across borders, multiple insolvency proceedings are inevitable. The only open question is the extent to which the involved jurisdictions should cooperate with each other. This paper challenges this accepted wisdom. It demonstrates that there are relatively few reorganization cases that involve multiple proceedings. The explanation for this puzzle is that debtors can control the number of proceedings that are opened in any given case. There are multiple proceedings only when it suits the debtor's interest. This control that debtors have over the process requires a reorientation in the literature. Rather than focusing on the rules that countries adopt, we have to examine the actions that debtors take and assess the welfare concerns.

European Restructuring

European governments have shown their commitment to the rescue culture by introducing new legislation that seeks to find an equitable balance between creditor and debtor interests. Although legislation varies across the countries, reflecting national and cultural differences, the basic objective is the same: preservation of enterprise value and employment. Governments can change the legal framework, but professionals must adapt to the new opportunities. Those practitioners and organizations that adapt to the challenge and seek innovative solutions will be the future leaders in the European restructuring industry. <b>TOPICS:</b>Private equity, developed, financial crises and financial market history

Debt-equity swaps and the enforcement of sovereign loan contracts

This paper analyses the incentive compatibility effects associated with restructuring sovereign debt through a debt-equity swap scheme and the analytically related issue of providing new project finance in developing countries through equity convertible bond issues. Our central result is that these initiatives can generate efficient investment incentives and also provide a partial contractual enforcement mechanism by reconciling the investment interests of debtors and their external creditors. Unlike previous analysis of the benefits of swaps, our results make no appeal to risk considerations nor invoke informational asymmetries. We also derive a necessary condition for swaps to overcome the free-rider barrier to the provision of voluntary, market-based debt relief. In contrast to Brady Plan restructurings, this condition does not rely on taxation of the capital gains accruing to non-participating creditors. The results should be viewed in the context of the structural transformation which has recently occurred in the source of capital flows to developing countries, from syndicated bank lending to the international bond markets. The analysis advocates an enhanced role for equity convertible bond issues in this resurgence of international capital market activity. © 1997 John Wiley & Sons, Ltd.

The Debtor's Interest in Personal Property under the PPSA

The PPSA legislation in this country allows various individuals to hold interests in personal property without having possession of that property. In this way it negates the traditional principle of equating an interest strictly with possession. In this article, the author explores the interests established by the PPSAs specifically in relation to the debtor. One problem noted is the tendency of the PPSAs to use the terms "interest" and "right" interchangeably with respect to the debtor in some areas, and to draw a distinction between the terms in others. The author examines the distinction between these terms at length, and suggests that "interest" would be a more appropriate term to use in the legislation. Also discussed is what factors are necessary in order for the debtor to create a "sufficient" interest in the personal property in question. Information here comes largely from case law, as the legislation itself is not specific. As a result, some uncertainty exists as to which factors create a sufficient interest for the debtor, particularly as to whether or not certificates of title or production quotas or licences held by the debtor will create a sufficient interest. Lastly, the effect of the PPSAs on the derivation principle is examined and the resulting limitations are discussed. The author concludes that in spite of some uncertainty, the legislation achieves the laudable goal of creating as many individual interests as possible in the same personal property, thereby generating wealth for the maximum number of people.

Bankruptcy. Corporate Reorganization. Order under Section 57(h) Terminating Debtor's Interest Held to Exclude Collateral from Reorganization

Bankruptcy. Corporate Reorganization. Order under Section 57(h) Terminating Debtor's Interest Held to Exclude Collateral from Reorganization