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Reviewable transactions in insolvency : the recognition of creditors’ interests in "subjective" and "objective" insolvency regimesHorne, Andrew J. 11 1900 (has links)
A person on the eve of bankruptcy may enter into transactions or arrangements that are intended
to, or that have the effect of, preserving its property from being seized and distributed among
creditors. Such transactions may provide a bankrupt with collateral benefits such as the
continued use and enjoyment of property, or they may benefit third parties such as members of
the bankrupt's family, or they may benefit selected creditors to the detriment of others. The
effect of such transactions is to frustrate the legislative scheme which provides for the
distribution of a bankrupt's residual property. This effect may be desired by a bankrupt or by a
recipient of the bankrupt's property, or it may be unintended.
Insolvency legislation confers wide powers upon a trustee in bankruptcy to "review" such
transactions by bringing proceedings to reverse their effect and recover the value lost to the
bankrupt's estate. Reviewable transactions comprise two main categories: dispositions or
unequal transactions in which a debtor parts with property for no or insufficient consideration
(such as a transfer of property to a spouse or a sale in which a bankrupt does not receive a fair
price) and preferential repayments of debts owed to certain creditors to the detriment of others.
Reviewable transaction laws in Canada and England have a subjective basis in that they focus
upon the intent of a debtor to defeat creditors or prefer one creditor over others. In contrast,
relevant Australian and New Zealand laws have an objective focus and provide remedies where
the effect of a transaction, rather than the intent of a debtor, is to defeat the interests of creditors.
This paper conducts a comparative critique of reviewable transaction regimes. It makes the
argument that subjective regimes tend to reflect their historical origins in fraud law and a desire
to punish and frustrate the fraudulent intent of a bankrupt; an inappropriate policy foundation
that fails to address the competing interests and policy considerations which should form the
basis of reviewable transaction law. Objective regimes, which focus upon the effect of
impugned transactions, provide more appropriately for the balancing of creditors' and recipients'
interests and the making of provision for policy considerations. This paper also considers
collateral effects of reviewable transaction regimes upon creditors' interests (such as effects
upon claims to property recovered by a trustee) in a variety of circumstances and concludes that
the results are often inconsistent and undesirable. In this respect the relative positions of secured
and unsecured creditors are described in detail and proposals for reform are ventured.
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Reviewable transactions in insolvency : the recognition of creditors’ interests in "subjective" and "objective" insolvency regimesHorne, Andrew J. 11 1900 (has links)
A person on the eve of bankruptcy may enter into transactions or arrangements that are intended
to, or that have the effect of, preserving its property from being seized and distributed among
creditors. Such transactions may provide a bankrupt with collateral benefits such as the
continued use and enjoyment of property, or they may benefit third parties such as members of
the bankrupt's family, or they may benefit selected creditors to the detriment of others. The
effect of such transactions is to frustrate the legislative scheme which provides for the
distribution of a bankrupt's residual property. This effect may be desired by a bankrupt or by a
recipient of the bankrupt's property, or it may be unintended.
Insolvency legislation confers wide powers upon a trustee in bankruptcy to "review" such
transactions by bringing proceedings to reverse their effect and recover the value lost to the
bankrupt's estate. Reviewable transactions comprise two main categories: dispositions or
unequal transactions in which a debtor parts with property for no or insufficient consideration
(such as a transfer of property to a spouse or a sale in which a bankrupt does not receive a fair
price) and preferential repayments of debts owed to certain creditors to the detriment of others.
Reviewable transaction laws in Canada and England have a subjective basis in that they focus
upon the intent of a debtor to defeat creditors or prefer one creditor over others. In contrast,
relevant Australian and New Zealand laws have an objective focus and provide remedies where
the effect of a transaction, rather than the intent of a debtor, is to defeat the interests of creditors.
This paper conducts a comparative critique of reviewable transaction regimes. It makes the
argument that subjective regimes tend to reflect their historical origins in fraud law and a desire
to punish and frustrate the fraudulent intent of a bankrupt; an inappropriate policy foundation
that fails to address the competing interests and policy considerations which should form the
basis of reviewable transaction law. Objective regimes, which focus upon the effect of
impugned transactions, provide more appropriately for the balancing of creditors' and recipients'
interests and the making of provision for policy considerations. This paper also considers
collateral effects of reviewable transaction regimes upon creditors' interests (such as effects
upon claims to property recovered by a trustee) in a variety of circumstances and concludes that
the results are often inconsistent and undesirable. In this respect the relative positions of secured
and unsecured creditors are described in detail and proposals for reform are ventured. / Law, Peter A. Allard School of / Graduate
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A comparative study of the effects of liquidation or business rescue proceedings on the rights of the employees of a companyJoubert, Engela Petronella 29 November 2018 (has links)
Whenever legal disciplines overlap interesting scenarios occur and differences in opinions create intellectual tension. One such interesting scenario occurs when employees’ rights are affected during a company’s liquidation or business rescue. The employees of a company are normally the last persons to find out that a company is struggling financially. They are also the only stakeholders who are in no position to negotiate their risk should the company be liquidated. It is therefore necessary to evaluate the rights given to employees during a company’s liquidation and business rescue. The fundamental ideologies of company law, insolvency law and labour law are challenged and examined to attempt a harmonizing result that respects the core of each discipline. It is crucial to determine whether an appropriate balance is struck between the interests of all the stakeholders of the company during these procedures.
The aim of this thesis is to evaluate whether South Africa manages to strike this balance. If employee rights are protected whilst a company is restructured back to solvency and success, this balance will be struck. An evaluation will also be made whether employees are always better protected during business rescue than in liquidation.
The study analyses employee rights in a company’s liquidation and during a company’s restructuring process. The comparative study of employee rights in liquidation and rescue is done with the jurisdictions of Australia and England – countries with similar procedures.
Important conclusions show that South Africa protects employee rights during business rescue procedures the best. An appropriate balance is indeed struck between the interests of all stakeholders of a company during business rescue procedures and employees are most of the time better off after a restructuring than in a liquidation. Should the recommendations for law reform be implemented in our legislation, South Africa will overcome the few obstacles currently in its way to be seen as a world leader where employee rights are concerned in liquidation proceedings as well as business rescue. / Mercantile Law / LL. D.
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