The Law of Insolvency in South Africa is regulated by the provisions of the Insolvency Act 24 of 1936, with foundations in our common law, which has been influenced by different legal systems from Western Europe. But currently there is also other legislation affecting the insolvent debtor and the property in the insolvent estate. The courts too have had to formulate rules to govern aspects of insolvency law in South Africa. These variables created problem areas in insolvency law and in respect of the of the policies upon which the insolvency system hinges. The predominant policy in South African insolvency is the collection of the maximum assets of the debtor for the advantage of creditors in insolvent estates. This strict creditor orientated approach created further problem areas in respect of assets in the insolvent estates of individual debtors. If advantage to creditors cannot be shown in an application for the sequestration of a debtor’s estate, a court will refuse to grant that order. This strict policy overshadows policy concerns in respect of assets in insolvent estates, and regarding exemption law in respect of those assets. This has resulted in insolvency law reformers in South Africa missing the bigger picture, namely, that South Africa is a creditor driven developing society. It is conceivable that in the transformed South Africa, and in the present world economic chaos, there will be an escalation of sequestrations of the estates of individual debtors. Bearing this in mind, a reformed insolvency law system must become more debtor friendly. A change in the philosophy is needed in favour of an exemption policy for insolvent estates. Exemption policy must be based on the interest of the debtor and his dependants, his dignity, creditor and third party interests, social welfare, and human rights imperatives within the South African constitutional framework. Exemption policy must be linked to the policy of a “fresh start” for the debtor. The different policies in insolvency however create a conflict of interest among the different stakeholders, particularly regarding the assets in insolvent estates, thereby creating problem areas. In this thesis several problem areas are identified and critically analysed. The position of property included in, and excluded from, individuals’ insolvent estates is investigated from a brief historical perspective, and in a brief comparative survey of the insolvency systems of the United Kingdom and the United States of America. Acute problem areas are critically analysed in detail, and the constitutional impact on property in insolvent estates is considered in a separate chapter. The South African Law Reform Commission’s review of South African insolvency law is critically analysed in a chapter of this thesis, concluding that the Commission’s review is inadequate. This thesis concludes that there is a need to reform the insolvency system in South Africa and proposes a way forward in respect of property included in, and property excluded or exempt from insolvent estates. This thesis states the law to the end of October 2008. / Thesis (LLD)--University of Pretoria, 2009. / Mercantile Law / unrestricted

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

The goal of my bachelor thesis is to introduce Debtor and Creditors to readers. In every topical unit there are both teoretical and practical parts (accounting schematics and examples).

This masters thesis is focused on the theory related to the topic of receivables. The analytical part is focused on the detailed receivables management in the selected capital company. In response to the analytical part are introduced recommendations for the improvement of their amount and their management. The end of the masters thesis summarizes the results from the analytical part.

Dessaisir ou ne pas dessaisir, telle est la question intéressant la situation du débiteur en liquidation judiciaire. À l’ouverture de la procédure, le débiteur perd l’exercice de ses droits et actions ayant une incidence patrimoniale au bénéfice de la qualité pour agir du liquidateur. Omniprésente, la notion de dessaisissement n’en demeure pas moins incertaine. D’abord, la nature et le régime juridique de la mesure ne peuvent se concevoir de manière autonome. En effet, seule l’étude du gage commun des créanciers permet la compréhension du dessaisissement. Le lien établi entre les deux notions permet d’affirmer qu’au morcellement du gage commun s’en suit un affaiblissement corrélatif du dessaisissement. Ensuite, si le dessaisissement est objectivement dépendant des fluctuations de l’effet réel de la procédure, ce sont, en outre, les droits conservés par le débiteur qui atteignent la consistance de la mesure. Le respect des droits fondamentaux du chef d’entreprise restreint le domaine du dessaisissement au bénéfice des droits propres procéduraux du débiteur. Ces considérations participent à la mise en œuvre des exigences européennes en la matière et plus particulièrement celle du droit au rebond du débiteur en difficulté. Dans ces conditions, la pérennité du dessaisissement devient source d’interrogations. Entre un anachronisme prononcé de la mesure ou une simple nécessité d’évolution de la notion ; dessaisir ou ne pas dessaisir telle ne pourrait plus être l’exacte question. / Dispossessing a debtor in liquidation proceedings, that is the interesting question which naturally appears in such situations. At the start of the proceedings, the debtor must hand over the ability to exercise his rights and take actions over his assets to the liquidator. Even though the notion of dispossession is omnipresent, it remains an unclear notion nonetheless. Firstly, the type of procedure and the governing legal regime are not mutually exclusive. Secondly, it is indeed only the analysis of the creditor’s common pledge that allows us to understand dispossession. The link established between the two notions asserts that the fragmentation of the common pledge leads to a correlative weakening of the dispossession. If the dispossession is objectively dependent on the fluctuations of the real effect of the proceeding, it is furthermore the rights retained by the debtor that will have an impact on the substance of the measure. Respecting the entrepreneur’s fundamental rights restricts the effect of dispossession on the debtor’s procedural rights. These considerations contribute to the implementation of the European requirements in this area, and more specifically, the debtor’s right to a fresh start. In such conditions, the longevity of the dispossession raises other questions. We must decided between a pronounced anachronism of dispossession or the necessary evolution of the notion – to dispossess or not to dispossess, that is the heart of the question under study.

Law and Macro-Finance is a theoretical framework explaining the relationship between law and the macro-financial variables of liquidity and leverage. The framework's central theoretical claim is that strong creditor rights exacerbate the procyclicality of liquidity and leverage. Strong creditor rights have that effect because they create different incentives in different parts of the economic cycle. Strong creditor rights encourage creditors to lend in a credit boom, thereby increasing leverage and making the economy vulnerable to shocks through various leveraged-related channels. However, in a credit bust, the enforcement of strong creditors' rights can trigger an economic downturn or make it more difficult for the economy to recover from the shocks. The normative part of the Law and Macro-Finance framework revolves around regulating liquidity primarily through a countercyclical design of the strength of creditors' rights in bankruptcy and collateral law to ensure adequate levels of leverage in different parts of the economic cycle. The key elements of bankruptcy and collateral law that could be used for that purpose are the rules establishing the strength of money market investors' rights, including bankruptcy safe harbors, true sales doctrine, and rules around collateral rehypothecation.

No / A central element in developing credit management policy involves design choices on the extent to which credit activities are best managed internally or through specialist market intermediaries. This paper draws on the findings of a survey on the credit management practices and policies of large UK companies to: (1) Examine the type of firm most likely to enter into specialist external credit management structural arrangements; and (2) Identify contextual and credit policy choices influencing the credit period taken and late payment of debts. The study found that specialist intermediaries are not particularly common in large firms. The paper also identifies a number of contextual and policy variables that help explain variation in debtor days and late payment by customers.

The defense of a debtor in execution proceedings Abstract The thesis focuses on the defense of a debtor in execution proceedings. It is divided into theoretical and practical part and composes of six chapters. The thesis is based on specialized literature, professional newspaper articles, Czech courts case law and historical and current legislation. The goal of this thesis is to provide theoretical explanation of selected legal means of the defense given to a debtor in execution proceeding and to subject them to considerations and criticism. Therefore, each part of the thesis doesn't lack considerations of sufficiency or insufficiency of the legislation in relation to the debtor or reflections over the possibilities how to abuse the legal means of defense in execution proceeding by a debtor. The first chapter is devoted to the historical excursion focusing on the execution law with an emphasis on the possibilities of the defense of the debtor against execution. The excursion starts in the Roman era, continues through the medieval and modern execution law and ends with significant milestones in the execution law in the Czech Republic. The second chapter defines the participants of the execution proceedings, because only participants of the execution proceedings are those subject to the legal means of the...

LL.M. (Corporate Law) / Please refer to full text to view abstract.

This doctoral submission represents over ten years of focused research that has resulted in a unique collection of academic and professional articles. The epithet "unique" is adopted to reflect that over those years this area of study has been relatively untouched by other academic researchers. This submission presents a total of eight academic and seven professional journal publications that chronicle the major output of numerous research projects undertaken between 1992 and 2002. The publications adhere to a central aim - to investigate the practical use and complex interactions between stakeholders of the individual insolvency rescue vehicle the Individual Voluntary Arrangement (IVA). The research projects employed a variety of relevant methodologies to populate an emerging conceptual model of the prime factors affecting the incidence, usage and outcomes of IVA cases. The first five articles report and develop the data collected during the various projects. The articles build on each other, analysing results and comparing these with previous studies to underline reliability in the data. The final three articles draw threads from the research data and develop the conceptual model further. As a research progression this submission contains all of the necessary ingredients of a doctoral thesis. It focuses on a discrete body of knowledge, builds on a conceptual model, gathers valuable data and tests it, draws strong conclusions and, finally, establishes and contributes new theory in this area of study.