The_Struggle_for_Voluntary_Bankruptcy_an

The_Struggle_for_Voluntary_Bankruptcy_an - D De ruysscher1...

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D. De ruysscher 1 Th e Struggle for Voluntary Bankruptcy and Debt Adjustment in Antwerp ( c. 1520– c. 1550) Legal history concerning early modern insolvency and bankruptcy has o ft en focused on the proverbial “stick”. Much attention has been paid to rules that al- lowed for a swi ft liquidation of a bankrupt’s estate and to penalties for fraud. Solutions that were based on cooperation of the debtor and which facilitated postponements, or a fresh start a ft er the bankruptcy, have unfortunately received less attention. Th is disparity in the scholarly literature has to do with a focus on normative texts and with a relative neglect of the forensic and mercantile practices surrounding phenomena of indebtedness and insolvency. Legislation tended to be harsh, whereas its implementation was usually less rigid and straightforward. Quite recently economic historians in particular have started analysing statisti- cal data concerning insolvency practices in France in the nineteenth century, which clearly demonstrate many e ff orts towards negotiation. 2 As a result of their fi ndings, these historians have come to react against the views conventionally proposed in the ‘law-and- fi nance’ literature, inclined as these interpretations are to consider liquidation as the most e ffi cient means of tackling persistent payment problems. 3 1 Post-doctoral fellow of the Fund of Scienti fi c Research – Flanders and lecturer at Vrije Universiteit Brussel (VUB). Comments are welcome at [email protected] Prelimi- nary versions of this paper were presented at the seminar “ La responsabilité en justice ( École des Hautes Études en Sciences Sociales ) in Paris on 7 March 2013. Th at confer- ence as well as the meeting of the research group HOST at VUB (Vrije Universiteit Brussel) on 25 March 2014 resulted in the present publication. I would like to thank the participants for their comments and suggestions. 2 Hautcoeur, Pierre-Cyrille / Levratto, Nadine: “Bankruptcy law and practice in XIX th - century France”. Working paper 2007; Hautcoeur, Pierre-Cyrille / Levratto, Nadine: “Petites et grandes entreprises face à la faillite au XIX e siècle en France: du droit à la pratique”. Working paper 2007. For Belgium in the fi rst half of the 1800s, com- parable data point to a high number of extra-judicial agreements. See De ruysscher, Dave. “Praktijkgerichtheid in de rechtbank van koophandel (19de–21ste eeuw): een uitgeholde traditie opnieuw ingevuld”. In: De ruysscher, Dave (ed.): Rechtspreken en lekenparticipatie: noodzaak of traditie . Maklu: Antwerp 2013, pp. 148–149. 3 La Porta, Rafael, et al.: “Law and Finance”. Journal of Political Economy 106–6 (1998), pp. 1113–1155. Authors writing in this tradition commonly build on the assumption
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D. De ruysscher 78 Another reason for the afore-mentioned bias towards tough measures and the liquidation of businesses is a conceptual and even an ideological one, much related to the economic literature belonging to a Schumpeterian tradition. Along
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