Monday, 8 March 2010

Roman approaches to debtors and R3's "Ten years of debt slavery for those in Debt Management Plans" press release

The Association of Business Recovery Professionals (R3) put out a press release on Friday last week which was entitled: "Ten years of debt slavery for those in Debt Management Plans". The debt slavery reference put me in mind of the experience of debtors under Roman law (pictured right). I thought a blog entry on the subject might be in order. Before that, it is perhaps useful to consider the press release itself. It notes:
"Figures released today by insolvency trade body, R3, show that a quarter (26%) of Debt Management Plans (DMPs) will last ten years or more, even though a DMP is meant to be a short-term repayment plan between an individual and their unsecured creditors.
R3 President, Peter Sargent commented: “DMPs can play an important role in offering a manageable solution to individuals who are able to pay back their debts. However, the sheer length of some plans indicates that the amount of debt these individuals have is too large for a DMP. By entering into these inappropriately lengthy plans people become slaves to their debts.”
“Moreover, our figures show that a third (30%) of individuals who are currently bankrupt or in an Individual Voluntary Agreement (IVA) used to be in a DMP. The volume of those who go from DMPs into a formal insolvency procedure suggests that, in some cases, DMPs prolong distress when another procedure would have been more appropriate to start with.”

R3’s survey also reveals that twenty-two per cent of individuals in a DMP say that they were not asked for proof of their income or expenditure before their plan began.

“It is incredible that organisations set up DMPs without these vital details,” added Peter Sargent. “If this information is not verified at the start the monthly payments may be set too high – dooming the plan from the outset.”

R3’s research also finds:
46 per cent of IPs have seen DMPs fail because the monthly repayments were too high.
52 per cent of IPs have seen individuals being ‘pushed’ into DMPs by creditors.
And 35 percent of individuals in a DMP say that other options for dealing with their debts, such as an IVA or bankruptcy were not discussed before starting a DMP."
R3 highlight some interesting trends which will be of interest to policy makers and DMP providers. With these trends in mind and with the debt/slavery analogy so clearly highlighted it might be appropriate to consider some classical approaches to debt. These approaches did of course feature slavery. It is to that treatment that we can now turn.


Debtor Treatment at Roman Law
It has long been recognised that Roman law[1] contained some of the seed elements of regulation that subsequently dealt with what we would now call insolvency issues.[2] Indeed, Roman law[3] approaches to insolvent estate management have even been highlighted as possibly influencing the Tudor legislature when they introduced the 1542 Act.[4] Whilst the term bankruptcy was a stranger to Roman Jurists, the concept of insolvency was not, as the term non solvendo was familiar to them.[5] The systems that Roman law[6] formulated to deal with credit breakdown were to some extent typified by a harshness that is perhaps best enunciated by Portia’s vivid depiction of the fate of a non-paying merchant in Shakespeare’s The Merchant of Venice, arguably the most famous literary illustration of what might happen to a fictional Venetian debtor, Antonio, who did not pay his creditor, Shylock, “the red-haired Jew who sought the bankrupt merchant’s pound of flesh.”[7] In relation to the consequences of the failed guarantee arrangement Portia darkly observes:

“this bond is forfeit,

And lawfully by this the Jew may claim

A pound of flesh, to be by him cut off”[8]

The, “terrible law of the Twelve Tables”[9] advocated a cruel choice for debtors. It is perhaps from this source that R3 took their debt slavery reference. Roman debtors faced banishment beyond the Tiber, trans Tiberim, or having their body divided amongst their creditors in proportionate pieces to their respective claims,[10] which has a curious echo in later English insolvency jurisprudence.[11] Whether or not the division of a debtor’s body did actually occur is a moot point. A number of commentators have stated that the law of the Twelve Tables, and in particular Table 3, did not in fact countenance this form of treatment.[12] The fact that the practice was abolished in 313 BC (along with the sale of the debtor’s body)[13] does perhaps, however, suggest that this form of treatment may have occurred. Why else would the Romans have needed specific legislative intervention to abolish the practice?

The Roman debtor and his family could also be imprisoned, chained and pressed into hard labour.[14] Perpetual banishment into foreign slavery beyond the Tiber could also befall a debtor and his family.[15] Servitude, as one commentator has noted, was a feature of many early societies.[16] Forcing a debtor to repay his creditor through work was seen as both a recovery mechanism and a prohibitive measure against irresponsible credit use.[17] This rather strict approach to debtor treatment by the Romans has a forerunner in the ancients. As Maine observes in the context of early contract law, “I mean the extraordinary and uniform severity of very ancient systems of law to debtors, and the extravagant powers which they lodge with creditors.”[18] This form of debtor treatment at Roman law needed a device to enforce and judgment debt. Two legis actiones performed this function. The “l.a. per manus iniectionem and l.a. per pignoris capionem[19] were mechanisms that provided for arrest and attachment. If the body was taken in execution (as opposed to property) the creditor had to supply the debtor’s prison. As Radin observes, “Wealthy creditors could do this, and could use the labor of their debtors in lieu of payment of debt.”[20] So imprisonment, banishment, slavery, and in some instances bodily dismemberment, were reportedly methods of debtor treatment in Roman law.

Despite this reputedly harsh approach, there were other treatments at Roman law that were particularly forward looking. Treatment was not wholly restricted to what we might consider severe. Roman law also provided for a number of remedies that have echoes in modern approaches to insolvent estate management. Perhaps the most noteworthy is the concept of beneficium competentiae,[21] which is arguably a direct ancestor of the modern English Insolvency Act’s provisions on exempt assets to aid the debtor’s continued maintenance.[22] In terms of procedures the Roman law of cession allowed a debtor to place all of his property into the hands of his creditors.[23] In exchange he would not be imprisoned by his creditors, but he was not discharged from the debt. This remedy was introduced by Julius Caesar and was available to all classes of debtor.[24] This species of treatment is more commonly referred to as cessio bonorum[25] which is the concept in Roman law whereby the debtor’s assets are assigned for the benefit of creditors.[26] Loveland has opined that[27] cessio bonorum constitutes, “the first law resembling in any marked degree a bankrupt law, as it is understood at the present time.”[28] Similarly, Radin has referred to this procedure as, “a sort of voluntary bankruptcy.”[29] The effect of the cessio bonorum was to lighten the severity of the treatment discussed in the previous paragraph, i.e. if the debtor voluntarily assigned his property for the benefit of his creditors, he would be spared some of the harsher elements of Roman debtor treatment such as imprisonment because once cessio bonorum had been used, bodily execution against the debtor could not be used.[30]

Venditio Bonorum, which is also stated as bonorum emptio, was also available in Roman law.[31] This procedure caused the division of the debtor’s entire estate amongst his creditors. This was a forced sale for the benefit of the creditors. This can be compared to distractio bonorum where the debtor’s assets would be sold off in a more piecemeal fashion to the creditors. Fletcher has noted that Remissio and Dilatio were both forms of compositions with creditors.[32] The Romans also recognised a species of moratorium within a voluntary arrangement.[33] Relief or apportionment for the debtor was also provided at Roman law. As noted above the beneficium competentiae allowed the debtor to keep some of his property.[34] Rajak has highlighted that both nexum and addicto existed at Roman law as a method of termly repayment whereby the debtor worked off his indebtedness to his creditors.[35]

Who administered these various procedures? There were two main functionaries. First, there was the magister, who was a creditor acting on behalf of all the creditors. The magister would divide the proceeds of sale of the assets of the debtor amongst the creditors during a bonorum venditio.[36] Secondly, there was the curator bonorum who took possession of the debtor’s property and sold it for the benefit of the creditors. As Radin has observed, “The Roman curator of a bankrupt estate is the prototype of the modern American trustee or assignee in bankruptcy or insolvency.”[37] The same could of course be said for both the Tudor Commissioner in Bankruptcy and modern Insolvency Practitioners.

Roman law also developed mechanisms to deal with fraudulent conveyances.[38] Here we will briefly touch on the actio pauliana, a remedy designed to preclude behaviour that we might now characterise as activity which is designed to fraudulently convey property to defeat creditors.[39] This legislative response to miscreant debtor behaviour is very important as it highlights a difference in approach to debtor treatment at Roman law. If cessio bonorum represents a relatively “modern” idea of assignment of property for the creditors benefit and also of course a preclusion of debtor imprisonment, the actio pauliana represents the idea that not all debtors could be treated with fairness. Some debtors did engage in dubious activity and a legislative response was necessary. This fracture of treatment provides a direct historical link to the first bankruptcy statute to be introduced in England and Wales.

The actio pauliana was a creation of the Roman jurist Paul. The procedure was designed to deal with those debtors who deliberately avoided their obligations to creditors. This species of fraudulent debtor was known as a decoctor. If the decoctor had transferred their assets to a complicit third party the actio pauliana could be invoked.[40]

In summary, Roman law’s approach to debtors can be divided into three types of treatment. First, there is the execution and imprisonment stage (against the body and assets). There then follows the compulsory bankruptcy stage (venditio bonorum). Finally, there is the voluntary bankruptcy stage (cessio bonorum). There are definite similarities with Roman law insolvency practice and later approaches to insolvent estate management and with the institution that is bankruptcy. Indeed, as Radin has observed, “The Romans had a well worked out system, which we might call one of bankruptcy.”[41] Perhaps we could go so far as to call the three stages “Roman Bankruptcy” law.


[1] The term “Roman law” is wide ranging and covers a vast time period and geographical spread. Europe, Asia and Africa where touched by Roman law. In a time sense the term stretches from the early prehistoric until 1453AD (although Radin (Radin Rome, page 1) puts the end date of Roman law at the present). Consequently, space does not allow a complete examination here. Only the most important elements will be touched on. On insolvency and Roman law generally see: Radin, M. Handbook of Roman Law. West Publishing Ltd, St.Paul, Minn. 1927, at pages 280 to 286.

[2] See for example: Jackson, TH. The Logic and Limits of Bankruptcy Law. Harvard University Press. Cambridge, Massachusetts. 1986, at page 1. Jackson’s historical treatment is rather brief and mixes the classical and medieval treatment of debtors in a little under two sentences. He fails to discuss the alternative derivation of the term bankruptcy and relies perhaps too heavily on Treiman.

[3] See generally: Buckland, WW. A Textbook of Roman Law from Augustus to Justinian. 3rd Edition CUP, Cambridge. 1966; Thomas, JAC. Textbook of Roman Law. 1976; Van Leeuwen, Commentaries. On Roman Dutch Law (transl. by Kotze 1923) vol.2, p.334; Wessels. History of Roman-Dutch Law, 1908, page 665; Wolff, HJ. Roman Law A Historical Introduction. University of Oklahoma Press, Norman, Oklahoma, 1951.

[4] Helmholz, RH. Canon law and the law of England. Hambledon Press, 1987, at page 305.

[5] See further: Doria, AA & Macrae, DC. The law and practice in Bankruptcy: under the provisions of the Bankrupt Law Consolidation Act, 1849, 12 & 13 Vict. c. 106; as amended by subsequent statutes, etc, two volumes. London, 1863, page 2.

[6] For one nineteenth century critique of Roman law’s approach to debt see: Bell, GJ. Commentaries on the Laws of Scotland, and on the Principles of Merchantile Jurisprudence, considered in relation to bankruptcy; competitions of creditors; and imprisonment for debt. 5th Edition. William Blackwood, Edinburgh & J. Butterworth Ltd, London, 1826, at book one, chapter one, page 3. See also: Bell, JB. Commentaries on the Recent Statutes relative to Diligence or execution Against the moveable Estate; Imprisonment; Cessio Bonorum; and Sequestration in Mercantile Bankruptcy. Edinburgh, 1840.

[7] Denning, AT. Landmarks in the Law. Butterworths, London, 1984, page 321.

[8] Shakespeare, W. The Merchant of Venice. 22 July 1598, at Act IV, Scene 1, line 228. See further: Keeton, GW. Shakespeare and His Legal Problems. A&C Black Ltd, London, 1930, at Chapter VI, ‘The Law of Debt in Shakespeare’, where it is noted at page 79 that, “many of the courtiers who attended the performance of his [Shakespeare’s] plays themselves hovered dangerously near the precincts of the Fleet.”

[9] Blackstone, W. Commentaries on the Laws of England, Book the Second. Clarendon Press, Oxford. 1829, at volume II, page 472.

[10] Blackstone (ibid) notes that this interpretation of “de debitore in partes secando” is potentially problematic.

[11] i.e. the removal of the ear pursuant to the Act of 1604.

[12] See for example: Gaius, 3, 199 and Aulus Gellius, 20, 1.

[13] The lex Poetelia, 313 BC.

[14] Blackstone, W. Commentaries on the Laws of England, Book the Second. Clarendon Press, Oxford. 1829, at volume II, page 472.

[15] Ibid.

[16] Cornish, W.R & Clark, GN. Law and Society in England 1750-1950. Sweet & Maxwell, London. 1989, at page 228.

[17] On roman debtor treatment see further Frederikson, MW. Caesar, Cicero and the Problem of Debt (1966) 56 Journal of Roman Studies 128, cited in: Rajak, H. The Culture of Bankruptcy, in Omar, P. (Ed). International Insolvency Law: Themes and Perspectives. Ashgate, Hampshire, 2008.

[18] Maine, HS. Ancient law: its connection with the early history of society and its relation to modern ideas. 14th ed. John Murray, London, 1891, page 267.

[19] Radin, M. Handbook of Roman Law. West Publishing Ltd, St.Paul, Minn. 1927, at page 49. The actio iudicati was the action that provided for the debtor’s arrest. The order of missio in bona provided for the debtor’s property to be transferred to his creditor.

[20] Ibid.

[21] See further: Radin, M. Handbook of Roman Law. West Publishing Ltd, St.Paul, Minn. 1927, at pages 49, 96, 115.

[22] i.e. s.283(2) IA86. See further: Tribe, J. & Morgan, S. Personal Insolvency – A User’s Guide. Jordans Publishing Ltd, 2010, at chapter 16.

[23] Gaius, 3, 78.

[24] Kent, J. Commentaries on American Law. 4 volumes. New York, 1826, at volume 1, pages 422-423.

[25] On cessio bonorum and related subjects see: Bell, GJ. Commentaries on the recent statutes relative to diligence or execution against the moveable estate, imprisonment, cessio bonorum, and sequestration in mercantile bankruptcy, with the relative Acts of Parliament. 4to Edinburgh, 1840. See also his: Bell, GJ. Commentaries on the Laws of Scotland, and on the Principles of Merchantile Jurisprudence, considered in relation to bankruptcy; competitions of creditors; and imprisonment for debt….5th Edition. William Blackwood, Edinburgh & J. Butterworth Ltd, London, 1826.

[26] For a discussion of this subject in the relatively modern context see: Burrill, AM. A Treatise on the Law and Practice of Voluntary Arrangements for the Benefit of Creditors: With an Appendix of Forms. John S. Voorhies, New York, 1858.

[27] Loveland, FO. A Treatise on the Law and Proceedings in Bankruptcy. WH Anderson & Co, Cincinnati, 1899, page 2.

[28] Ibid.

[29] Radin, M. Handbook of Roman Law. West Publishing Ltd, St.Paul, Minn. 1927, at page 49. See also his page 115.

[30] Ibid. A constitution of Theodosius of 388AD (Cod. Theod.9,11,1) forbid execution against the person, but Radin notes (page 85) that his did not preclude this form of activity from occurring in the Eastern provinces, because “local customary law permitted it…”

[31] See: Gaius, 3, 77.

[32] Fletcher, I.F. The Law of Insolvency. 1st Edition. Sweet & Maxwell Ltd. London, 1990, at page 6.

[33] Graham, D. Tudor Insolvencies. Phoenix, the business recovery and insolvency journal of Coopers & Lybrand, June 1997, issue 23, page 13.

[34] See: Buckland, WW. The main institutions of Roman private law. Cambridge University Press, Cambridge, 1931, page 395.

[35] Rajak, H. The Culture of Bankruptcy, in Omar, P. (Ed). International Insolvency Law: Themes and Perspectives. Ashgate, Hampshire, 2008, at page 9.

[36] See further Radin, M. Handbook of Roman Law. West Publishing Ltd, St.Paul, Minn. 1927, at page 281 and 315.

[37] Ibid page 282 and 315.

[38] Radin, M. Fraudulent Conveyances at Roman Law (1931) 18 Virginia Law Review 109. This article is actually a transcription of various materials as opposed to a discursive critique.

[39] On fraudulent conveyances in historical perspective see: Roberts, W. A Treatise on the Construction of the Statutes 13 Eliz c.5. and 27 Eliz. c.4. relating to Voluntary and Fraudulent Conveyances, and on the nature and force of different considerations to support deeds and other legal instruments, on the Courts of Law and Equity. London, 1800. Second American from the last London Edition. (reprint by Fred B Rothman & Co. Littleton, Colorado. 1979.), pages 2 to 14. The statute 13 Eliz. c.5 is helpfully reproduced in a footnote from page 2 onwards.

[40] On the actio pauliana generally see: Radin, M. Handbook of Roman Law. West Publishing Ltd, St.Paul, Minn. 1927, at pages 153 and 154.

[41] Radin, M. Handbook of Roman Law. West Publishing Ltd, St.Paul, Minn. 1927, at page 314.

1 comment:

John Tribe, KPMG Lecturer in Restructuring, Kingston Law School, Kingston University, Surrey, UK said...

On A previous comment a commentator noted:

persevero said...
I am no kind of biblical expert, but my son has just read a portion of Exodus for his Bar Mitzvah that deals with the treatment of slaves. His teacher referred him to a section of Leviticus that implies that most Hebrew slaves acquired that status by selling themselves into bondage to cover debts - Leviticus 25:39 (http://www.mechon-mamre.org/p/pt/pt0325.htm#35).

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