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. I have just made known to you, gentlemen, the spirit of the system of the new law. I am now going to pursue the course of it, and to exhibit briefly, the motives of the principal provisions which it contains.
I shall not speak of the general provisions which are placed at the head of the law; the exposition which I have just given of the system which has dictated them, I trust, has sufficiently explained the distinction which we think necessary to establish between a failure, a bankruptcy, and a fraudulent bankruptcy.
The first chapter contains the provisions which the framers of the project of the code, and the chambers and tribunals of commerce had judged proper to add to the provisions of the ordinance of 1673, to fix with more precision the commencement of the failure, and to prevent the existence of any fraudulent act, which the merchant who foresees his failure might be tempted to commit within the ten days which precede it.
Article 445. of this chapter, will particularly engage your attention; it declares that the person failing, from the day of his failure, is disseised absolutely of all right to the administration of his estate: this provision alone, gentlemen, would already be sufficient to put a check to the scandal which must have struck you most forcibly in failures, and to offer to creditors a well founded hope of no longer seeing suddenly disappear, that property which misfortune or misconduct may have left them.
In the second chapter you will remark the care which the law takes to require promptness in affixing the seals on the insolvent's property, a salutary precaution, and without which, the fate of creditors might be easily compromitted.
After having deprived the insolvent of the administration of his estate, and affixed seals upon his goods and papers, it was necessary, in the first place, to secure his person, until he should be recognised as innocent, imprudent, or guilty ; secondly, to organize the administration of his estate, which can now no longer be considered as his property, and must serve as a pledge to creditors yet unknown. Formerly, the first comers, calling themselves creditors, appointed the assignees, and I think I have shown how much this first imprudence was favourable to dishonesty, and fatal to its victims.
We have thought that this temporary administration ought to be confided to disinterested men, to agents appointed by the tribunal of commerce, and although it would seem difficult to adopt a viser measure, and one which would afford greater security to public order as well as private interest, it has been deemed proper to place these agents under the superintendence of a commissioner chosen among the judges of the tribunal of commerce. The want of such a superintendence was so generally felt, that when the framers of the plan of the code proposed to establish for failures a commissioner of the government near the tribunals of commerce, the majority of the chambers of commerce approved of this establishment, the inconveniences of which were, however, evident. The influence of such a magistrate over the tribunals of merchants would injure the nature of their institution; and besides, we think it superfluous to demonstrate how much danger there would be in giving constantly to the same men, functions of $0 delicate a nature, in which they would incessaotly be exposed to the snares of seduction, and the distrust of misfortune.
The duration of the administration of the agents is fixed at fifteen days, and cannot be prolonged beyond a month. This term has appeared to us sufficient to know a great number of legitimate creditors; and as soon as they are known, it is proper that they should be called to the examination and administration of their affairs.
The object of Chapter IV. is to regulate the functions of the agents, and the conduct which they ought to observe in regard to the insolvent; almost all these provisions tend to ensure the prompt examination of the books and the effects of the insolvent, to discover whether he may be set provisionally at liberty, and called to give the necessary explanations in regard to his situation: the agents may receive the sums due, and sell the goods of a perishable nature. Every necessary precaution has been taken for the security of the money collected, and to confine the
duties of this provisional administration to measures of urgent necessity.
The balance-book is the subject of Chapter V. The ancient laws and usages had provided for every thing in this respect; we have only added to them the right given to the commissioner judge, of interrogating every individual who might give him useful information for the formation or adjustment of the balancebook.
Chapter VI. relates to the appointment of provisional assignees. When the creditors who are knowo, have assembled to a certain number, they propose a triple list of the pumber of provisional assignees whom they judge necessary to be nominated : from this list, the tribunal makes its appointment. It has been thought, that this was the only provision which could reconcile the right and interest of the creditors with the certainty of a good choice. After the appointment of the provisional assignees, the agents cease their functions, and these agents receive a compensation, only when they are not creditors; it is almost a certainty that the agents will be always chosen by the tribunal from among the creditors, except in very rare cases, in which the tribunal would have just reason to distrust the claims of the first creditors, who may have made theniselves known at the moment of the failure.
We insist on this point; for the apparent complication which seems to result from the system which creates agents, provisional and definitive assignees, ought to disappear in the execution of the law; and it is more than probable, that the choice made by the tribunal, will inspire a just confidence in the creditors, and almost always the same men, in a failure, who shall have been agents, will be confirmed as provisional assignees, and will be ome, in case of need, definitive assignees.
The provisional assignees must proceed diligently to the removal of the seals, and to the invertory; these operations are the subject of Chapter VII. and there it has been deemed proper to place the important provision, which obliges the agents and the assignees to communicate to the magistrate of safety, all the information necessary to a knowledge of the circumstances of the in
solvent, and this severe measure will be the terror of crime and the safeguard of innocence.
You will also remark, gentlemen, in this chapter, the provision which orders all the funds collected by the agents, and assignees, to be deposited in the bank of the sinking fund, (caisse d'amortissement.) You will doubtless think with us, that promptitude in the liquidations will assuredly take place when nobody will have any further interest in prolonging their duration.
Proof of the debts is subject to forms sanctioned by the approbation of all the chambers of commerce; and the superintendence of the commissioner, which we have added, must afford, on this important subject, complete security: the examinations authorized, the production of the registers, ordered in certain cases, ought to satisfy every legitimate creditor, and dissipate all fear of error or fraud in this respect. The creditors being all acknowledged and verified, will meet, and receive the accounts of the provisional assignees; they may make a composition with their debtor, but this composition cannot take place without the concurrence of the majority of the creditors in number, and three fourths in amount of all the debts. By this means, gentlemen, we have intended to erect a barrier against those disastrous compositions, with which the collusion of a small number of large creditors surprised the majority, when only the amount of the debts was taken into consideration, or those compromises, equally disadvantageous, which a majority in number of small creditors, pressed by their necessities, might make against the wishes and interest of creditors to whom considerable sums were due. We think, by this regulation, that we have answered the demands of justice and public order. This composition cannot be valid until after it has been confirmed by judicial authority, and this confirmation sball never take place when the insolvent is found charged with misconduct or fraud.
If no composition take place, the creditors will form a contract of union, and appoint definitive assignees, charged, under the superintendence of the commissioner and the authority of the tribunal, to adjust the balance-book; if necessary, to manage the affairs of
the bankrupt, to collect, sell, and proceed to the liquidation of the whole estate, and make a divideud according to the different claims of the creditors.
Here we repose from the duty of showing the motives of a severe law: we may, after so many measures, dictated by a prudent circumspection, and a necessary rigour, speak to you of those which misfortune inspires in the bosom of humanity.
In this chapter, you will find provisions which regulate the assistance which the mass of creditors ought to give to the insolvent, with whom they have made no composition; this assistance will be proportioned to his wants, to his condition, above all, to his conduct, and to the more or less of loss occasioned to his creditors. Your sentiments are too conformable to ours to fear that you will disapprove of a measure of beneficence, when regulated by justice.
M. Treilhard, my colleague, will unfold to you the motives of the provision contained in Chapters IX. X. and XI. relative to the different species of debts.
I proceed to Title II. of the project of the law; it regulates the forms to be observed for the assignment of the bankrupt's estate; but as all the provisions which it contains are drawn from the code of civil procedure, it requires no particular observation.
Title III. contains an important change, and, consequently, de serves to engage your attention.
Revendication was a long existing usage in France, and that favour granted to the seller to take back his merchandise when he could prove the identity of it, and found it, without alteration, packed up in the same state in which it was sold, was regulated by
Revendication is a French word, which literally means nearly the same thing as the English word repurchase, but corresponds, in the sense used in this code, with our legal expression stoppage in transitu. It was a right, anciently existing in France, of seizing and taking back goods which had not been paid for according to the terms of the sale ; and every creditor had this right in case of the failure or bankruptcy of the purchaser, provided the goods remained entire : they might indeed be pursued in the hands of third persons, if they had not been sold at auction by public authority. It is derived from the civil law. Vide Dig. 14. 4. 5. Dig. 18. 1. 19. 53. Dig. 19. 1. 11. T.