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no law, and varied according to local custom: this usage was a source of a great many disputes, and the perpetual subject of the complaints of creditors in every failure; they submitted with reluctance to this privilege, and looked upon it as unjust. The framers of the project of the present code had suppressed and interdict. ed all revendication ; most of the chambers and tribunals of commerce had approved of this change by their silence; others had shown the motives of their approbation; some had voted for the continuance of the right of revendication, alleging, as a principal reason, that an ancient usage established in France, and followed in some other countries, ought not to be changed without necessity.
After a thorough examination, the usage of revendication has been recogoised to be a source of lawsuits, and a means of fraud, that wisdom would vainly try to regulate a usage which is founded neither in law nor equity, and that its greatest inconvenience was particularly to leave, by this privilege, the fate of creditors at the mercy of the bankrupt, who might, at his pleasure, favour one and sacrifice another, by preserving or altering the marks which could prove the identity of the goods which had been delivered to him, or in retarding or hastening the sale of them. On these considerations, it has been decided not to permit a revendication, except for merchandise in deposite for that which is in transitu, and which has not yet been mixt with other goods in the warehouse of the buyer; we admit it also for remittances of bills not yet due, or due and not yet paid, if these remittances have been made with a simple order to receive and keep the amount, subject to the disposition of the owner.
By this decision we hope to render an essential service to com. merce, prevent numberless lawsuits, and fulfil the wishes of the majority of the chambers and tribunals of commerce, whose opinion has been consulted.
Title IV. treats of simple bankruptcy; it appears to be demonstrated that in sanctioning the provisions contained in it, you will afford a most efficacious remedy to the scandal which has excited general indignation ; for it cannot be dissembled, that fraud is not the most common cause of this disorder ; ignorance, luxury, imprudence, are its real sources; and by the ancient law they enjoyed perfect impunity; whenever fraud was not proved, innocence was acknowledged ; the crime might be punished, but the immorality escaped. The new law imposes correctional penalties on the merchant whose private expenses have been excessive, who, though well knowing his embarrassed situation, has compromitted the fortune of his creditors by imprudeut speculations; he shall be even chargeable as a fraudulent bankrupt if he has not kept his books with regularity, and observed the formalities enjoined by the law. The name of bankrupt, which this law renders dreadful to him, will, we doubt not, be a powerful check; and if it do not alarm those guilty men, born for crimes, and whom nothing arrests, it will preserve from a ruinous fall weak men who every where constitute the majority,
It is therefore, in full confidence, that we propose to you this measure, which, in fact, will be more of a preventive than a rigorous nature, and which, submitted to the conscience of impartial and respectable judges, appears to us to be one of the most efficacious means to re-establish order, and restore good morals.
Chapter II. of this title, which relates to fraudulent bankruptcies, only developes in greater detail the provisions which are found on this subject in the ordinance of 1673.
The inflexible rigour of the law should be applied to every case mentioned in these articles, and it is unnecessary to make any observations on points which had not occasioned any difference of opinion.
The object of Chapter III. is to prevent private interest from being sacrificed to public vengeance, and the correctional or criminal proceedings against the bankrupt from delaying the progress of the liquidations, and injuring the interest of the creditors.
Title V. lays down the forms which the insolvent ought to pursue in order to obtain his restoration; we have rendered this restoration difficult; it will be the more honourable. When a man would be restored to honour, he ought to desire that nobody could doubt of his innocence, and honesty can never be afraid of
We have, gentlemen, just explained to you this new system of legislation, developed all the motives which have dictated its provisions; we have made you sensible of their importance; we hope that you will recognise their utility, and that in adopting them, you will fulfil the wise, just, and beneficent views of a monarch who wishes to eradicate every vice, as he has vanquished his enemies; who has begun his illustrious reign by his triumphs over anarchy, and who desires to crown his celebrity and our gratitude, by rendering to credit its power, to commerce its good faith, and by raising our happiness as high as his glory.
OF M. TREILHARD.
GENTLEMEN, The orator of the government, who has preceded me at this tribune, has exhibited to you the whole of the law in relation to failures; and the manner in which he has acquitted himself of liis mission, no doubt makes you regret that he has left me any thing to say : your regrets will be the less, because there remain for me but few subjects on which to discourse.
You have seen that at the moment a failure takes place, the person and estate of the insolvent are secured; the person, that he may answer for misdemeanors ; the estate that it may be distributed among his creditors.
Every thing is placed under the superintendence of a commis. sioner, whose character is a security for the choice of the agents and assignees, a strict proof of the debts, a speedy sale and at little expense; in short, every thing that can afford relief and consolation in a common misfortune.
I must now speak to you of the rights of creditors, of the dividends, of the liquidation of the personal property, and, finally, of the mode of selling the real estate of the insolvent : this is the subject of Chapters IX. X. and XI. of the first title.
I shall begin by what concerns the creditors in general; I shall conclude by the exposition of the rights of wives to the property of their husbands, in cases of failure.
This great principle, that economy both of time and of proceedings, has never been lost sight of, in the project now under consideration: it is particularly in commerce that a prompt return of funds is desirable; a tardy payment is never a complete payment.
The necessary measures have therefore been taken, in order that the first collections be employed without delay in the pay
ment of privileged debts : privilege ensures a preference in the payments; nobody has a right to retard them when once the privilege is recognised or adjudged: if there be any difficulty as to its existence, it belongs to the courts of justice to decide. Every creditor evidently has an interest, and, consequently, a right to discuss and dispute a pretension of privilege, which, if adopted, may often leave the simple contract creditors without any hope.
In the number of privileged creditors, must indispensably be classed be who has received a pledge; but it was necessary to leave to the will of the mass of creditors the right of redeeming the pledge, by reimbursing the person who had advanced money on it; he can have no other claim, and if the pledge exceed in value the amount due on it, the surplus belongs to the other cre. ditors.
You will doubtless remark, gentlemen, that I am considering only a few particular rules in regard to commercial matters; it forms no part of the project of the law to trace the constituent principles of privileged debts; they are already fully established in the Code Napoleon.
This reflection is applicable to the other species of debts, to mortgages, for example; the same code contains all the general rules on that subject, and the only question here is, concerning some particular difficulties which may arise.
You know that a mortgage creditor has the advantage of a preference in the value of the estate mortgaged to him; this preference is by no means exclusive of his rights, in regard to all the other property of the debtor.
He who is personally bound, is required to fulfil his engagements from the whole amount of his property, real and personal; it is all a common pledge to his creditors : this is the express provision of articles 2092. and 2093. of the Code Napoleon, which are indeed only the expression of what results necessarily from an obligation contracted: how can he who has bound himself in a contract, escape from its force as long as he has any property ?
The special lien of a debt upon real property gives, therefore,