Commentary on the article “Bankruptcy with one creditor”

Commentary on the article “Bankruptcy with one creditor”

Maurycy Allerhand, Bankruptcy with one creditor, Polish Civil Procedure No. 3-4 / 1936 (part 1), No. 5-6 / 1936 (part 2).

Introduction

The article contains considerations – against the background of comparative law – concerning the requirement of a plurality of creditors in bankruptcy proceedings. The issue has been discussed in a broad context – both against the background of the laws in force in individual countries and from the point of view of the purpose and function of individual methods of pursuing claims in force in law.

Problem

The author tries to answer the following questions:
– Is it possible to declare bankruptcy when the debtor has only one creditor?
– Can bankruptcy proceedings continue with one creditor remaining or with only one entity filing its claim?

Abstract

The analysis includes a review of the legislation – pre-partition law and laws in force in foreign countries (including Austrian, Hungarian, Croatian, Yugoslav, Czechoslovakian, German and French laws, as well as references to Chilean and Peruvian law) from the point of view of the requirement of a plurality of creditors for bankruptcy proceedings. Then the author goes to the de lege ferenda postulates, discussing and justifying the appropriate solution to the problem, which – in his opinion, is the possibility of declaring bankruptcy and conducting proceedings only in the case of multiple creditors.

Then – in the second part of the article – M. Allerhand discusses the provisions of the Regulation of 1934, taking into account the course of legislative work and the final shape of the legal act. He argues that the regulations allow for declaring bankruptcy and conducting proceedings also when the debtor has only one creditor or when only one creditor participates in the proceedings. To justify this position, he refers to the act as a whole, as well as to the course of work of the codification commission on the legal act (including the deliberations on the draft of the co-author). The article also outlines solutions for the course of proceedings with a single creditor – taking into account institutions typical of collective participation of creditors in the proceedings (creditors ‘council, creditors’ meeting).

Summary

The article provides valuable considerations on one of the key issues in bankruptcy proceedings. It includes arguments and solutions for possible solutions to the discussed issue, as well as a rich overview of solutions used in foreign legislation. Reading it is also valuable today – because the dispute over the significance of the multiplicity of creditors is current, as evidenced by the controversy caused by the judgment of the Supreme Court of March 19, 2019, III UK 85/18.

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