Nelson Mandela University Bankruptcy Essay
1.In ancient history, in the East and the West, the inability to pay in full any debt incurred often resulted in the debtor becoming literally enslaved to the creditor. Julius Caesar is often credited (no pun intended) with the first major bankruptcy reform. His reform, deemed scandalous at the time, was that the debtor would remain free, however, the debtor would relinquish all of his property and 2/3 of all wages until the debt was paid in full. Debtors’ prisons did, however, make a return in the ancient common law and continued into the early 19th century. The U.S. Constitution made bankruptcy a federal civil (not criminal) issue and eventually abolished debtors’ prisons. The common law said the failure to repay a debt constituted theft. Modern law states that it is only theft if the unpaid debt was undertaken fraudulently or unpaid willfully. Should willful unpaid debt be considered a criminal or civil matter? How should debt through fraud be considered by the courts?
2.The Bankruptcy Reform Act of 1978 was enacted because of concerns that the prior act was too creditor friendly and did not provide enough protections to debtors unable to repay. Subsequently, the current Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was created. It is often criticized as being too creditor friendly, abolishing many of the protections provided by the 1978 Act. Two highly controversial provisions of the 2005 Act is that several types of debt are essentially non-dischargeable (such as student loan debt) and that, for median-earning wage earners, a payment plan of 3-5 years is required to pay of at least a portion of the debt. Critics claim that the current law destroys the primary goal of bankruptcy plaintiffs- that of providing a fresh start in exchange for relinquishing most personal property. Which is the better path?
3.Although the constitution mandates that bankruptcy law is a federal law and should be uniform throughout the states, the actual relief to a bankrupt plaintiff varies between the states. In other words, as an example, a bankrupt plaintiff in one state may lose her home in a bankruptcy, where in other states this would not be allowed. Should this be the case? Should both procedures and remedies be uniform or should the states determine what is and is not exempt property in a bankruptcy proceeding?
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|Preferred language style US English|