Bankruptcy Law, Majority Rule, and Private Ordering in England and France (Seventeenth–Nineteenth Century)

Rather than evolving as a platform for renegotiation and debt discharge, as in France, English bankruptcy law emerged as a liquidation-only institution after majority arrangements among creditors were prohibited, in 1621. However, after 1705, good faith debtors could be offered a discharge, i.e. a form of limited liability. Later, private practices also developed into a little-known body of consistent, court-enforced, “quasi-bankruptcy rules” based however on voluntary adhesion. A key element was the convergence between the old, Law Merchant “composition agreement” and the English trust, to which creditors could jointly convey assets. By the 1780s, therefore, merchants were offered rigidity under the statutes or large, though voluntary negotiability in their shadow. Conversely, the French traders’ courts consistently helped the merchants overcome undue defaults, i.e. market failures. But majority vote limited the capacity to restructure rights and to design arrangements that may have better preserved their collective interest over time.