A (Very) Brief History of Bankruptcy and Debt in the West

San Jose Chapter 13 Bankruptcy Committee Presentation on History of Bankruptcy and Debt in the WestThe Chair of the San Jose Chapter 13 Committee—a group of bankruptcy attorneys representing debtors in Silicon Valley—recently asked me and several of my colleagues to give presentations to the committee on the history of bankruptcy and debt in various cultures. I was asked to offer a brief history of bankruptcy and debt in Western society, from ancient times to our modern bankruptcy law in America. I’m sure all of my bankruptcy attorney colleagues covering this topic for other ancient and contemporary societies of the world would agree, a talk such as the ones we gave before the San Jose Chapter 13 Committee cannot possibly offer a comprehensive treatment of such a broad topic.

So my presentation was not intended to provide more than a cursory overview of some of the broader themes that have been associated with debt and bankruptcy in the West. The evolution of society’s attitudes toward debtors and bankruptcy through Western history follows a course of evolution from a highly stigmatized, criminal or quasi-criminal treatment of debtors to today’s more enlightened approach that recognizes the social value of offering a discharge of debt to those needing a fresh start. What follows below is a shortened, edited version of that presentation.

An Early Approach to Forgiveness of Debt

For ancient Hebrew society, among the 613 Commandments of Mosaic Law, was one that provided that every seven years, members of the community—but not foreigners—should be forgiven of all their debts. [1] This law was derived from the Book of Deuteronomy 15:1-3. These years of debt forgiveness were known as “Sabbatical” years. The year immediately following every seventh Sabbatical year (or 50th year) was known as a “Year of Jubilee” during which not only the debts of community members were forgiven, but likewise those of foreigners and even debt slaves were required to be freed.

This early approach of debt forgiveness in Hebrew society was something of an anomaly in its recognition of the social value in offering the periodic discharge of debt, however, in the ancient Western world. Ancient Greece and Rome took a decidedly harsher view of bankrupt individuals. It took until 1705 in England for discharge of debt to again become a regular facet of the legal treatment of debtors.

The Punitive Approach: Ancient Greece, Rome, and Medieval Europe

For centuries in ancient Greece, if an individual was unable to pay his debts then he, along with his wife, children and servants could be forced into servitude as debt slaves of the creditor until the debt was paid off.[2] However, this punitive approach toward the bankruptcy debtor eventually led to civil instability. As more and more ancient Athenians became debt slaves to their fellow Athenians, however, unrest rose to such a level that in 594 BCE significant concessions were made to the demos (people) including discharge of debts and the abolition of debt slavery.[3]

In ancient Rome, if one became insolvent and unable to pay his debts, Roman law “permitted the debtor’s creditors to dismember and distribute a debtor’s body to the creditors in proportion to the amount of debts owed to each.”[4] It is rather hard to see how such harsh punishment helped to compensate these ancient Roman creditors for their loss.

The term “bankruptcy” itself likely derives from late medieval and Renaissance Italy. The Italian “banca rotta” supposedly came from the term “broken bench.”[5] Merchants in the Italian city states of the time worked from a market stall or “bench.” According to folklore, if a merchant became insolvent, his creditors would literally break his bench.[6] While some question whether this actually happened, it is clear that the societal attitude toward the insolvent debtor that prevailed in Europe at the time was one that viewed the bankrupt as deserving punishment for his financial failure. However, according to Collier, the medieval Italians did offer some form of debt relief “for those who could not pay all their debts if they exposed their naked bodies in public and then banged their backsides on a public post while loudly proclaiming ‘I am bankrupt’ three times.”[7] While certainly shaming, this was preferable to the dismemberment of their Roman forebears. In France around the same time, debtors were required “to wear a Green Cap at all times so that others would know that they had not paid their debts.”[8]

England and the Colonies

Perhaps due to their Puritanical religious beliefs, the early American colonists were likewise contemptuous of, rather than sympathetic to, the economic plight of their community members who could not repay their debts. During this period, bankrupt debtors were often subjected to imprisonment, flogging, and “shaming practices, including publicly cutting the bankrupt’s hair, branding the debtor’s palm with the letter ‘T’ for ‘thief,’ and publicly piercing the debtor’s ear with a nail before cutting it off.”[9] These dour Puritans were after all the same people who burned witches at the stake, so their disdain toward debtors is hardly surprising.

In 1705, the concept of a discharge of debt finally made its way into English bankruptcy law, “when Parliament authorized creditors to grant a discharge as an inducement to cooperation.”[10] Nevertheless, the 1705 law did not allow bankruptcy debtors to initiate their own action for a discharge, and such a discharge was available only to commercial debtors, not individual consumers. Only involuntary, creditor-initiated bankruptcy was provided for under the law, and debtor prisons continued to exist in England until the 20th century. “In 1829, approximately 7,000 debtors were imprisoned in London. By 1921, the number had dwindled to about 400.”[11]

It would be unthinkable today, of course, for the vast majority of Americans to purchase a home, a car, or any other major purchase for cash, but while today nearly every commercial transaction may be financed on credit, personal credit was not widely available to the average person in ancient Greece, Rome or even in 18th Century England. In the case of the latter, personal credit was not only uncommon but frowned upon, “for the law holds it to be unjustifiable practice for any person but a trader to encumber himself with debts of any considerable value.”[12]

After the American Revolution, the framers of the U.S. Constitution specifically granted to Congress the power “To establish … uniform Laws on the subject of Bankruptcies throughout the United States.”[13] Indeed, James Madison wrote in No. 42 of the Federalist Papers that the “power of establishing uniform laws of bankruptcy is … intimately connected with the regulation of commerce…”[14] The attitude of the Framers, that bankruptcy goes part and parcel with the regulation of commerce, shows the beginning of a shift from a quasi-criminal treatment of bankruptcy debtors, to a more utilitarian approach that recognizes that there will inevitably be winners and losers in a market economy. Nevertheless, despite the fact that the Constitution specifically granted Congress the power to establish a federal bankruptcy law, it did not do so until the first Bankruptcy Act of 1800, which applied only to merchants, was enacted in response to major financial panics arising in 1792 and 1797 as a result of speculation. In those days, as bankruptcies were involuntary, there were no consumer bankruptcy attorneys as we have today to advocate for debtors. Many debtors had become imprisoned, including some “prominent citizens.”[15] In fact, two of the signers of the Constitution, Robert Morris and James Wilson had become deeply in debt. Morris spent three years in debtors’ prison until obtaining a discharge under the 1800 Act. Wilson, who was the first law professor at the College of Pennsylvania and appointed to the U.S. Supreme Court in 1789, fled Pennsylvania in order to avoid debtors’ prison. The 1800 Act was not intended to be permanent, but rather a short-term fix. Though it was set to expire in five years, Congress repealed it in 1803.

In fact, for the great majority of the nineteenth century in the United States, federal bankruptcy law did not exist, and debtors’ prisons still abounded. Two more temporary bankruptcy acts were later passed in 1841 and in 1867. The Bankruptcy Act of 1841 was again enacted in response to a financial crisis and it lasted less than two years. It did show shifting aims in public policy, however, in that for the first time American bankruptcy law provided for voluntary petitions by non-merchant debtors themselves.

The Bankruptcy Act of 1867 was again a reaction to economic crisis, this time brought about in the aftermath of the Civil War. It provided for both voluntary and involuntary bankruptcy petitions as well as petitions brought by non-merchant individual debtors. Individual bankruptcy involved a liquidation of his assets but allowed for $500 of exempted assets such as one’s necessary household and kitchen furniture, and clothing for his wife and children. Again, however, the Act was short lived. The 1867 Act was repealed in 1878 leaving American debtors again without a federal bankruptcy law.

The Bankruptcy Act of 1898, Congress’s fourth attempt at a uniform bankruptcy law for the country, remained the bankruptcy law of the land until the Bankruptcy Reform Act of 1978—the basis of today’s Bankruptcy Code. The 1898 Act eliminated the requirement that a debtor’s creditors give consent to his discharge and it did allow for state exemptions for a debtor’s assets.

Conclusion: Toward a More Civil, Pragmatic Approach

The partial removal of morality from the concept of bankruptcy, it can be argued was both a consequence of the rise of secularism after the European Enlightenment and also of the rise of capitalism. Although, dependent as the latter was on the former, this statement may seem redundant. As the concept of a “bankruptcy discharge” gained favor periodically during the 19th century in America, those arguing for it, “argued that society needed the discharge to protect risk-taking entrepreneurship, the sinew of a dynamic economy.”[16] In fact, such arguments had nothing to do with debt forgiveness as a benefit to consumers or the public at large, but rather as a safe guard for entrepreneurs. “The argument for bankruptcy as a risk-protection device paralleled the argument for limited liability in corporate law.”[17]

In the end, we must acknowledge that if the modern view of debt and bankruptcy has shed some of its quasi-criminal and highly stigmatized treatment of debtors, this is in part due to the fact that the creditor-debtor relationship has changed fundamentally. In modern capitalist societies—not just those of the West—the risk equation has changed drastically to favor the creditor at least as between institutional creditors and ordinary consumers. There has always been risk in lending to another. That risk is voluntarily assumed by the creditor under a calculus that while some borrowers will always default, the creditor will still on average enjoy the reward of repayment with interest. Today, the risk inherent in lending and extending credit has been allocated between the parties to the relationship much differently than it was in ancient Greece, Rome, or medieval and Victorian Europe. Today, institutional creditors, such as credit card companies, enjoy enormous bargaining power, are able to charge interest rates that would have shocked the conscience of earlier generations, and can rely on an insurance and reinsurance system to minimize their losses. No one denies that the financial services “industry” is more profitable than it has been at any time in human history despite the fact that debt is now a more widespread part of the human condition than at any time in human history. Furthermore, as individual consumer purchases drive approximately 70% of the U.S. economy, and given that without readily available personal credit an enormous amount of such economic activity would grind to a screeching halt, the availability of personal credit is now utterly essential to our economy.

It is today inappropriate then for modern civil society to stigmatize debt and bankruptcy on moral, quasi-religious grounds, precisely because creditors have gained such an enormous advantage over the average consumer and because modern consumer society would not function without widespread, readily available personal credit. In other words, it is disingenuous for the financial services “industry” to cry over comparatively small losses arising from debt discharged in bankruptcy when they have essentially shifted nearly all the risk of such loss back to the consumer. Losses that creditors incur due to default and bankruptcy have already been “baked in” to their business model, and they still enjoy enormous profit.

Obviously, there are certain areas of bankruptcy law that correctly penalize wrongful or fraudulent acts of debtors. These corners of bankruptcy law still provide for harsh punishment for those who attempt to lie or cheat in a bankruptcy proceeding or in the period leading up to one. In my experience such instances are relatively rare, and experienced bankruptcy attorneys are usually able to spot and screen such clients. While the possibility of criminal prosecution exists for such extreme examples, I would argue that for the vast majority of consumer bankruptcies today, involving honest debtors who for myriad reasons arising from the structure of our modern economy cannot pay some or all of their debts, bankruptcy lawyers, judges and trustees should take great care to avoid thinking about debt and debtors in moralistic terms.

Unfortunately, there remain legacy vestiges of such piety (and its urge to punish the debtor) riddled throughout the Bankruptcy Code. These generally come in the form of “gotcha” pitfalls that ensnare the bankruptcy debtor for innocent acts prior to filing bankruptcy such as the longer look-back period for repayment of debts to insiders provided in Bankruptcy Code §547(b)(4)(B) or the harsh definition of fraudulent transfers under Bankruptcy Code §548 even when the transferred item could have been exempted and there was no fraudulent intent. If we are to be intellectually honest about the reasoning behind the treatment of such constructively fraudulent transfers, and recognize that where the debtor could have exempted the transferred item, then we must acknowledge that the underlying motive for the rule is not to benefit creditors but rather to punish debtors. Additionally, the extraordinary favor granted to creditors owning even private student loans (as of BAPCPA) without a government guarantee whereby the same are more difficult to discharge than debts owed to the U.S. Treasury is nothing short of a lop-sided give-away to private banks without any public policy justification. Finally, the mere fact that a voluntary Chapter 7 cannot be dismissed as a matter of right, is something of a bizarre peculiarity in modern jurisprudence. These are just a handful of oddities that show a remaining punitive, moralistic legacy in our bankruptcy law.

In the end, however, we have come a long way since the dark days of debtors’ prisons, and our modern American bankruptcy law provides greater balance for the interests of creditors, debtors, and society at large than at any time in Western history.

[2] Id.

[3] David McNalley, Greek Lessons: Democracy Versus Debt Bondage, http://davidmcnally.org/?p=476

[4] Alan N. Resnick and Henry J. Sommer, eds., Collier on Bankruptcy, 16th Ed., 20.01[1] (2009 update)

[5] Id.

[6] Juliet M. Moringiello, Bankruptcy Issues, Law and Policy, 6th ed., American Bankruptcy Institute, 155 (2010)

[7] See Resnick and Sommer, supra at 20.01.

[8] Id.

[9] Rafael Efrat, Bankruptcy Stigma: Plausible Causes for Shifting Norms, 22 Emory Bankr. Dev. J., 481, 482, (2006)

[10] See Moringiello, supra, at 155.

[11] Martin A. Fray and Sidney K. Swinson, Introduction to Bankruptcy Law, 6th ed. (2012) at 2.

[12] 2 William Blackstone, Commentaries on the Laws of England *473-74, as quoted in Rafael Efrat, The Evolution of Bankruptcy Stigma, 7 Theoretical Inq. L. 365, 369 (2006).

[13] U.S. Const. art. 1, §8, cl. 4

[14] The Federalist No. 42, at 271 (James Madison) (Clinton Rossiter ed. 1961), cited in Resnick and Sommer, supra at 20.01[2].

[15] See Fray and Swinson, supra.

[16] See Moringiello, supra at 156

[17] Id.