|
Insolvency in South African law refers to a status of diminished legal capacity (''capitis diminutio'') imposed by the courts on persons who are unable to pay their debts, or (which amounts to the same thing) whose liabilities exceed their assets. The insolvent's diminished legal capacity entails deprivation of certain of his important legal capacities and rights, in the interests of protecting other persons, primarily the general body of existing creditors, but also prospective creditors. Insolvency is also of benefit to the insolvent, in that it grants him relief in certain respects.〔''Wille's'' 387.〕 In broad and everyday terms, a person is insolvent when he is unable to pay his debts. In legal terms, however, the test for insolvency is whether or not the debtor’s liabilities, fairly estimated, exceed his assets, fairly valued. Inability to pay debts is, at most, merely evidence, not conclusive in itself, of insolvency. A person who has insufficient assets to discharge his liabilities, although he satisfies the test for insolvency, is not treated as insolvent for legal purposes unless his estate has been sequestrated by an order of court. A sequestration order is a formal declaration that a debtor is insolvent. The order is granted either at the instance of the debtor himself (voluntary surrender) or at the instance of one or more of the debtor’s creditors (compulsory sequestration). The term “sequestration” should be used only with reference to a person’s estate. It is the debtor’s estate that is sequestrated, not the debtor himself. On the other hand, both the debtor’s estate and the debtor himself may properly be described as insolvent. When the word “insolvent” is used to describe a debtor, it carries two possible meanings—either # that the debtor’s estate has been sequestrated; or # that his liabilities exceed his assets. The notion of “becoming insolvent,” therefore, has a wider meaning than “being sequestrated.” == Purpose of a sequestration order == The main purpose of a sequestration order is to secure the orderly and equitable distribution of a debtor’s assets where they are insufficient to meet the claims of all his creditors. Executing against the property of a debtor who is in insolvent circumstances inevitably results in one or a few creditors being paid, and the rest receiving little or nothing at all. The legal machinery which comes into operation on sequestration is designed to ensure that whatever assets the debtor has are liquidated and distributed among all his creditors in accordance with a predetermined (and fair) order of preference. The law proceeds from the premise that, once an order of sequestration is granted, a concursus creditorum (a “coming together of the creditors”) is established, and that the interests of creditors as a group enjoy preference over the interests of individual creditors. The debtor is divested of his estate, and may not burden it with any further debts. A creditor’s right to recover his claim in full by judicial proceedings is replaced by his right, on proving a claim against the insolvent estate, to share with all other proved creditors in the proceeds of the estate assets. Apart from what is permitted in the Act, nothing may be done which would have the effect of diminishing the estate assets or prejudicing the rights of creditors. “The object of the Act,” held the court in Walker v Syfret NO, “is to ensure a due distribution of assets among creditors in the order of their preference (). The sequestration order crystalises the insolvent’s position; the hand of the law is laid upon the estate, and at once the rights of the general body of creditors have to be taken into consideration. No transaction can thereafter be entered into with regard to estate matters by a single creditor to the prejudice of the general body. The claim of each creditor must be dealt with as it existed at the issue of the order.” 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「South African insolvency law」の詳細全文を読む スポンサード リンク
|