Moratorium (law)

Moratorium ( Latin moratorium ), moratorium - the right to a deferred payment of a debt obligation granted in administrative or judicial procedure (as opposed to a contractual delay). Distinguish between a special moratorium provided in a specific legal relationship , and a general (general) moratorium, when due to disasters (war, crisis, epidemic) that have occurred, the current laws on obligations are temporarily suspended and all residents of the country are delayed their debts ^[1] .

Content

Origin

The custom of granting debtors a moratorium on paying debts arose in imperial Rome - Emperor Constantius I and his successors deferred debts to persons standing close to the courtyard ( Latin quinquennale spatium or quinquennale inducise ). Grazian , Valentinian II and Theodosius faced with an already formed tradition, which they tried to bring into the system ^[1] . Finally, Justinian ruled that if most lenders find a request for a deferment of dignified satisfaction, the minority is considered bound by this decision, and the delay should not exceed 5 years ^[2] .

Under the influence of Roman law, a moratorium appeared in the XIV century and in Western Europe as a privilege , which was given in abundance to bankrupt nobles . In the Middle Ages, an even broader concept of the indult arose , which meant first a delay, and then generally any privilege ^[3] . Gradually, the moratorium becomes a legal institution provided for by the laws of the country as one of the conditions for the insolvency procedure ^[1] .

General moratorium

The application of a general moratorium is not some kind of system; therefore, only the most famous cases can be listed to illustrate it. In particular, at the conclusion of the Tilsit Peace of 1807, the debts of the Prussian landlords were delayed for more than 10 years. At the beginning of the Franco-Prussian War , on August 13, 1870, a law was promulgated that delayed for one month the right to demand all monetary business transactions concluded on the day the law was issued, and the right to claim debts from persons called to defend the Fatherland was delayed until the end of the war. April 16, 1871 the deferral of payments on bills was confirmed by the Council of the Paris Commune ^[1] .

In 1891, during the financial crisis in Portugal , a moratorium of 60 days was established for bill and other indisputable debts ^[1] . A well-known example of a general moratorium was the so-called American Emergency Bank Act of 1933 declared during the Great Depression . "Banking holidays."

In Russia, general moratoria were carried out in the form of flight certificates, which the government complained in exceptional cases to entire classes. December 24, 1771 was followed by a Senate decree "on the non-payment of late bills and mortgages, not protested and not shown on the occasion of a contagious disease in Moscow" during the whole time that the pestilence rages. Upon termination of the “pestilence” and with the opening of public places to pay off debts, a period of 3 more months was given. Similar orders were issued during the cholera epidemic of 1830-1831 regarding debtors of a commercial bank. By a decree of January 15, 1832, residents of the north- and south-western provinces who were most affected by the Polish uprising were given the highest “certain benefits in relation to judicial terms and debt payments” ^[1] . During the 1998 economic crisis, the fulfillment of obligations to non-residents on loans , derivatives transactions and collateral transactions was suspended for 90 days ^[4] .

Special moratorium

France

Initially, the French kings applied a general moratorium. Thus, Philip II Augustus granted all Christian debtors a moratorium on their Jewish creditors, and Louis IX granted a 3-year delay to all debtors who were on the crusade . But later this measure began to be applied on isolated occasions, through the issuance of special royal letters (French lettres de répit ). In view of the resulting mass abuse, the 1667 ordinance brought some order to the moratorium. The Insolvency Act of 1838 approved the provision that, from the moment of official recognition of the debtor insolvent, the flow of interest on the claims of creditors stops ^[5] .

Belgium , influenced by French law, nevertheless made two important improvements to the moratorium: the competition code of 1851 provided for a deferred payment of debts ( French sursis des paiements ), and the law of 1883 allowed for a minority lender of the world deal to prevent the announcement of insolvency ( French concordat préventif ) ^[6] .

Germany

In Germany, the right of the moratorium ( Latin litterae respirationis , rescripta moratoria , German Ausstandsbriefe , etc.) was ruled by the emperor and the sovereign electors. The arbitrary distribution of the moratorium caused discontent among the people, therefore the imperial charters of the 16th century try to determine the conditions under which a moratorium can be given. These decisions were developed in detail in the Prussian court order of 1794 , according to which a moratorium was given only by the court and only to those debtors who, having become insolvent by virtue of a combination of unfavorable circumstances, present a guarantee that they will be able to satisfy the creditor after a certain time ^[1] .

Russia

Already Russian Truth provided for the provision of installment plans to a merchant whose goods would suffer from force majeure (water, fire or plunder) ^[7] . The lawyer of 1497 repeated this rule: according to it, the sovereign boyar was authorized to give a "flight certificate" to the merchant, who received the goods on credit and became insolvent due to the death of the goods on the road from some natural disaster ^[1] . The first Russian Bankruptcy Charter of 1800 provided that, by unanimous decision of all creditors, an out-of-court transaction with the debtor regarding a discount on the debt or a deferment of payment is possible. The delay “for dressing” could also be given by the court with the consent of the lenders present ^[7] .

The modern Russian legislation specifically stipulates a moratorium on satisfying the requirements of bankruptcy creditors in the external management procedure (Article 95 of the Federal Bankruptcy Law).

Moratorial interest

Moratorial interest ( French intérêts moratoires ) is one form of reimbursement to the creditor of losses incurred during the moratorium. In Russian law, this term appeared in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 6, 2013 No. 88 “On the calculation and payment of interest on the requirements of creditors in bankruptcy”, which gives an interpretation of a number of provisions of the Federal Law “On insolvency (bankruptcy)” introduced in 2008 year ^[8] .

Notes

↑ ¹ ² ³ ⁴ ⁵ ⁶ ⁷ ⁸ Khienkin D.I. Moratorium // Encyclopedic Dictionary of Brockhaus and Efron : 86 volumes (82 volumes and 4 additional). - SPb. , 1890-1907.
↑ G. Shershenevich F. § § 182. Roman law // The course of commercial law . - M .: Statute, 2003 .-- T. IV. Trading process. Competitive process. - 550 s. - (Classics of Russian civil law). - 5,000 copies.
↑ Indult // Brockhaus and Efron Encyclopedic Dictionary : in 86 volumes (82 volumes and 4 additional). - SPb. , 1890-1907.
↑ 1998 Default in Russia. Help (unspecified) . RIA Novosti (August 17, 2010). Date of treatment May 23, 2014.
↑ G. Shershenevich F. § § 184. French law // The course of commercial law . - M .: Statute, 2003 .-- T. IV. Trading process. Competitive process. - 550 s. - (Classics of Russian civil law). - 5,000 copies.
↑ G. Shershenevich F. § § 187. Legislation of other countries // The course of commercial law . - M .: Statute, 2003 .-- T. IV. Trading process. Competitive process. - 550 s. - (Classics of Russian civil law). - 5,000 copies.
↑ ¹ ² Shershenevich G.F. § 188. Russian law // The course of commercial law . - M .: Statute, 2003 .-- T. IV. Trading process. Competitive process. - 550 s. - (Classics of Russian civil law). - 5,000 copies.
↑ Khavina A. Oleg Zaitsev: “The undue claims of creditors participate in the competition, but at a discount if they are interest-free” // Economics and Life : Newspaper. - M. , January 17, 2014.

Literature

Giulio de la Morandière L. Moratorio // French Civil Law: In 3 volumes = Précis de droit civil. - M .: Inoizdat , 1960 .-- T. 2 .-- S. 627-628. - 728 s.
Khienkin D.I. Moratorium // Encyclopedic Dictionary of Brockhaus and Efron : 86 volumes (82 volumes and 4 additional). - SPb. , 1890-1907.
Shershenevich G.F. Commercial law course: In 4 volumes . - M .: Statute, 2003 .-- T. IV. Trading process. Competitive process. - 550 s. - (Classics of Russian civil law). - 5,000 copies.

[ЭСБЕ-1] ¹ ² ³ ⁴ ⁵ ⁶ ⁷ ⁸ Khienkin D.I. Moratorium // Encyclopedic Dictionary of Brockhaus and Efron : 86 volumes (82 volumes and 4 additional). - SPb. , 1890-1907.

[2] G. Shershenevich F. § § 182. Roman law // The course of commercial law . - M .: Statute, 2003 .-- T. IV. Trading process. Competitive process. - 550 s. - (Classics of Russian civil law). - 5,000 copies.

[3] Indult // Brockhaus and Efron Encyclopedic Dictionary : in 86 volumes (82 volumes and 4 additional). - SPb. , 1890-1907.

[4] 1998 Default in Russia. Help (unspecified) . RIA Novosti (August 17, 2010). Date of treatment May 23, 2014.

[5] G. Shershenevich F. § § 184. French law // The course of commercial law . - M .: Statute, 2003 .-- T. IV. Trading process. Competitive process. - 550 s. - (Classics of Russian civil law). - 5,000 copies.

[6] G. Shershenevich F. § § 187. Legislation of other countries // The course of commercial law . - M .: Statute, 2003 .-- T. IV. Trading process. Competitive process. - 550 s. - (Classics of Russian civil law). - 5,000 copies.

[РП-7] ¹ ² Shershenevich G.F. § 188. Russian law // The course of commercial law . - M .: Statute, 2003 .-- T. IV. Trading process. Competitive process. - 550 s. - (Classics of Russian civil law). - 5,000 copies.

[Зайцев-8] Khavina A. Oleg Zaitsev: “The undue claims of creditors participate in the competition, but at a discount if they are interest-free” // Economics and Life : Newspaper. - M. , January 17, 2014.