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20 Int'l Insolvency Rev. 1 (2011)

handle is hein.journals/intvcy20 and id is 1 raw text is: 








       Determining the Insolvent Estate -

                 A Comparative Analysis


                             Harry Rajak * t

                          Universiy of Sussex Law School, UK



                                 Abstract
This article is part ofa comparative research project inwhich the provisions ofseveral
different jurisdictions concerning the determination of the insolvent estate are
examined. In particular, this part of the project examines those provisions which
enable the administrator ofthe insolvent estate to seek to increase the size of the estate
by (a) setting aside pre-insolvency transactions and (b) seeking compensation from
those who allegedly were negligent or fraudulent in the management of the debtor
prior to the onset of the latter's insolvency. The overall purpose of the research study
is to establish a basis for the possible substantive harmonization of the different pro-
visions in those countries, which constitute the European Union. Copyright G
2011JohnWiley & Sons, Ltd.

                            I. Introduction

The genesis of this ongoing study was a conversation some three years ago with
Donna McKenzie Skene around the seemingly obvious observation that any serious
insolvency system had legal principles to facilitate the clawing back of assets to swell
the estate and the exempting ofassets from the estate. The former, in the advancement
of the principle of fairness and equal treatment of creditors, enables the examination
and, where appropriate, the setting aside ofpre-insolvency transactions. The latter, in
furtherance of a social concern enables the exclusion from the estate of assets necess-
ary, maybe even vital, for the post-bankruptcy life ofthe debtor. Clearly the former is
more likely to be (although not exclusively), connected with corporate insolvency,
whereas the latter, is exclusively concerned with personal bankruptcy.
   The ubiquity ofthese phenomena seemed to us to provide an opportunity for some
comparative research, which might meaningfully be taken across the common law/
civil law divide. Indeed, of the countries selected, South Africa and Scotland might


*E-mail: h.h.rajak@sussex.ac.uk
tEmeritus Professor.
Copyright (  2011JohnWiley & Sons, Ltd.               Int. Insolv. Rev.,Vol. 20:1 28 (2011)
                                                Published online inWiley Online Library
                                              (wileyonlinelibrary.com) DOI: 10.1002/iir.189

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