Transaction Avoidance in Insolvency Law


Past, Present and Future of the Actio Pauliana

Artikelnummer: 978-90-8863-240-2 Categorie: Tag:


This books explores the possibilities of harmonisation of avoidance rules in insolvency at European Union level by way of a comparative and historical research. The following aspects of transaction avoidance are (historically) examined in particular: the acts subject to transaction avoidance provisions, the voidability of security rights, the conditions set for avoidance of an act, the existence and duration of a suspect period, the treatment of acts performed in favour of related persons of the debtor, the persons entitled to bring an avoidance action, the effects of avoidance regarding the litigious act and, lastly, the acts exempted from nullification.
The author first examines the transaction avoidance rules of the Netherlands and France as they stand after which the divergence (and convergence) between the rules of these states is assessed. In order to examine how this divergence came to be, the most notable developments of the provisions on transaction avoidance in insolvency are mapped out by the author. Post-classical Roman law forms the starting point of this research, followed by ancient Dutch and French law. Subsequently, the author describes the development of the practice of and provisions on transaction avoidance during the age of codification. Lastly, the provisions laid down in modern insolvency laws are touched upon. From the comparative-historical examination, the possibilities to harmonise transaction avoidance provisions are assessed. Finally, these possibilities are checked against the recommendations regarding transaction avoidance provisions of the UNCITRAL Legislative Guide on Insolvency Law.

S.H.A.M. Hendrix is a lawyer at AKD N.V., where he is a member of the Litigation & Insolvency team.

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