The Economic Foundation of Debtor-Creditor Relations

The purpose of this study is to shed light, from a general legal theory’s perspective, on the essential role of three different fields of law regulating debtors and creditors relations: business organization law, secured transactions and bankruptcy law. In particular, the analysis offered in this volume – using both comparative law (through a constant dialogue between the common law and the civil law traditions) and economic analysis of law methodologies – allows to reach two main conclusions: (i) What truly characterizes organizational law, secured transactions law and bankruptcy law, their essential contribution to legal systems, is that they provide special rules of law (identified as “property laws”) – rules that are “good against the world” – that allow to achieve legal effects which cannot be practically established by contract alone. Among these effects, the segregation between: (a) owners’ personal creditors and firms’ creditors; (b) unsecured creditors and secured creditors; (c) first- in-time and later-in-time secured creditors; (d) prepetition and postpetition creditors. (ii) Once these three fields of law are observed through the lens of a common property-based paradigm, it is possible to shed light on a logical, communal continuum along which organizational law, secured transactions law and bankruptcy law can be disposed and analyzed. The realm of debtor-creditor relations offers interesting examples in which financial transactions are becoming the primary motivating force in breaching the long-established divergences of common law and civil law traditions and dictating uniform global solutions.