The Rationale of the Transaction Avoidance Provisions of the Insolvency Act 1986
The Rationale of the Transaction Avoidance Provisions of the Insolvency Act 1986
It is important to examine the rationale of the transaction avoidance provisions of the Insolvency Act 1986, as this will assist in interpreting such laws and will also enable an assessment of whether these laws are structured in an optimal manner. Often, legislative travaux préparatoires are useful in ascertaining legislative intent. However, the rationale of the transaction avoidance provisions of England and Wales is not something that can be easily detected from the government reviews of insolvency law that influenced the format of the Insolvency Act 1986. The tone of such reviews is largely pragmatic as far as transaction avoidance is concerned: the focus of the reviewers appears to have been on areas that were causing problems in practice at the time. This may have been because of a need to focus on bigger issues such as corporate rescue and the accountability of company directors. It may be that the reviewers did consider the rationale of the transaction avoidance provisions, and the manner in which they complement the objectives of insolvency law, but excluded such issues from the reports for economy of space in what was a thorough and wide-ranging report.
Keywords: anti-deprivation, asset distribution, guarantees, late executed floating charges, late executed floating, post-petition dispositions, preferences, surety, transactions defrauding creditors, transactions vulnerable outside insolvency, undue influence
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