Mass Justice
Show Less

Mass Justice

Challenges of Representation and Distribution

Edited by Jenny Steele and Willem H. van Boom

This insightful book considers phenomena such as mass torts, which affect numerous victims, and complex insolvency cases, which concern multiple and often competing interests.
Show Summary Details
You do not have access to this content

Chapter 9: Dealing with Damages in Insolvency: The Insolvency Administrator’s Collective Claim for Damages versus Individual Claims of Creditors

Frank M.J. Verstijlen


Frank M.J. Verstijlen INTRODUCTION 1. Insolvency law is – at least in part – aimed at distribution.1 In order to prevent the chaos of individual creditors taking recourse against separate assets of the debtor, insolvency law provides for a collective procedure through which the proceeds of the entire estate of the debtor are distributed among the creditors according to the order of their priority.2 Liability law is aimed at compensation of damage caused by the wrongful act of an injuring party. In principle the victim is put in the position where he would have been, had the wrongful act not taken place. Liability law has a role to play in insolvency situations. This is the case when the wrongful act causes damage to the creditors. Particular problems arise when the debtor himself does not have a claim against the wrongdoer, e.g. when he himself has initiated the wrongful act. In these cases the insolvency administrator – at least in some legal systems – may have a claim against the wrongdoer regarding his duty to represent the interests of the creditors. In these cases the distributional principles of insolvency law and liability law may collide. When the recovered amount flows into the insolvency estate and is distributed to the creditors according to the order of their priority, the result may be that some creditors receive more than the amount of their actual damage, e.g. because a creditor has purchased the claim for less than its nominal value. On the other hand, if the insolvency administrator...

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information

or login to access all content.