Le pardon des dettes comme moyen de maximiser la richesse: Approche critique des théories utilitaristes sur l’effacement des dettes

Our purpose in this piece is to critically probe the merits of the utilitarian theory that has dominated the legal literature on personal bankruptcy ever since law and economics came to prominence. As we argue, the utilitarian agenda that is ascribed to the personal discharge doctrines by law and economics scholars who work within the field of bankruptcy law raises both serious normative concerns and uncomfortable descriptive tensions. Together, these problems invite theorists to offer alternative accounts of the conditions under which our legal system provides relief to individuals who find their debts oppressive. In our forthcoming book, The Virtue of Bankruptcy (Oxford University Press), we do just that. Our project here has been to clear the way for that more ambitious project by demonstrating that the utilitarianism that undergirds the most prominent contributions to the literature to date leaves considerable room for improvement when it comes to understanding both why and under what circumstances we should give fresh starts to those who have failed to meet their financial obligations.