This section provides for the repeal of the enactments mentioned in the Second Schedule to the extent mentioned therein. It also ensures the continuance in force of any petition, summons et ceteramade or issued under a repealed enactment and in force at the commencement of the Act as if it had been made or issued under it.
SECTION 6.
Question proposed: " That section 6 stand part of the Bill".
This is essentially providing for order in the transfer to this new Act and making the appropriate arrangements? It is not bringing any particular changes? Any of the Acts that are being repealed here are either carried forward into the present Bill or there may be some aspects of them being removed? Would the Minister like to tell us about them?
The question regarding repeals is covered in the Second Schedule. I have a note on the Second Schedule. For the information of the committee it might be better to read it:
The Second Schedule repeals, pursuant to section 6 subsection (1) the main bankruptcy enactments, of 1857, 1872 and 1889. The repeal of the Local Bankruptcy (Ireland) Act 1888, involves the abolition of the Cork local bankruptcy court, which was a major recommendation of the committee. The Deeds of Arrangement Amendment Act, 1890, is being repealed because the Deeds of Arrangement Act, 1887, will no longer apply to arrangements under the control of the Court — see section 109. The repeal of sections 11 and 12, and 14 to 22, of the Debtors Act (Ireland), 1872, is consequential on the consolidation of the bankruptcy offences in Part VI.Section 12 of the Court Officers Act, 1926, has been repeated in substance in section 60 subsection (1). The repeal of section 3 of the Circuit Court (Registration of Judgments) Act, 1937, and section 26 of the Courts Act, 1981, which applied section 336 of the 1857 Act to judgments and decrees of the circuit court and district court, are consequential on the repeal of section 336. That section provided that if at any time after 21 days from the entering or signing of any judgment in any of the superior courts a petition of bankruptcy was filed against or by the judgment debtor under which petition he was adjudicated, then in such case unless the judgment was registered within 21 days from the entering or signing, the judgment and any execution thereon was deemed fraudulent and void and the assignees were entitled to recover and receive for the creditors of the bankrupt all moneys levied or property received under the judgment or execution.
The committee regarded the section as unworkable and recommended that it should not be re-enacted. Section 17 subsection (1) of the Hire-Purchase Act, 1946, and section 32 subsection (3) of the Agricultural Credit Act, 1947, are being repealed in consequence of the repeal of the provisions relating to the doctrine of reputed ownership. The committee recommended the abolition of the doctrine of reputed ownership —"order and disposition"— which in effect makes available to the official assignee for distribution among the creditors any property of which the bankrupt was reputed owner and on the basis of which he had obtained credit. The committee took the view, that the growth of hire-purchase in the twentieth century made the doctrine and its foundation obsolete. The reference in the Arbitration Act, 1954 to the creditors' assignee, trustee in bankruptcy and committee of inspection are being deleted as the creditors' assignee will no longer have power to disclaim a contract and the trustee clauses, i.e., clauses in the 1872 Act whereby a bankrupt's estate could be wound up by a trustee and committee of inspection instead of by the official assignee are being abolished because they were never availed of.
The amendment to section 286 subsection (1) of the Companies Act, 1963, arises from the fact that the date of adjudication and not petition will be the critical date for various purposes under the Bill. Sections 284 subsection (2) and 345 subsection (8) of that Act are being re-enacted with amendments in sections 51 subsection (2) and 37.
The repeal of section 28 subsection (2) of the Central Bank Act, 1971, which provides that the act of bankruptcy created by that section may be availed of for a period of six months, is consequential on the reduction of that period to three months section 11 subsection (1).
That is what is involved in the Second Schedule. Section 6 here provides for the repeal of the various enactments which I have mentioned now to the extent that I have indicated in the note I have read out. It also, as I have said, ensures the continuance in force of any petition or summons made or issued under a repealed enactment and in force at the commencement of the Act as if it had been made or issued under it. So, it preserves anything that is in process under the previous legislation. It repeals anything which is either being re-enacted or changed under the provisions of this Bill.
I would like to thank the Minister for that explanation, and it certainly brings out a lot of what is happening in the repealing and consolidating here. Could the Minister tell us what is the present position with the Cork bankruptcy court? It had presumably very few cases in recent times. Could he tell us what the position is?
The Cork court is infrequently used. The normal situation now is that bankruptcy queries would be referred to Dublin. There was only one case in Cork in the last 12 months. It is a facility which is not availed of to any great extent. Certainly it will not cause any diminution in the status of Cork city during the "Cork 800" celebrations.
I was not suggesting that it might. Usually in committee proceedings, there is information in the brief which tells the Minister a little more about the situation. That explains that fairly thoroughly. Could I ask the Minister to expand a little on the question of "reputed ownership"— making available any property in which an individual is reputed to have an interest? The Minister mentioned if a person has used the suggestion that he has a title in a property for credit purposes. That is—
What section?
In the Minister's reply just a minute ago on the repeals. I was just asking if he could tell us more about the meaning of the word "reputed", the number of principal instances in which it is likely to arise.
If I could refer you to the explanatory memorandum in paragraph 8, it says that the doctrine of reputed ownership ("order and disposition") is not being re-enacted, that is, the provision making available for distribution to the creditors any property of which the bankrupt with the true owner's consent was reputed owner on the basis of which the bankrupt had obtained credit is not being retained. I will give you a fuller explanation. Chapter 61 of the Bankruptcy Law Report deals with it at very geat length and in very great detail. It is chapter 61 on page 377 and subsequent pages. It deals with the present provision and the objects of the section and then the development of the provision both in England and in Ireland and various judicial comments on the section and views of committees: the Doyle Committee and the Robb Committee and the Blagden Committee, and the views of the Irish Trade Protection Association Ltd. It is quite a number of pages. I will read them out, or is the reference sufficient?
I think the note in the explanatory memorandum seems to indicate that it is related particularly to instances where a person obtained credit on the basis of such reputation, if you like. It says "with the true owner's consent was reputed owner and on the basis of which the bankrupt had obtained credit".
Chapter 61 of the report here — I am quoting from the second paragraph, 61.2.1 — says "the original object of the section was to prevent a trader obtaining credit unjustly". This he did by displaying as his, property belonging to another, thereby misleading those who dealt with him. There is a reference to Lord Redesdale in Jury versus Campbell 1804. He said it was “to prevent deceit by a trader from the visible possession of property to which he was not entitled”.
But this in effect would allow the recovery of making available any such property in which a person was reputed to have an interest or on which a person had obtained credit by way of such reputation.
Well, it is a provision, as I understand it, which the Committee considered was not worth retaining so it is not being re-enacted. They considered it obsolete in view of the development of credit.
Question put and agreed to.