Η πτώχευση : οικονομική ανάλυση

Προβολή/ Άνοιγμα
Λέξεις κλειδιά
Αποτελεσματική αθέτηση της σύμβασης ; Αποτελεσματικότητα ; Kaldor-Higgs ; Pareto ; Πτώχευση ; Πτωχευτικό δίκαιο ; ΕλλάδαΠερίληψη
This paper examines the intersection of corporate bankruptcy, when initiated by the shareholders
of the entity, and the theory of efficient contract breach. It proposes that, when the shareholders
of a company file for bankruptcy, they commit a breach of the company’s Articles of Association,
in which they have agreed to maintain the company’s operations for a defined amount of time (let
it be definite or indefinite). In this context, filing for bankruptcy constitutes an abnormal devel-
opment of the company, disruptive for the economic and legal world, a development the share-
holders could have averted through alternative financing opportunities or even personal equity
capital injections. Yet, the shareholders make this deliberate choice to break the promise given to
the company, to all third parties and company creditors, as well as to themselves, and file for
bankruptcy.
This paper argues that this choice, this contract breach, is efficient, as per the efficient contract
breach theory, facilitating all parties to be better off thereafter. This is because the opportunity
cost of maintaining company’s operations is significantly higher than filing for bankruptcy, liqui-
dating company’s assets and paying off all creditors with the liquidation proceeds. Would it not
be unfair to force the shareholders to maintain company’s operations for a significantly higher
cost than originally anticipated? How is this just? Hence, the law itself embraces the efficient
contract breach theory, allowing for company bankruptcy, subject to the compensation of all com-
pany’s creditors. Furthermore, the possibility of compensation, namely in the scenario in which
not all company creditors are actually compensated, suffices the Kaldor/Hicks efficiency crite-
rion, and, therefore, does not affect the efficient character of the breach.


