In Re Bonacina Le Brasseur v Bonacina - Thomson Reuters

[1912] 2 Ch. 394 Page 41912 WL 17417 (CA)(Cite as: [1912] 2 Ch. 394)the special provisions of the Act of 1849, which arevery different to s. 30, sub-s. 3, of the Act of 1883.There was a new contract here enforceableaccording to Italian law. It was made in Italy inItalian form and language, both the parties to itwere Italians, and it was intended to be performedin Italy. It is not contrary to public morals or publicpolicy and will therefore be enforced in thiscountry.FN21 3 H. & N. 581.has no application, and further that the moralobligation to pay the debt is sufficient to found alegal obligation if a document such as the "privatascrittura" has been executed. It seems to me,therefore, that the claimant is in precisely the sameposition in this country as he would have been ifthere had been an English contract of the same datewith a new and valuable consideration. In short, theclaimant relies upon a new and enforceablecontract entered into after the discharge andtherefore not in any way subject to the provisionsof s. 30, sub-s. 3.Cur. adv. vult.FN22 4 Ex. D. 26.July 2. COZENS-HARDY M.R.This is an appeal from a decision of Eve J., whohas disallowed a claim in an administration action.The testator and the claimant were both Italians.The testator, who was resident in England, wasadjudicated bankrupt in 1897 and obtained hisdischarge in 1901. The claimant had made variousadvances to the testator prior to the discharge. Noproof was made by the claimant in the bankruptcy,for the best possible reason, that he was not awareof the bankruptcy. On October 15, 1906, adocument was executed in Italy by which thetestator acknowledged his debt to the claimant asbeing 43,959 lire, which sum he undertook to paywithin five years with interest. This document,which is called "privata scrittura," was to bedeemed to be a public instrument. It was contendedon behalf of the executor that by virtue of s. 30,sub-s. 3, of the Bankruptcy Act, 1883, noproceedings could be taken in England in respect ofthis debt, and Eve J. has assented to this view.It is important to observe that the order ofdischarge only released the bankrupt from debtsprovable in bankruptcy and that sub-s. 3 has nooperation except in respect of a debt from whichthe bankrupt was released by the order ofdischarge: as to which see s. 37, sub-s. 3. It hasbeen held by a Divisional Court in Jakeman v.Cook [FN22], and by Vaughan Williams J. *400 inIn re Aylmer [FN23], that a promise after dischargeto pay a debt barred by the discharge is perfectlygood if supported by a new and valuableconsideration. If therefore in 1906 an Englishcontract for value had been executed, I think theproof must plainly have been admitted. But the"privata scrittura" is a document subject to Italianlaw, and the evidence adduced by Italian lawyersseems to me to have established that according tothe law of Italy the English doctrine ofconsideration being necessary to support a contractFN23 1 Manson, 391; 70 L. T. 244.I was for some time pressed by the decision inKidson v. Turner [FN24], but that case reallyturned upon the language of s. 204 of theBankruptcy Act, 1849, which differs materiallyfrom s. 30 of the present Act. The words there werethat no bankrupt after his certificate should beliable to pay any debt from which he will havebeen discharged by virtue of his certificate "uponany contract, promise, or agreement made after theissuing of the fiat or filing of the petition foradjudication," and it was there held that a bondgiven by a bankrupt in consideration of a debt fromwhich he had been discharged was, within themeaning of that section, a contract or agreementafter the issuing of the fiat or filing of the petitionfor adjudication. It seems to me that that case isreally no authority upon the present case. Nor do Ithink that the decision of the Divisional Court inHeather & Son v. Webb [FN25] has anyapplication. In that case there was a contractwithout any consideration to pay a debt barred bythe bankruptcy. In the present case there is a validenforceable new contract subsequent to thedischarge.FN24 3 H. & N. 581 *401 .FN25 2 C. P. D. 1.In the view which I take, it is not necessary toconsider many of the interesting and importantquestions discussed by Mr. Lawrence in his ableargument. For these reasons I think that thedecision of Eve J. must be reversed, and the claimmust be allowed and the Master's certificate variedaccordingly.Copr. © West 2004 No Claim to Orig. Govt. Works