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Globalization, Bankruptcy and
the Myth of the Broken Bench
by
Sandor E. Schick*
Since Chapter 11 of the Bankruptcy Code first took effect in the United
States in 1979, it has been a basis for bankruptcy reform around the world.,
Chapter 11 has inspired imitation largely because of its central purpose, reor-
ganization of the debtor. 2 Chapter 1il's concern with rehabilitation contrasts
with another approach that prevailed in the United States, and elsewhere,
*J.D., Columbia University Law School, 1985; Ph.D., Harvard University, 1982. The author, who is a
member of the bankruptcy and reorganization practice of Shearman & Sterling LLP, thanks Professor
Steven A. Epstein, Ahmanson-Murphy Distinguished Professor of Medieval History of The University of
Kansas, and Mr. Mark Harty, of LCS & Partners in Taipei, for their helpful comments.
'Chapter 11 is codified at 11 U.S.C. § 1101 et seq. (2000), although certain other provisions of the
Bankruptcy Code are also applicable in Chapter 11 cases. Chapter 11 and the other main elements of the
current code were contained in the Bankruptcy Reform Act of 1978, which took effect on October 1,
1979. For amendments to Chapter 11 since the 2000 codification, see 11 U.S.C.A. § 1101 et seq. (West
2001 & Supp. 2006). Countries that have amended their bankruptcy law to incorporate principles drawn
from Chapter 11 include France, Japan, and Korea. For France, see, e.g., Eric Cafritz & James Gillespie,
French Bankruptcy Law Assessed, INT'L FIN. L. REV., Dec. 2005, at 41 ("the centrepiece of the [new
French insolvency] act is an entirely new procedure, called the safeguard (sauvegarde) procedure, inspired
by the US bankruptcy system's Chapter 11 process"). For Japan, see, e.g., Jun'ichi Matsushita, Current
Japanese Insolvency Law and the Comprehensive Reform Project, in INDONESIA: BANKRUPTCY, LAW RE-
FORM & THE COMMERCIAL COURT 125, 129 (Timothy Lindsey ed., 2000) (noting that the Civil Rehabil-
itation Law that took effect in 2000 "is derived from the 'debtor-in-possession' ('DIP') system in Chapter
11"). See also Harvey R. Miller & Chai Y. Waisman, Does Chapter 11 Reorganization Remain a Viable
Option for Distressed Businesses for the Twenty-First Century?, 78 AM. BANKR. L. J. 153, 199- 200 (2004)
(noting movement of countries in Europe "towards a reorganizational model similar to the Chapter 11
debtor-in-possession model"); Theo Raaijmakers, Towards a Further Revision of Dutch Insolvency Law, in
COMPARATIVE AND INTERNATIONAL PERSPECTIVES ON BANKRUPTCY LAW REFORM IN THE NETHER.
LANDS 3, 3 (Reinout D. Vriesendorp et al. eds., 2001) ("debate" on reform of Dutch bankruptcy law "was-
inspired by" Chapter 11).
2
See, e.g., ANKER SORENSEN & PAUL J. OLMAR, CORPORATE RESCUE PROCEDURES IN FRANCE 3
(1996) (noting that "[c]orporate rescue is a term that owes its origins to the development of the law in
relation to the insolvency of companies in the United States-). The statutory purpose of Chapter 11 is
succinctly conveyed by its title, "Reorganization." Of course, the purpose can only be given effect through
particular provisions of the Chapter, such as the automatic stay and the debtor in possession. The auto-
matic stay, 11 U.S.C.A. § 362 (West 2001 & Supp. 2006), generally bars collection and enforcement
actions by creditors after a bankruptcy case commences. This stay applies to all cases under the Bank-
ruptcy Code, not just Chapter 11. In many countries, commencement of a bankruptcy proceeding ordina-
rily compels the displacement of existing management by a trustee, receiver or administrator; in Chapter
11, in contrast, the debtor's management remains in place absent an order of the court otherwise providing.
This result follows from 11 U.S.C. § 1101(1) (2000).
220 AMERICAN BANKRUPTCY LAW JOURNAL (Vol. 80
before the emergence of Chapter 11, 3 in which the principal purpose of bank-
ruptcy was to liquidate the debtor's property for the benefit of creditors, and
in which punishment of the debtor was often a correlate of liquidation. 4 The
international diffusion of Chapter 11 is seen by some as the culmination of an
historic process that began with the introduction of discharge in England in
1706, advanced with the inclusion of discharge and voluntary bankruptcy in
the first "permanent" national bankruptcy law in the United States in 1898,
and has accelerated since the advent of Chapter 11 in 1979. 5 The spread of
Chapter 11 is thus understood in some quarters as part of the march of pro-
gress, an affirmation of the American approach to bankruptcy, 6 and an inevi-
table incident of globalization.7
'Reorganization was possible under the predecessor statute of Chapter 11, and in particular Chapter
X, Chapter XI and Chapter XII of the Bankruptcy Act of 1898, as amended by the Bankruptcy Acts of
1933 and 1934, as well as the Chandler Act of 1938, and indeed even before that, at least for railroads,
under equity receiverships. Individuals and partnerships could file under chapter XI or, if they owned
property encumbered by mortgages, under chapter XII. "Business reorganizations [were] governed princi-
pally by chapters X and XI, both of which [were] adopted by the Congress as part of the bankruptcy
reforms in 1938. These chapters were not intended to be alternate paths of reorganization; they were to be
mutually exclusive. Chapter X was meant for the reorganization of public companies and chapter XI for the
rehabilitation of small and privately owned businesses." S. Rep. No. 95-989, at 9-10 (1978). But in prac-
tice, prior to the advent of Chapter 11, corporate reorganization was a relatively infrequent occurrence: in
the period of 32 years from 1939 through 1970, a total of only 3,768 cases were filed under Chapter X, for
an annual average of about 118 cases. DAVID A. SKEEL, JR., DEBT'S DOMINION: A HISTORY OF BANK-
RUPTcy LAW IN AMERICA 126 (2001). In contrast, in the fourteen-year period from 1990 through 2003,
Chapter 11 filings averaged almost 14,000 cases each year. See Edward Flynn & Gordon Bermant, Related
Chapter 11 Filings, AM. BANKR. INST. J. June 2004, at 20, availableat http://justice.gov/ust/eo/public..
affairs/articles/docs/abi_0504.pdf.
4
This was epitomized by the imprisonment of debtors. For the United States, the standard work on
debtors' prison is PETER J. COLEMAN, DEBTORS AND CREDITORS IN AMERICA. INSOLVENCY, IMPRISON-
MENT FOR DEBT, AND BANKRUPTCY, 1607 - 1900 (1974). For England, see, e.g., Jay Cohen, The History
of Imprisonment for Debt and Its Relation to the Development of Discharge in Bankruptcy, 3 J. LEG. HIST.
154 (1982).
'Miller & Waisman, supra note 1, at 154, 157. See also John C. McCoid, II, Discharge: The Most
Important Development in Bankruptcy History, 70 AM. BANKR. L. J. 163 (1996); Andrew J. Duncan, From
Dismemberment to Discharge: The Origins of Modern American Bankruptcy Law, 100 COM. L.J. 191
(1995).
6
For a typical formulation, see, e.g., Duncan, supra note 5, at 191 ("each year, American bankruptcy law
provides an efficient and humane method for thousands of individuals and businesses to ...start anew....
[I]t was not always so"). This view has a long pedigree. See, for example, Israel Trieman, The Law and
the Insolvent Debtor, 12 ST. Louis L. REV. 189, 191 (1927), who wrote, even before statutory provision
for corporate reorganization had been made in the United States, that "the extraordinary solicitude of our
law for the unfortunate debtor is a comparatively recent appendage of the law of bankruptcy - and is
largely an Anglo-American development."
7
SKEEL, supra note 3, at 243 ("The important point, however, is that all of the pressure unleashed by
globalization is pushing in this direction. All around the world, other nations are beginning to adopt some
of the features of U.S. bankruptcy law.") But the causes of this process-the nature of the 'pressure
unleashed by globalization"-are open to discussion. Although adoption of the American model has usu-
ally been a result of voluntary processes, in at least several cases external pressure-from the International
Monetary Fund-has been the primary impetus. For example, in the wake of the financial crisis suffered
by Korea in 1997, the International Monetary Fund and the International Bank for Reconstruction and
2006) THE MYTH OF THE BROKEN BENCH
In this view, before the innovations in English and American bankruptcy

law, bankruptcy everywhere tended to be primitive and punitive. Thus, we
are told that "over the past three thousand years, the hapless debtor ... has
been chastised and blamed, beaten and maimed, shunned by society, sold into
slavery, and even put to death."8 Although various historic sanctions can be
invoked to prove this point-the Roman bankruptcy law under which credi-
tors supposedly proportionately divided the debtor is a popular example-
what we hear most often about, indeed what has become an almost obliga-
tory preface to every discussion of the history of bankruptcy-is how the
word "bankruptcy" arose from a "medieval" practice of breaking the debtor's
bench. 9
The broken bench is a prop for a model of bankruptcy history in which
discharge, and later innovations, displaced prevailing primitive practices. To
test fully this model would require detailed historical work that is beyond
the scope of this Article. The aim here is more modest: to explore the evi-
dence for the broken bench and thereby perhaps to shed some light on the
pre-modern practices of which the broken bench is said to be a part. The
title of this Article discloses its conclusion: bench breaking is probably a
myth, or if it occurred, was at most a marginal and sporadic practice. The
reduction of pre-modern bankruptcy to largely a matter of bench breaking is
caricature, not history, which fosters the erroneous impression that earlier
law was entirely punitive, and obscures the fact that well before the advent
of discharge in English and American law sophisticated bankruptcy practices
had emerged in medieval Italy and elsewhere offering the possibility of relief
to the debtor. Although in today's era of "globalization," Chapter 11 may be
the leading model of bankruptcy law, in a much earlier period of increasing
international economic integration Italian bankruptcy law played an
Development "demanded an improvement in the corporate bankruptcy system" as a pre-condition for

support. Youngjae Lim, The CorporateBankruptcy System and the Economic Crisis, in ECONOMIC CRISIS
AND CORPORATE RESTRUCTURING IN KOREA: REFORMING THE CHAEBOL 207, 210 (Stephan Mark Hag-
gard et al. eds., 2003). See also Hannah L.Buxbaum, Conflict of Economic Laws: From Sovereignty to
Substance, 42 VA. J. INT'L L. 931, 946 (2002) ("the International Monetary Fund and the World Bank
have played an important role in the convergence of bankruptcy law by requiring bankruptcy reform in
developing countries as a condition of loan support"). For the view that globalization is not bringing about
a 'relentless march toward global homogeneity" of bankruptcy law, see BRUCE G. CARRUTHERS & TER,
RENCE C. HALLIDAY, THE GLOBALIZATION OF INSOLVENCY LAW-MAKING, 1973 - 1998, at 24 (Ameri-
can Bar Foundation Working Paper Series No. 2213, 2003).
'Miller & Waisman, supra note 1, at 153. Somewhat strangely, imprisonment of debtors, which falls
somewhere in severity between "shunned by society" and "put to death," and in fact was a central aspect
of English and American treatment of debtors for centuries, is omitted from this litany.
9
Different commentators variously ascribe the origin of the word bankruptcy to a word or phrase
supposedly in Latin (banca rupta or bancum est ruptur), Italian (banca rotti or bancarotta),or Spanish
(bancarrota). See infra text accompanying notes 11 - 52.
AMERICAN BANKRUPTCY LAW JOURNAL (Vol. 80
equivalent role. Debunking the myth of the broken bench should shed some
light on that role.
I. THE MYTH OF THE BROKEN BENCH

The proper place to start is the prior scholarship on the subject. Set
forth below is a series of short narratives of the broken bench drawn from the
bankruptcy literature. The sample is not random, but rather by design in-
cludes statements from some of the most distinguished authorities on bank-
ruptcy law. Yet, as shall be seen, almost every story differs in its details, and
there is no real evidentiary support for any of them.' 0 Let us present first a
rather recent account, and then work backwards in time toward the earliest
versions.
[2004 (Miller and Waisman)] The earliest known laws
regulating the relationship among debtors and creditors pre-
scribed severe criminal punishment for those unable to pay
their debts as they came due. In medieval Europe, a
merchant who was unable to pay his bills was dealt with
harshly: his creditors would come to the market and break
his workbench over his head. Accordingly, the broken bench
- banca rota [sic] in Latin - is both the legal and linguistic
root of modern bankruptcy."
This passage comes from an article co-authored by one of the leading
bankruptcy lawyers in the United States. But where is the support for the
contention made here-that bankruptcy arose from a tradition in which the
bench was an instrument of assault used by creditors in collective attacks on
creditors? Exactly when and where was this tradition observed?
[2002 (Markham)] The term "bankruptcy" comes from the
Italian phrase "banka rotta," which means broken bench.
During the Middle Ages, the Venetian merchants would
i"Indeed, as we shall see, there is no agreement among the authorities as to what was actually broken,
if anything-benches, tables, counters and stalls have all been put forward. The term 'broken bench" is
thus used here for convenience and does not connote acceptance of this particular element.
In fairness to the authors quoted in this section of the Article, in most instances they were merely
passing on received wisdom-wisdom undoubtedly perceived to originate from reliable sources-incidental
to the discussion of other matters. It is of course a conventional, and ordinarily appropriate scholarly
practice, for writers to rely on the work of prior authorities, particularly for propositions that seem
uncontroversial.
iiSee, e.g., Miller & Waisman, supra note 1, at 155. "Banca rota" appears to be a spelling error. But
"bancarrota"-spelled with two consecutive "r's"- is a Spanish word; bancarotta -spelled with one "r"
and two consecutive "t's is an Italian word. For references to -bancarrota," see, e.g., http://www.sec.gov/
investor/espanol/bankruptcy-esp.htm (last visited Apr. 18, 2006); Israel Trieman, Acts of Bankruptcy: A
Medieval Concept in Modern Bankruptcy Law, 52 HARV. L. REv. 189, 190 n. 2 (1938).
have the benches upon which they conducted business bro-

12
ken when they could not meet their debts.
Among other differences between this account and the preceding one,
bench breaking is described here as a specifically Venetian practice, not a
general European one. But, as in the prior case, no sources are supplied for
the claims made. The question of location will be considered in detail later.
[1992 (Delaney)] The word bankruptcy comes from banca
rupta, or broken bench, which referred to the Italian custom
in medieval outdoor markets of smashing the benches and
stalls of merchants who did not pay their bills."
The source given for this statement, an article written in 1938 by a law
14
professor named Israel Trieman, is discussed below.
[1984 (Dalhuisen)] Fraudulent bankruptcy was punished
even more severely, and led to the so-called banca rotta, the
destruction of the trading place. There was not always,
however, a clear distinction between the unfortunate and
the fraudulent debtor ... therefore the term bankrupt, ban-
queroute, or bankroet became in many places the standard
term for an insolvent person, at least in the spoken, if not in
5
the official, language1
Although this statement is made in the context of an historical discussion
of Italian bankruptcy law, the author stops short of saying that bench break-
ing was a specifically Italian practice. Furthermore, the author of this ac-
count, in a treatise otherwise replete with scholarly citations, provides no
6
source for it. The case against Italian bench breaking is discussed below.'
2
' JERRY W. MARKHAM, 1 A FINANCIAL HISTORY OF THE UNITED STATES 15 (2002).
3
KEVIN J. DELANEY, STRATEGIC BANKRUPTCY How CORPORATIONS AND CREDITORS USE CHAP,
TER 11 TO THEIR ADVANTAGE 11 (1992).
14Israel Trieman, supra note 11. See infra text accompanying note 15. But Triemanin fact says that
the Italian word was "bancarotti." Id. at 191 n.8. For others who say that bench breaking was an Italian
practice, see, for example, JUKKA KILPI, THE ETHICS OF BANKRUPTCY 10 (1998) (also stating it was a
Spanish practice), and Sigmund Cohn, Book Review, 20 MOD. L. REV. 672, 673 (1957) (reviewing GUIDO
Rossi, IL FALLIMENTO NEL DIRITTO AMERICANO (1956)). But neither of these publications lead to any
new sources or evidence. Kilpi cited only Trieman and several other secondary sources. KILPI, supra, at
197. Although Cohn claimed, in the context of a study of American bankruptcy law by an Italian scholar,
that "[t]he very word 'bankruptcy' . . .probably originated in a local Italian statutory rule of breaking the
trading bench of the fugitive debtor", Cohn did not attribute the comment to that scholar, nor state in
which Italian locality such a statute or rule existed.
' 5J.H. DALHUISEN, 1 DALHUISEN ON INTERNATIONAL INSOLVENCY AND BANKRUPTCY, § 2.02[1], at
1 - 26 (1984).
6
1 See infra text accompanying notes 56 - 117.
[1938 (Trieman)] As has been frequently pointed out, the

derivation of the term goes back to a medieval Continental
custom of breaking the bench (hence, banca rupta) of a
banker or tradesman who had absconded with the money or
17
goods of his creditors."
18
Israel Trieman was an academic who wrote extensively on bankruptcy.
But he was not at his best here. To say that bench breaking was "Continen-
tal" is unduly broad: surely Trieman did not think bench breaking was prac-
ticed everywhere on the European continent. And although Trieman stated
that the derivation of the term "bankruptcy" had been "frequently" pointed
out, he cited only two others, Blackstone and Escriche, who in his estimation
had done so.' 9 (Two sources are not many, but are more than the number of
sources given by most who have retold the story of the broken bench.) Trie-
man's sources will be discussed momentarily. 20 Note also the discrepancy be-
tween Delaney's account from 1992, which is supposedly based on Trieman,
and what Trieman actually said: Trieman did not say that the custom was
"Italian," but "Continental," and Trieman was quite specific about the trigger
for bench breaking: flight, not merely non-payment of bills.
[1927 (Kerr)] During the period when the fair courts exer-
cised exclusive jurisdiction over mercantile affairs, it was
made the duty of the consul to seize the goods of the abscon-
ding money changer, break the bench where he sat (bancus
ruptus), sell all his effects and divide the proceeds among his
creditors.21
This account-written by a law professor named Charles Kerr-has at
first blush the credibility conveyed by detail, but this credibility disappears
on closer scrutiny. A few words of background are necessary to put the
quoted passage in context.
In medieval Europe, organized markets first emerged in towns and in
17See Trieman, supra note 11, at 189 n. 2.
1
The law school of Washington University has named a chair after him.
19See Trieman, supra note 11, at 189 n. 2, citing WILLIAM BLACKSTONE, 2 COMMENTARIES ON THE
LAWS OF ENGLAND (1766) and JOAQUIN ESCRICHE, DICCIONARIO RAZONADO DE LEGISLAGION Y JURIS-
PRUDENCIA (1874). In particular, as to Escriche, Trieman wrote: 'For an interesting discussion of how the
custom was practiced at the ancient Spanish fair of Medina del Campo, see the discussion of bancarrotain
JOAQUIN ESCRICHE, DICCIONARIO RAZONADA [sic] DE LEGISLACION Y JURISPRUDENCIA (1874)." The
edition of Escriche's treatise that Trieman cited was published after Escriche's death; at least one earlier
version does not mention the supposed "custom." See the discussion of bancarrotain JOAQUIN ESCRICHE,
DICCIONARIO RAZONADO DE LEGISLACION CIVIL, PENAL, COMERCIAL Y FORENSE,CON CITAS DEL DER-
ECHO, NOTAS Y ADICIONES FOR EL LICENCIADO JUAN RODRRIQUEZ DE SAN MIGUEL (Maria del Refugio
Gonzdlez ed., Universidad Nacional Aut6noma de Mexico 1993) (reprint of the Mexican edition of 1837).
2
See infra text accompanying notes 51 - 54 (Blackstone) and notes 45 - 48 and 154 - 171 (Escriche).
"iCharles Kerr, The Origin and Development of the Law Merchant, 15 VA.L. Rev. 350, 367 (1929).
trade fairs. 22 Trade fairs were held periodically, at scheduled times and loca-
tions, and attracted merchants from far afield. 23 Justice at such fairs was ad-
ministered by special "fair courts" to which the passage refers. 24 Merchants,
described when acting in this capacity as "consuls," presided over the fair
courts; there were no professional judges. The consuls applied a largely un-
written body of law known as the "Law Merchant"-the law followed by
merchants as a matter of customary practice. 25 Elsewhere in the article from
which the quoted passage was drawn, Kerr elaborated on this theme with a
fairly standard formulation: "Out of their own needs the medieval merchants
created their own courts, and in those courts evolved, expanded and systema-
tized a body of commercial law, speedy, equitable and flexible .... "26 Thus,
the Law Merchant was not fixed: "While ignoring the solemnities of the law
courts, there prevailed an additional feature of administration which required
all questions in dispute to be decided according to the equities of each partic-
27
ular case."
Kerr tells us that bench breaking was administered by the consuls who
presided over the fair courts, but not which fair courts. This makes testing
the accuracy of his assertion rather difficult because hundreds of trade fairs
were held across medieval Europe, including famous fairs in the Champagne
region of France, in Lyon, and in the town of Medina del Campo. 28 Was it
the professor's position that bench breaking was practiced at all of these fairs?
And when was bench breaking practiced? Kerr's reference -to the period
when the fair courts exercised exclusive jurisdiction over mercantile affairs"
22
See 0. Verlinden, Markets and Fairs, in 3 THE CAMBRIDGE ECONOMIC HISTORY OF EUROPE:
ECONOMIC ORGANIZATION AND POLICIES IN THE MIDDLE AGES 119, 119 - 25 (M.M. Postan and H.J.
Habakkuk eds., 1963).
23
See generally id. at 119 - 53. On the fairs of Champagne, see 3 FERDNAND BRAUDEL, CIVILIZATION
AND CAPITALISM 15TH - 18 CENTURY: THE PERSPECTIVE OF THE WORLD 111 - 16 (Sian Reynolds
trans., Phoenix Press 2002) (1979).
240n fair courts, see, for example, W. MITCHELL, AN ESSAY ON THE EARLY HISTORY OF THE LAW
MERCHANT 5, 30, 39, 68 and 72 (1904).
2
Id. at 8 (-The Law Merchant, in fact, was vague and indefinite; in many of its courts the law was
regarded as a purely customary law to be declared, in case of doubt, by the merchants of the courts
themselves, and even where its rules had been codified there were in reserve unwritten rules founded on
custom which the commercial judges were ordered to observe.") The Law Merchant also was followed
outside the fair in communities with concentrations of merchants. For example, as early as the twelfth
century, Genoa had "good merchant law." STEVEN A. EPSTEIN, GENOA & THE GENOESE, 958 - 1528, at
69 (1996). But for the view that the existence of a separate body of merchant law, administered by
merchants in independent courts, is a "considerable exaggeration," see Charles Donahue, Jr., Medieval and
Early
26
Modem Lex mercatoria, An attempt at the probatio diabolica, 5 CH4. J. INT'L L. 21, 36 (2004).
Kerr, supra note 21, at 356.
27
1Id. at 355.
2
See 2 FERDNAND BRAUDEL, CIVILIZATION AND CAPITALISM 15TH - 18TH CENTURY: THE WHEELS
OF COMMERCE 82 - 92 (Sian Reynolds trans., Collins 1982) (1979). For a discussion of Champagne, see
infra text accompanying notes 119 - 137; for Medina del Campo, see irfra text accompanying notes 154 -
171.
is, for two reasons, not helpful. First, fairs in different places were held in
different periods. For example, the Champagne fairs reached their height in
the thirteenth and fourteenth centuries, and thereafter waned; the fair at
Lyon only began in the fourteenth century. 29 Furthermore, it is doubtful
that there was any period "when the fair courts exercised exclusive jurisdic-
tion over mercantile affairs."30 First, not all merchants in medieval Europe
conducted business exclusively, or even in part, at fairs: there were also -sed-
entary merchants" who did business solely in stalls and shops in towns and
cities. 31 Although such merchants might be subject to the jurisdiction of
merchant courts, these were not the same as fair courts.3 2 Second, it is
doubtful that Kerr's description of the -exclusive" jurisdiction of fair courts
over mercantile affairs is accurate. Although, as Kerr suggested, it is generally
accepted that trade fairs stood somewhat outside of the ordinary system of
medieval justice, two sources of law seemed to co-exist there. Royal sponsor-
ship of the fairs, which as Kerr acknowledged was the norm, sometimes
brought royal regulation, which was often quite intrusive and detailed. 3 3 For
example, the Castilian crown issued rules governing the placement of booths
at the fair at Medina del Campo. 34 The Law Merchant was thus apparently
confined to those matters that were not preempted by the sovereign or other
local governing authorities. 35 Merchant law might thus ordinarily govern the
payment of debts and bankruptcy at the fairs, but might be supplemented or
supplanted in this sphere by royal or municipal regulation. 36 And even if we
29
1d. at 91, and BRAUDEL, supra note 23, at 111 - 16.
3
°BRAUDEL, supra note 28, at 82 (noting that various "[r]ulers who ... had quickly taken control of
these vital points of confluence, granted large numbers of derogations, franchises, guarantees and
privileges").
31
See, e.g., ROBERT S. LoPEz, THE COMMERCIAL REVOLUTION OF THE MIDDLE AGES, 950 - 1350, at
107 (1976); N.S.B. GRAs, BUSINESS AND CAPITALISM: AN INTRODUCTION TO BUSINESS HISTORY 67 -
68 (Beard Books 2003) (1939).
32
MITCHELL, supra note 24, at 40 - 41. In medieval Europe in general, "[s]ources of merchant adjudi-
cation included fair courts, guild courts, specialized commercial courts, and commercial arbitration." Emily
Kadens, Order within Law, Variety within Custom: The Characterof the Medieval Merchant Law, 5 CHI.J.
INT'L L. 39, 64 (2004).
33
Kerr, supra note 21, at 357 ("fairs were usually established by royal grant"); ABBOT PAYTON USHER,
THE EARLY HISTORY OF DEPOSIT BANKING IN MEDITERRANEAN EUROPE 116 (1943) (the "six fairs [of
Champagne] were under the jurisdiction of a Guard appointed by the Count of Champagne or the King,
acting in this capacity as Count").
34
USHER, supra note 33, at 126.
"sSee Donahue, supra note 25, at 36, for the argument that merchant law and merchant courts were
subject to local political power.
36
Outside of the trade fairs, cases in which merchant law was subordinated to local law act can be
readily identified. For example, in Barcelona, municipal regulations governing money-changers, as well as
the bankruptcy laws of 1304 and 1432, were enforced by a merchant court, the Consulado, under the
authority of the city councilors. ROBERT SYDNEY SMITH, THE SPANISH GUILD MERCHANT, A HISTORY
OF THE CONSULADO, 1250 - 1700, at 58 (1940). See also USHER, supra note 33, at 545 (the "Consols" of
Catalonia were "judges of maritime and mercantile cases who administered the law merchant, supple-
accept, despite the historical evidence to the contrary, that fair courts com-
prised a self-contained system of justice uninfluenced by local or national law,
the notion that the consuls who presided over such courts were under an
omnipresent duty to break the bench of the "absconding money changer" is
inconsistent with Kerr's own "romantic" conception of a fair and flexible Law
Merchant administering justice according to the equities of each case. Other
elements of Kerr's account are equally implausible, such as his claim that an
absconding money-changer at the fair would leave "goods" behind for seizure.
The nature of the money-changers' profession was such that they did not
hold or trade goods. Rather, "these 'foreign merchants and bankers'.., would
arrive [to the fairs] empty-handed 'without bringing ...anything beside their
persons, with a little credit, a pen, ink and paper ...."37 But if, in his haste to
flee, the money-changer left behind a table or counter, why would the consuls
later break the counter, when its sale might be the only source of creditors'
recovery? Lastly, Kerr's citation to a nineteenth century American judicial
decision (discussed briefly below), which does not mention fair courts, the
duties of the consul, and the like, does nothing to support his thesis. 38
[1900 (Brissaud)] "Banca rotta": the bench which the
trader has on the principal square of the town is broken.3 9
Although the author of the treatise in which this statement appears was
French, he does not suggest that benches were broken in France; indeed, his
quotation of the Italian version of the phrase suggests that he considered it an
Italian practice. But because of the absence of any meaningful details-where
did this happen, why, and when-and the absence of any stated source, no
further evaluation is really possible.
[1897 (Huvelin)] The bench of the money changer in flight
was broken (from which came the expression
0
"banqueroute.")4
mented by various municipal and general ordinances.") In Venice although by the 1400's both bank and
merchant failures were under the jurisdiction of a merchant court (the Sopraconsoli deo Mercanti), the
actions of this court were in turn subject to the approval of higher authorities: in the first instance, the
government body that was known as the Council of Forty, but "particularly clamorous cases were simply
arrogated by" even higher authorities, the Senate or Council of Ten. REINHOLD C. MUELLER, THE VENE-
TIAN MONEY MARKET. BANKS, PANICS, AND THE PUBLIC DEBT, 1200 - 1500, at 123 (1997).
171 FERDNAND BRAUDEL, THE MEDITERRANEAN AND THE MEDITERRANEAN WORLD IN THE AGE
oF PHILIP II, at 321 (Sian Reynolds trans., Win. Collins Sons & Harper & Row 1972) (1948). This is
perhaps a bit of understatement for literary effect; elsewhere, Braudel describes the money-changer's equip-
ment as consisting of "'a table covered with a cloth' a pair of scales and several sacks 'filled with ingots or
coins.'" BRAUDEL, supra note 23, at 112.
'SEverett v. Stone, 8 F. Cas. 898, 901 (C.C. D. Me. 1844).
39
JEAN B. BRISSAUD, A HISTORY OF FRENCH PRIVATE LAw 563 n. 4 (Rapelje Howell trans., Augus-
tus 4M. Kelley 1968) (1912).
oP. HUVELIN, ESSAi HISTORIQUE SUR LES DROITS DES MARCH2S ET DES FOIRES 487 ("Le banc du
228' AMERICAN BANKRUPTCY LAW JOURNAL (Vol. 80
Huvelin cited no authority, and offered no evidence, for this claim. We

will consider it more carefully below in the context of a fuller discussion of
the possibility of bench breaking in France. 41
[Nineteenth century (Escriche)] The word bancarrotaand
its odious meaning originated in the ancient and famous fair
of Medina del Campo .... The Genoese, who were there
engaged in [the business of] bills of exchange and money-
changing, were placed in the principal market with their ta-
bles and counters and a bench of wood to sit on; and when
any one of them acted with a malicious absence of good faith,
the consuls or magistrates of the fair imposed on him, among
other penalties, the punishment of solemnly breaking the said
bench in the presence of the immense crowd, declaring him
at the same time unworthy of mixing with good men, and
excluding him forever from the fair of Medina. This breaking
of the bench gave rise to the word 'bankrupt,' which later
spread generally in Europe to designate the state of culpable
or fraudulent insolvency.42
The fair at Medina del Campo was in Spain, and was attended by, among
other international merchants, Genoese bankers. 4 3 This account, which is a
translation of a passage from a Spanish treatise, is discussed in more detail
below. 44 But for the moment, it is sufficient to observe that although Es-
criche's treatise is one of two sources on which Trieman claimed to rely, it is
changeur en fuite est rompu (d'ofi l'expression de banqueroute)") (Paris, Librairie Nouvelle du Droit et du
Jurisprudence 1897).
41See infra text accompanying notes 119 to 153.
421 JOAQUIN ESCRICHE, DICCIONARIO RAZONADO DF LEGISLACION Y JURISPRUDENCIA 672 (Juan B.
Guim ed., Editorial Temas 1977) (1831) (author's translation). Another translation of the quoted passage
may be found in WYNDHAM ANSTIs BEWEs, THE ROMANCE OF THE LAW MERCHANT 61 - 62 (1923).
But Bewes did not cite the edition of Escriche's treatise from which the translation was made nor the page
on which the quoted passage appears. There are several other oddities about the translation in Bewes'
text. Bewes rendered the word "bancarota" with only a single '"-in contrast to the spelling of the word
in the two editions of Escriche's treatise consulted by this author (see supra note 19, and ESCRICHE, supra),
and the spelling as rendered by Trieman. Nor did Bewes state who translated the passage, or indeed even
acknowledge that it was translated. Escriche's treatise was published in a number of different editions in
the nineteenth century, some posthumously, and-as previously noted (see supra note 19)-not all of
these editions contain this account. Bewes also stated that it had been "suggested--he does not say by
whom-that Genoese bankers diffused the practice of bench breaking through Europe. BEWES, supra, at
62. But Escriche himself did not make such a suggestion, at least not in the editions consulted by this
author.
43
See also CRISTOBAL ESPEJO & JULIAN PAZ, LAS ANTIGUAS FERIAS DE MEDINA DEL CAMPO 38
(1908) (noting the presence of the Genoese at the fair at Medina del Campo, as well as merchants from
Milan, England, Flanders, Portugal, Ireland, and Brittan and 'other nations"); 1 BRAUDEL, supra note 37, at
321 (stating that Italian bankers "made the fortune" of Medina del Campo, among other cities).
44See infra text accompanying notes 154 - 172.
inconsistent with Trieman's own account in almost every material respect: 45

Trieman stated that the merchant -fled" Escriche said that the banker
was "banished."
Trieman said the bench was broken because, and thus after, the
merchant fled. Escriche said that first the bench was broken, and then the
banker was banished.
Escriche stated that a consul or magistrate imposed bench breaking as a
penalty. Trieman said the practice was merely customary.
According to Escriche, only Genoese bankers had their benches broken.
Trieman stated that tradesmen or bankers might suffer this penalty.
Escriche claimed that the bench was broken because the banker "betrayed
his good faith"-whatever that means. Trieman stated that the bench was
broken because the debtor had "absconded with the money or goods of his
creditors."
[1844 (Everett v. Stone)] Bankruptcy means a contempla-
tion of becoming a broken up and ruined trader, in accor-
dance with the original signification of the term; a person
46
whose table or counter is broken up, bancus ruptus.
This passage, from a nineteenth century American judicial decision, is the
source cited by Kerr in connection with his account of bench breaking at the
fair courts. But there is nothing here about fair courts. No source is given in
this decision for the statement quoted here, but-given the similarities in
phrasing and the esteem that Story held for Blackstone's treatise-it seems to
have been drawn from Blackstone's Commentaries on the Laws of England,
47
which is discussed immediately below.
[1767 (Blackstone)] The word itself is derived from the
word bancus or banque, which signifies the table or counter
of the tradesman (Dufresne I. 969) and ruptus, broken: de-
noting thereby one whole shop or place of trade is broken
and gone; though others rather chuse [sic] to adopt the word
route, which in French signifies a trace or track, and tell us
that a bankrupt is one who have removed his banque, leaving
but a trace behind (4. Inst. 277). And it is observable that
the title of the first English statute concerning this offence,
34 Hen.VIII c. 4, "against "such persons as do make bank-
45
See Trieman, supra note 11, at 190 n. 2.
46
Everett v. Stone, 8 F. Cas. 898, 901 (C.C. D. Me. 1844). The judge who wrote these words, Joseph
Story, was a Justice of the United States Supreme Court, although he wrote the decision in his parallel
capacity as a circuit court judge.
47
See LIFE AND LETTERS OF JOSEPH STORY 73 (William M. Story ed., Books for Libraries Press 1971)
(1851) (describing Blackstone's work as "that most elegant of all commentaries.")
rupt" is a literal translation of the French idiom, qui font

4s
banque route.
This statement appears in a treatise on English law, Commentaries on the
Laws of England-perhapsthe most influential such work in the history of
English and American law. It was written by Sir William Blackstone, a cele-
brated lawyer of the eighteenth century and the Solicitor General of En-
gland.49 But Trieman's reliance on Blackstone is almost as unwarranted as
Trieman's citation of Escriche.
Trieman claimed that bankruptcy came from a "medieval Continental cus-
tom of breaking the bench of a banker or tradesman who had absconded with
the money or goods of his creditors." But Blackstone simply said that bank-
ruptcy came from a phrase which "signifies" that a shop or place of trade is
"broken and gone," and did not speak of "customs," absconding debtors, or the
destruction of anything. And in any event, Blackstone then hedged and con-
ceded that bankruptcy might have an entirely different meaning.
Blackstone proposed three possible phrases, in two different languages
(Latin and French), from which the word bankruptcy may have been de-
rived. 50 Trieman put forward only one such phrase, in Latin.
Blackstone stated that "bancus" meant a table or counter. But Trieman
said that "banca" was a bench.
The key points are that Blackstone did not really say that bench breaking
in any literal sense occurred and the sources cited by Blackstone did not say
so either. In the passage quoted above, Blackstone cites Dufresne merely for
4
SBLACKSTONE, supra note 19, at 472 n. e.
45
An American historian has said of the COMMENTARIES: "This work has ...filled a place unique in
the history of the law in the English-speaking world." DANIEL J. BOORSTIN, THE MYSTERIOUS SCIENCE
OF THE LAW 3 (1941).
5
'One of the phrases was "banque ruptus," which joins a French word, "banque," with a Latin one,
ruptus." A similar hybrid form was used at least once before. In 1533, Sir Thomas More-the Catholic
martyr, saint and "man for all seasons"-wrote: "Suche banke ruptes be these men ... that gape after the
spoyle of the spyrytualty/ which whan they haue wasted and mysse spent theyr own, wolde than very
fayne saue for hangyng robbe spyrytuall and temporall to" (emphasis added). THOMAS MORE, THE
APOLOGYE OF SYR THOMAS MORE, KNYGHT 85 (Arthur Irving Taft ed., Oxford University Press 1930)
(1533). This may be a combination of French with Latin, as Blackstone proposed, or may simply be
idiosyncratic spelling: little in the passage, or the book as a whole, conforms to contemporary orthography.
Sir Thomas was, among other things, a lawyer, who served as England's Law Chancellor from 1529 to
1533. But he did not use the phrase banke ruptes here as a legal term, but in a metaphorical sense-to
mean the spiritually bankrupt. Sir Thomas could have only used the term bankrupt metaphorically if he
was confident that his readers were familiar with its ordinary meaning as well. Thus the word bankrupt,
in some form, must have been absorbed into the English language well before 1533. Blackstone may have
been familiar with More's use of the phrase "banke ruptes," but, for political reasons, unwilling to cite it: in
the eighteenth century, the Solicitor General of a country which had embraced Anglicanism as its state
religion may not have considered a polemic written by a Catholic martyr-More was beheaded for trea-
son in 1535-an appropriate source for his treatise.
the meaning of the word "bancus."' The English bankruptcy statute of 1542
does not shed any light on bench breaking, and as Blackstone acknowledged,
Coke-who is discussed below-took a different view than Blackstone.
[1669 (Coke)] We have fetched as well as the name as the
wickedness of Bankrupts from foreign nations: for Banque in
the French is mensa, and a Banquer or Exchanger is men,
sarius, and route is a sign or mark, as we say, a cart rout is
the signe or mark where the cart hath gone: metaphorically
it is taken for him that hath wasted his estate, and removed
his banque, so that there is left but a mention thereof. Some
say it should be derived from banque and rumpue, as he that
hath broken his banque or state.52 [I believe that the dele-
tion of quotes conforms to rest of article]
Lord Coke was a great English jurist of the seventeenth century who, like
Blackstone, wrote an influential treatise on English law. But-at the risk of
being unduly dismissive of one of the giants of English law-his comments on
53
the origin of bankruptcy are unsupported and indeed incoherent.
At this point let us take stock of what we have learned about bench
breaking from the authorities we have surveyed.
When did bench breaking occur? None of the authorities specifies
any definite period in which benches were broken: to say that a practice was
"medieval" or occurred during the Middle Ages is merely to say that it oc-
curred sometime between the years 500 and 1500 or so.
Where did it occur? Again there is a wide divergence of views: Venice,
Italy, the Spanish town of Medina del Campo, fair courts, continental Eu-
rope, and Europe are all put forward as places where benches were broken.
Why did it occur? There are several different explanations, to wit: to
punish debtors who did not pay their bills, to punish debtors who absconded,
or to punish bankers who acted in bad faith.
51
"Dufresne" is a reference to CHARLES Du FRESNE Du CANGE, GLOSSARIUM MEDIAE & INFIMAE
LATINATITIS (1678). He is thus also sometimes referred to as Du Cange. As we shall see, Du Cange
explained the origin of the word bankruptcy without any reference to bench breaking. See infra text
accompanying notes 84 - 86. "34 Henry VIII c. 4" refers to the English bankruptcy statute of 1542, while
"4 Inst. 277" refers to the treatise of EDWARD COKE, THE FOURTH PART OF THE INSTITUTES OF THE
LAWS OF ENGLAND.
52
EDWARD COKE, THE FOURTH PART OF THE INSTITUTES OF THE LAWS OF ENGLAND: CONCERN,
ING THE JURISDICTION OF COURTS 277 (4th ed., London, A. Crooke, 1669). As Coke must have known,
mensa is Latin, not French, and means board, table or counter of a money-changer.
"3Trieman, supra note 11, at 190 n. 2, also cited Coke, but asserted that Coke was "evidently wrong"
in his view of the origin of the word. The writers of an eighteenth century treatise were similarly skepti,
cal, saying that "this derivation favours very much of the quaintness of conceit with which the works of
this great and learned lawyer are frequently tinctured." See E.LYNCH, et al., A SUCCINCT DIGEST OF THE
LAWS RELATING TO BANKRUPTCY 1 (1791), quoted in Duncan, supra note 5, at 192.
Exactly what was broken? Not everyone says that it was the bench;
other options are stalls, counters, tables, and the trading place.5 4 It makes a
difference. Any merchant might have had a stall, but the table and counter
were peculiarly identified with bankers: they were used for the exchange of
money.
Whose benches were broken? We are variously told that tradesmen,
merchants, bankers or money-changers had their benches, tables, counters,
stalls or place of trade broken.
From what language did the word "bankruptcy" come? Italian,
Latin, Spanish and French are variously identified as the source of the word
bankruptcy (but in the case of French, no one seems to contend that "banque
route" meant "broken bench"). As to the original phrase, the principal candi-
dates are banca rupta, bancum est ruptum, banca rotti, bancarotta,or banca
rotta.
What evidence is cited for bench breaking? The short answer is
none. The one common element in the accounts quoted here is the absence of
any evidence for the assertions made about bench breaking. Relevant evi-
dence in this case would include correspondence of merchants, court records,
statutes, and the like, all of which exist. Although some of the authorities
cite the work of other scholars-which to be sure is the basis of most schol-
arly writing-this is not really direct evidence of anything other than the
views of other scholars. Exclusive reliance on prior authority suffers from the
inherent limitation that the authority cited may be wrong. This problem is
compounded by the fact that, as has been shown, the earlier authorities did
not say precisely what others have attributed to them.
Without any further knowledge of bench breaking, one conclusion can be
drawn about these accounts: because of their mutual contradictions, at least
some of them must be wrong. But are any of them true? Although it is hard
to prove the non-existence of a thing, let us consider the evidence of bench
breaking that may exist at several specific places-Venice, Italy outside of
Venice, the Champagne fairs, and Medina del Campo-where bench break-
ing purportedly was practiced.
A. BENCH BREAKING IN VENICE?
Renaissance Venice was the most commercially sophisticated polity in

Europe-in Braudel's phrase, the centre of the world-economy as it then ex-
isted.55 Although "[t]he history of Venice before the thirteenth century is
lost in an impenetrable mist," its earliest recorded history reveals that Ven-
54
See, e.g., supra text accompanying note 13 ('benches and stalls"), note 15 ("trading place7), note 42
("table or counter"), note 46 ("table or counter"), and note 48 ("tables and counters-).
"5See BRAUDEL, supra note 23, at 28, 79, 124.
ice had orderly, well-regulated bankruptcy procedures.56

We can see the Venetian approach to bankruptcy in a legal document
from the year 1301. Niccol6 Pellegrino had apparently defaulted on his debts
to about six of his creditors, and so he entered into a "settlement and pact" to
repay them in installments of "s.25 Venetian groat." Pellegrino agreed that
each installment would be payable on 'every feast of St. Michael and every
Paschal feast of the Resurrection of the Lord" until all of his debts had been
fully satisfied. To secure these obligations, Signor Pellegrino further agreed
to deposit s.25 Venetian groat with the bank of one of his creditors: if he
failed to timely make any required payment, the deposit would be forfeited as
a penalty and divided pro rata among his creditors5 7 That was it: no broken
bench or other humiliating sanctions. For a debtor such as Signor Pellegrino,
the settlement and pact had the effect of replacing the obligations that ex-
isted before the settlement with those that were provided in the settlement.
This is analogous to what occurs today in the United States upon confirma-
tion of a Chapter 11 plan of reorganization.
The goal of Venetian bankruptcy law was explicitly rehabilitative. Thus,
the Venetian constitution of 1457 stated that the office of sopraconsoli,who
were special bankruptcy commissioners, "was created on the principle and for
the sole purpose of making certain that our citizens, when reduced to insol-
vency by adverse fortune, would be able to carry on their business and not be
forced to leave their families and wander about like idle beggars."58 Other
organs of the government seemed to be animated by the same principle. For
example, the Great Council passed a decree in 1500 to provide relief to a
particular debtor, Nicol6 Baron, "who having lost his assets through no fault
of his own, has been kept in prison for sixteen months and more, in violation
both of Christian charity and of Venetian humanity." 5 9 Nicol6 was deter-
mined to be among those covered by a decree previously "moved in [the]
Council concerning those who fail or are burdened with debts," and the
Great Council accordingly directed that the "Sopraconsoli shall conduct a
thorough inquiry into his assets, and shall, together with the Council of
56
Id. at 109; UMBERTO SANTARELLI, PER LA STORIA DEL FALLIMENTO NELLE LEGISLAZIONI
ITALIANE DELL'FETA INTERMEDIA 51 (1964)(citing Venetian statute of 1244). Banks, bank failures and
bankruptcy in Venice have all been the subject of scholarly study. See, e.g., MUELLER supra note 36, and
GIOVANNI ITALO CASSANDRO, LE RAPPRESAGLIE E IL FALLIMENTO A VENEZIA NEI SECOLI XIII - XVI
(1938).
57
ROBERT S. LOPEZ & IRVING W. RAYMOND, MEDIEVAL TRADE IN THE MEDITERRANEAN WORLD
295 - 96 (1955).
'8M, at 290 n. 2, quoting an official statement from 1489: "the office was established to assist good
merchants or citizens who have been struck by adverse fortune... . See also VENICE: A DOCUMENTARY
HISTORY, 1450 - 1630, at 463 (David Chambers and Brian Pullan eds., 2001) (describing the sopraconsoli
as "[m]agistrates concerned with persons unable to meet their obligations, who had asked for time to pay
their debts.")
5
VENICE: A DOCUMENTARY HISTORY, 1450 - 1630, supra note 58, at 169.
Forty, agree upon terms with his creditors, that he may not be forced in such
a cruel and godless fashion to die in prison for so trifling a reason .... "60
Although the Venetian bankruptcy scheme was not static, and evolved
over time, Mueller provides an outline of the main features of the system as it
existed in the fourteenth and fifteenth centuries. A case commenced with an
official proclamation of failure. 6 1 Creditors then elected liquidators, and the
liquidators were charged with collecting assets from debtors and determining
the validity of claims made by creditors. 62 The liquidators were paid a salary
from the assets collected, and were subject to the supervision, and sometimes
intervention, of magistrates. 63 In theory, there were two categories of bank-
ruptcy-one involuntary and the other voluntary. "Fugitivus"-NoT banca
rotta-was the name given to an officially proclaimed involuntary bankrupt,
but this name was somewhat misleading: although it in fact means fugitive,
the designation applied whether or not the bankrupt fled.64 Those who actu-
ally did flee might return to the city if they could extract a "safe-conduct"
from the authorities; the safe-conduct immunized the bankrupt from arrest
and incarceration. 65 So readily available were such safe-conduct passes that
the sopraconsul kept a stock of such forms with a blank space left where the
name of the debtor might be inserted. 66 The safe-conduct further gave the
debtor the breathing space to negotiate an agreement or "pactum" with his
creditors regarding the amount he could pay and the amount and timing of
installments. Such agreements, which today might be called compositions or
schemes of arrangements, had to be approved by a body known as the Coun-
cil of Forty-much as today, in most jurisdictions, schemes of arrangement or
reorganization plans supported by creditors require court approval before be-
coming effective. 67 In contrast to the fugitivus, the voluntary bankrupt was
known, more sympathetically, as one who was "gravati di debito," meaning
"burdened with debt."68 Such a person "admitted insolvency by consigning
his account books voluntarily to the proper magistracy, which initiated the
6°Id.
61
MUELLER, supra note 36, at 124.
62
1d..
631d.
64
1d. at 123; see also the discussion in SANTARELLI, supra note 56, at 51.
65
6LoPEz & RAYMOND, supra note 57, at 290 n. 2, quoting and translating a document that appears in
CASSANDRO, supra note 56, at 166.
67
MUELLER, supra note 36, at 124. FREDERICK LANE, VENICE: A MARITIME REPUBLIC 96 (1973),
states that the Council of Forty was both a legislative body of intermediate size and "the court of appeals
at the top of the judicial system.- But, in his own study, Mueller suggests that, in bankruptcy matters, the
Senate and the Council of Ten could withdraw jurisdiction from the Council of Forty and then exercise
(presumably superior) judicial power. See supra note 36.
6MuELLER, supra note 36, at 124.
procedure for ascertaining the level of liabilities and the nature of assets."6 9
In Venice's sophisticated system of bankruptcy, bench breaking, or other
rituals intended to shame or coerce the debtor, had no place. 7° The term
"bancarotta ('bancum est ruptum')" was "occasionally used in the late four-
teenth century simply to signify a bank failure, without reference to any rit-
ual act of breaking the banker's table or bancum."7 1 The punishment imposed
on debtors in Venice was generally very light. 72 Insolvents who:
failed to pay in full were excluded from the public and eco-
nomic life of the city. If they were nobles, they could not
take part in the councils or hold public office; if they were
non-nobles, they were prohibited from entering the areas of
the Rialto or San Marco, which practically excluded them
from doing business. . . .that and the public proclamation
were infamy enough . ..73
Thus, Mueller implies, the debtor who surrendered all of his assets for
the benefit of, or otherwise reached accommodation with his creditors would
ordinarily not be subject to punishment, 74 and although perhaps not without
75
taint, would be free to resume his life in the community.
There is a postscript to all of this. The Venetian banker did not own his
table: the government-the Commune of Venice-did, and the banker
merely leased the table from the Commune.7 6 The banker's table was thus
not merely an item of furniture, it was a valuable concession; the tables were
equipped with delicate scales, were limited in number, were strategically situ-
ated in the Rialto and Piazza San Marco, and "were rented out at auction to
the highest bidder."7 7 These "rents soon became an important category in
the Commune's revenues." 78 Breaking the banker's table would thus have
69
1d. Although Mueller does not expressly say so, the sopraconsul (Sopraconsoli deo Mecanti) would
appear to be the "proper magistracy" for cases of bankruptcy.
7
°ld. at 125.
7lid.
7"The Venetian approach toward bankruptcy was consistent with its approach in the sphere of crimi-
nal law, which was one of 'moderation and restraint." Guido Ruggiero, Law and Punishment in Early
Renaissance Venice, 69 J. L. & CRIMINOLOGY 243, 247 (1978).
7"MUELLER, supra note 36, at 125.
74
To be sure, at least some Venetian debtors were imprisoned. See, e.g., supra text accompanying notes
59 - 60.
7"MUELLER, supra note 36, at 125.
76
Florentine bankers apparently also rented their benches from the communal authorities. See FLOR,
ENTINE MERCHANTS IN THE AGE OF THE MEDICI. LETTERS AND DOCUMENTS FROM THE SELFRIDCE
COLLECTION OF MEDICI MANUSCRIPTS 229 (Gertrude Randolph Bramlette Richards ed., 1932).
77
78Id.
damaged a property interest of the Commune of Venice as well as of the

banker.
B. BENCH BREAKING ELSEWHERE IN ITALY?
One-might infer, from most of the accounts of bench breaking recited
above, that medieval debtors and creditors existed in a statutory void. The
picture typically presented (Kerr and Escriche perhaps being exceptions), is
that bench breaking was a customary remedy: in effect, that creditors who
lacked any effective method of recovery from the debtor vented their anger
or symbolically expelled him from the market by destroying his work place.
As shown above, this picture does not apply to Venice. 79 Nor does it
apply elsewhere in Italy: from a very early period, but virtually every com-
mercially significant polity in medieval Italy had its own bankruptcy stat-
ute.8 0 For example, Pisa had a bankruptcy statute as early as 1161; Verona
had one in 1228; Vercelli had a statute in 1241; Bologna adopted a bank-
ruptcy statute in 1245; in Siena, bankruptcy was part of the constitution of
the commune in 1262; and in Florence, a bankruptcy statute existed as early
as 1299.81 This is merely an illustrative list of early bankruptcy Italian
statutes.
Many of these statutes have been published, and these seem to have been
studied carefully by Italian historians.8 2 If bench breaking were statutory,
then the burden should be on the proponents of bench breaking to identify
the statutes where it may be found. A study by Santarelli of medieval bank-
ruptcy law in Italy exhaustively examines the legally available sanctions but
does not mention the term "bancarotta," or any Latin equivalent. Rather,
Santarelli states that in the statutes of medieval Italy, the bankrupt was des-
ignated by the terms "fugitivi, cessantes, rupti [or] fallentes."8 3 Similarly, the
79
See supra text accompanying notes 56 - 77.
"Of course, in the Middle Ages Italy was merely a geographic construct, not a political entity.
8
'SANTARELLI, supra note 56, at 325 - 332 (listing statutes that he consulted for hisstudy). A de-
tailed discussion of the application of bankruptcy law to two prominent Sienese firms that failed in the
early fourteenth century may be found in EDWARD D. ENGLISH, ENTERPRISE AND LIABILITY IN SIENESE
BANKING, 1230 - 1350 passim (1988).
s2j.PERCEROU, 1 DES FAILLITES & BANQUEROUTES ET DES LIQUIDATIONS JUDICIAIRES 12 (2d ed.
1935) ("most of the statutes have been published").
5
S See SANTARELLI, supra note 56, at 47. Santarelli suggests that these terms had little substantive
difference, and in practice they all amounted to much the same thing: a person in any of these conditions
was a bankrupt. But, if one were to attempt to distinguish them, "fugitivi," from ("fuga" meaning "flight or
escape") would particularly connote those who have fled without paying their obligations. See Trieman,
supra note 11, at 192. But see MUELLER, supra note 36, at 123, defining "fugitivus," in the Venetian
context, as -an officially proclaimed bankrupt, whether he actually fled the city or not." Similarly, "ces-
sante" (apparently derived from "foro cedere," meaning withdrawal from the market), see Trieman, supra
note 11, at 193), and connoting one who had defaulted, seemed to be used somewhat interchangeably with
fugitivus, Trieman, supra note 10, at 192, simply to mean defaulting debtor, although Thomas Kuehn,
Multorum Fraudibus Occurrere. Legislation and JurisprudentialInterpretation Concerning Fraud and Lia-
voluminous glossary of "late Latin" terms compiled by the French scholar Du

Cange in the seventeenth century does not include the phrase banca rupta, or
any variation thereof. Rather, Du Cange found a statute of 1334 from
Savona that used the term "ruptus"to describe the bankrupt, and accordingly
defined ruptus as one who "defrauded the creditor, or [a] defaulting debtor
who destroys a banker or moneychanger and then withdraws from the mar-
ket."8 4 On the basis of Du Cange's work, one lexicographer stated unequivo-
cally: "The usual account, that a bankrupt person had his bench (i.e., the
money-table) broken, is unauthorized and needless .... It was the man that
was 'broken"' (emphasis in original).8 5 Indeed, one can go further, as Du
Cange seems to have, and say that it was the banker who was broken by the
debtor's default. To be sure, notwithstanding Du Cange's findings, the term
bancham ruptam facientes appeared frequently in an Italian bankruptcy trea-
tise of the sixteenth century, but it meant "to make bankrupt."8 6 This phrase
had no apparent connection to bankruptcy as bench breaking.
It is perhaps difficult to generalize about the content of the medieval
Italian statutes: each polity had its own statutes, and these were often
amended over time. But there seem to have been two principal statutory
schemes. One, the fallimento, we have seen already in the context of Vene-
tian law: it involved in essence a consensual resolution of the obligations of
the debtor negotiated by the debtor and his creditors that resulted in
rescheduling and perhaps reducing these obligations. The other was the ces-
sio bonorum, in which the debtor made an immediate assignment of all his
property for the benefit of creditors in satisfaction of their claims: what today
we would call liquidation. 87 In either case, principles of pro rata distribution
among creditors were generally followed. In aid of these two schemes, the
statutes had many sanctions, but their purpose seems to have been largely
inquisitorial, rather than punitive: i.e., to induce the recalcitrant debtor to
disclose his assets.8 8 Incarceration and even torture-but not bench break-
ing-were among the permitted techniques. In comparison, the threat of
bility in Quattrocento Florence, 93 STUDt SENEsI 309, 312, 313 (1981) links "cessans etfugitivus" (rather
than "cessantes etfugitivos"). Kuehn also describes further distinctions made by lawyers in the fifteenth
century among different types of cessantes-among "true bankrupts," "pronounced bankrupts," and "bank-
rupts in receivorship [sic]." Id. at 333. For "rupti," the plural of ruptus, see infra text accompanying note
84 and
5
note 84. "Fallentes" are bankrupts.
4Du Cange wrote: "RUPTUS. Creditorum fraudator, aut decoctor qui dissolvit argentarium & foro
cedit." 5 GLOSSARIUM AD SCRIPTORES MEDIAE & INFIMAE LATINATITIS (Paris, sub oliva Caroli Os-
mont, opera et studio Ordinis S.Benedicti e Congregatione S. Mauri 1733 - 36) (author's translation).
5
W. WALTER W. SKEAT, AN ETYMOLOGICAL DICTIONARY OF THE ENGLISH LANGUAGE 46 (Ox-
ford, Clarendon Press 1946) (1879-1882).
"6The treatise was BENVENUTO STRACCHA, TRACTATUS DE DECOCTORIBUS (1553). See Trieman,
supra note 11, at 192 n. 9, 193 and 193 n. 12.
S7See SANTARELLI, supra note 56, at 3 - 4, for this schematization.
"5See Trieman, supra note 6, at 194.
bench breaking-"tell me where your money is, or we will break your

bench"-would seem not to have been a very potent means of extracting
information.
Despite the fact that the statutes typically contained harsh sanctions
against debtors, it is not clear to what extent the available sanctions were
actually applied. Although the evidence is indirect, inferences can be drawn
about the treatment that a bankrupt merchant might expect in fifteenth cen-
tury Florence from a diary entry of the silk merchant Gregorio Dati. He
wrote in 1408:
As a result of the adversity which overtook us in Barcelona,
and of the lawsuit here which followed it, and of the suspi-
cions concerning Simone's ventures and the calumnies that
were spread about, we were very short of credit. So we
were forced to withdraw from business and collect whatever
we could to pay our creditors, borrowing from friends and
using all our ingenuity, suffering losses, high interest and ex-
pense in order to avoid bankruptcy and shame. And al-
though my partner was in favor of going bankrupt so as to
avoid some losses and expenditures, I was resolved to face
ruin rather than loss of honor.8 9
Dati feared bankruptcy because it would bring disgrace. But Dati's busi-
ness partner apparently envisioned bankruptcy as a strategic business option.
Despite the fact that the Florentine bankruptcy legislation of the time au-
thorized "various forms of torture" and imprisonment, neither Dati nor his
partner apparently anticipated such treatment or one would have expected
Dati to have expressed some anxiety about such prospects. 90 Similar indirect
evidence of the likely consequences of bankruptcy may be found in a letter
written in 1392 to another merchant in Florence, Francesco di Marco Datini,
by Datini's partner:
Francesco,. I have heard you would embark on a new enter-
prise. Before God, I beseech you, open your eyes wide and
look well to what you do! You are rich and at ease, and not
a boy any more, that you should need to undertake so much
- and bethink you how we are mortal, and the man who
does many things will assuredly meet with disaster. . . . Be-
think you how Donato Dini must feel, who is now over sev-
"9 Two MEMOIRS OF RENAISSANCE FLORENCE: THE DIARIES OF BUONACCORSO PITTI AND GREGO-
RIO DAri 130 (Gene A. Brucker ed., Julia Martines trans., 1967).
'See SANTARELLI, supra note 56, at 165; see also GENE BRUCKER, LIVING ON THE EDGE IN LEO,
NARDO'S FLORENCE: SELECTED ESSAYS 87 (2005) (on the possibility of imprisonment). It may have helped
that bankruptcy proceedings would have been heard by Dati's peers of the Merchant's Court.
enty, and because he has tried to do too much is bankrupt,

and gets only five soldi in the lira!9 x
The bankrupt to whom the letter referred, "Donato Dini," had apparently
been put on an allowance by his creditors, probably as a result of a cessio
bonorum or composition. This may have been difficult and distasteful for a
proud merchant, but it was better result than what was perhaps theoretically
possible, torture or imprisonment. In any event, Datini was not deterred by
this warning and embarked on the "new enterprise." Although Datini lived
in a state of commercial anxiety, the fear of bankruptcy does not seem to have
been foremost in his thoughts: Datini was not really a daring man, and so to
him there seem to have been greater perceived risks-theft, loss of cargo at
sea, confiscatory taxation-than those of bankruptcy or the sanctions that
might follow from it. If the harshest sanctions were always applied, would
Datini have held such views? Both Datini's diary entry and the letter to
Datini thus seem to show a gap between what was statutorily possible and
92
what was likely to occur.
A Florentine statute that was briefly in effect in the fifteenth century is
further evidence of this gap. The statute required "future bankrupts" to ap-
pear before the authorities and present their account books for inspection;
although the debtor enjoyed a safe conduct during the inspection, one who
breached the law could be punished as a "rebel against the commune." 93 But,
as the legislators explained, they repealed the statute because it failed to
achieve its intended objective of deterring debtors:
Because it is clearly known that more than before men flee
from fulfilling their obligation to their creditors and think
little of shame, and easily come to bankruptcy and bring
their books to the palace, and having fifteen days security
while the signori and collegi inspect the books according to
the ordinance . . . they arrange many of their affairs and in-
duce the creditors to the settlement they want, or they run
away during the safeconduct, and thus the creditor is worse
off and the debtor remains richer. And if they reach an
agreement they want receivors [sic] appointed, but their
persons exempted from the penalties, and so one day they go
9iIRIS ORIGO, THE MERCHANT OF PRATO, FRANCESCO DI MARCO DATINI 90 (1957) (ellipses in
original). The soldi was a Florentine coin which was worth one twentieth of a lira. Id. at 23 - 24.
92
This was true as well in Venice. "Each time there was a rash of failures, reforms of law were
undertaken or derogations of existing law were granted." MUELLER, supra note 36, at 123.
93
Kuehn, supra note 83, at 319.
bankrupt fraudulently and the next they are before the mag-
94
istrates to render satisfaction.
Further evidence of the difference between the theoretical statutory
sanctions against bankrupts and bankruptcy as actually administered may be
found in the nearby commune of Siena. When the Tolomei firm defaulted in
its obligations in 1312, legislation was promptly enacted, and then re-enacted
seven years later, that authorized detention of partners in the Tolomei firm
upon petition by their creditors. 95 "[B]ut given the wealth, holdings and
96
prestige of the Tolomei" the legislation "probably remained unenforced."
The bankruptcy proceeding dragged on for another 21 years, and eventually
was settled by legislation providing that creditors were to be paid two thirds
of the amount of their claims. 97 The treatment of the Tolomei reflected a
general policy in which communal authorities "created elaborate procedures
and established numerous and short- and long-term commissions to help com-
panies in trouble settle their affairs and remain solvent if possible and, when
that proved impossible, to arrange for equitable settlements between debtors
and creditors ... "98
In addition to cases where statutory prescriptions may simply have been
ignored or overlooked, there were a number of specific mechanisms to miti-
gate the harshness of the statutes. Bankrupts sometimes obtained the "safe-
conducts" described above in the context of Venetian practice. 99 Bankrupts
94
1d. at 323, apparently a quotation, in translation, from "ASF, Provvisioni,registri 168, fols. 21v - 23r
(15 April 1477) ('ASF" undoubtedly refers to "Archivio di Stato of Florence"). Id. at 323 n. 33. Floren-
tine bankruptcy law and practice contained a number of contradictory elements, a full discussion of which
is outside of the scope of this study. For example, in theory males might be held liable for the debts of
sons, fathers or (if they were in business together) brothers, although there were various exemptions from
this rule, and resistance to enforcing it. Id. at 312 passim.
95
WILLIAM M. BOWSKY, A MEDIEVAL ITALIAN COMMUNE: SIENA UNDER THE NINE, 1287 - 1355,
at 255 (1981).
96
Id. Bias in the administration of bankruptcy law-wealthy debtors were less likely than poor debtors
to suffer severe sanctions, and creditors of modest means were less likely to be able to assert their rights
effectively-seemed to be a pervasive problem in medieval Italy. See, e.g., Kuehn, supra note 83, at 347 -
48, for further discussion of this issue. See also Mark Steele, Bankruptcy and Insolvency: Bank Failure and
its Control in Pre-Industrial Europe, in BANCHI PUBBLICI, BANCHi PRIVATI ET MONTI DI PIETA
NELLEUROPA PREINDUSTRIALE 183, 204 (1990) ("The success of some firms-for example in fourteenth
century Florence or fifteenth-century Venice-in evading the full rigours of the law emphasises the extent
to which social or political position determined the way law was applied.")
9
Id. at 256. The bankruptcy of the Bonsignori had followed a similarly dilatory course over a period
of about 12 years from 1298 to 1310. Id. at 248 - 52, and ENGLISH, supra note 80, at 55 - 78.
9
SBowsKY, supra note 95, at 256 - 57.
'9See, e.g., LOPEZ & RAYMOND, supra note 57, at 295, for a translation of the text of a safe-conduct
given by the creditors of a Genoese wool-maker in 1255. The creditors agreed that the wool-maker and
his wife could come to Genoa "for the sake of coming to a settlement with us in regard to the debt which
he us owes us," and promised "that we shall not raise impediments against them or cause impediments to
be raised against their persons or goods, in coming, staying, or returning" for the fifteen days during which
the safe-conduct was in effect.
also sometimes petitioned for, or were otherwise granted, official moratoria

against creditor action. For example, in Florence, in 1340-at a time when
some of the largest Florentine firms were undergoing financial difficulty-by
official proclamation all troubled companies were given immunity from the
claims of creditors for three years. 00o It was also possible, at least in four-
teenth century Florence, for the debtor to initiate a bankruptcy proceeding,
to negotiate a compromise of his or its debts during the course of the proceed-
ing, and to be released from further claims of creditors as part of the deal: all
this was accomplished by the Peruzzi firm and its partners in 1347101 This
was approximately five hundred years before "voluntary" bankruptcy-bank-
ruptcy initiated by the debtor-first was introduced in English and Ameri-
can law, and over five hundred years before voluntary bankruptcy and
10 2
discharge both became permanent features of law in the United States.
Such results well support the conclusion that in Florence, "bankruptcy proce-
dures, although chaotic at times, were well understood, open to public scru-
10 3
tiny, and produced reasonably equitable justice, at least for Florentines."
There were also some instances, in the bankruptcy of partnerships, of
deviation from the prevailing principle that each partner faced joint and un-
limited liability for partnership debts1 0 4 For example, in the successive fail-
ures of the two largest banking firms in Siena in the early fourteenth century,
the communal authorities limited the liability of partners to the amount of
10 5
their investment in the partnership.
None of this is intended to leave the impression that bankruptcy law in
Italy in the Middle Ages was, as drafted, largely benign. Venice seems to
have been exceptionally lenient: on the whole, Italian bankruptcy law was
"°EDWIN S. HUNT, THE MEDIEVAL SUPER-COMPANIES. A STUDY OF THE PERUZZI COMPANY OF

FLORENCE 226 (1994).
W Id. at 233 - 34.
'° 2On the adoption of voluntary bankruptcy under federal law in the United States -initially in 1841
and on a permanent basis only in 1898,-see Charles Jordan Tabb, The History of the Bankruptcy Laws in
the United States, 3 AM. BANKR. INST. L. REV. 5, 16 - 19, 23 26 (1993) and John C. McCoid, II, The
Origins of Voluntary Bankruptcy, 5 BANKR. DEV. J. 361 (1988) [hereinafter McCoid, Origins]. On the
adoption of discharge in the United States-initially in 1800, on a very limited basis, and on a permanent
basis only in 1898, see Charles Jordan Tabb, The HistoricalEvolution of the Bankruptcy Discharge,65 AM.
BANKR. L.J. 325 (1991) [hereinafter Tabb, Discharge] and McCoid, supra note 5. On the adoption of
voluntary bankruptcy in England, see IAN P.H. DUFFY, BANKRUPTCY AND INSOLVENCY IN LONDON
DURING THE INDUSTRIAL REVOLUTION 103 (1985) (discussing statutes adopted in 1842 and 1844 which
afforded limited procedures for voluntary bankruptcy). But McCoid, Origins, supra, 361 n. 4, states that
voluntary bankruptcy was first introduced in England in 1849.
3
11 EDWIN S. HUNT & JAMES M. MURRAY, A HISTORY OF BUSINESS IN MEDIEVAL EUROPE, 1200 -
1550 at 114 (1999). The statement-"at least for the Florentines"-reflects the fact that the larger
Florentine firms such as the Peruzzi often had operations, and thus creditors, outside of Florence.
04
1 SANTARELLI, supra note 56, at 176, 185.
05
1 ENGLISH, supra note 81, at 73, 96. See also MUELLER, supra note 36, at 110 ('there are two
indications, a century apart, that bank partnerships could be of limited liability").
"essentially penal in nature." 10 6 Santarelli's treatise on medieval Italian bank-

ruptcy law contains a section on the "various functions of torture in bank-
ruptcy procedure."10 7 But-and again we rely on Santarelli's research-there
was, from the second half of the fifteenth century, "a profound transformation
in the legislative orientation to the penal aspects of bankruptcy."108 For ex-
ample, in a decree adopted in Milan in 1473, bankruptcy was no longer neces-
sarily considered a crime: the bankrupt could, by providing evidence that his
bankruptcy was accidental, or at least not incurred to defraud creditors,
avoid punishment. 10 9 Florence also seemed to experiment with relaxation of
its bankruptcy statutes in the fifteenth century: "to attract back to Florence
those who had been exiled as cessantes et fugitivi," a law enacted in 1459
"provided a mechanism to release" such exiles from a ban which put them
outside of the protection of the law, and thus under which they might be
"injured or killed by anyone with impunity."110 If such debtors "could ar-
range a settlement with their creditors, the ban would be lifted in return for
the payment of several small fines."l' Thus, over time there seems to have
been a movement toward the Venetian approach elsewhere in Italy. And, as
we have seen, even when statutes were strongly penal, there was often a gap
between the prescriptions of the statute books and the extent to which such
12
prescriptions were actually given effect."
Could not a customary practice of bench breaking have co-existed with
the Italian bankruptcy statutes? After all, "one of the ways in which private
force was used in the Middle Ages was to obtain justice."" 3 Even so, it does
not seem likely that bench breaking was a chosen form of redress. What
additional impact would bench or table breaking have on a debtor facing the
possibility of torture? In other ways, bench breaking would be of little bene-
fit to creditors. Why would creditors break the bench or table of a debtor
when all of the debtor's goods-including (except in those places where the
bench was leased from local authorities) his bench or table-would be as-
signed to them, or sold for their benefit, during bankruptcy proceedings? Al-
though there was often a wide gap between statutes as written in the
medieval period and what was done in practice, given the statutory backdrop
bench breaking would seem to be purposeless. It would be as if, at the start of
06
. SANTARELLI, supra note 56, at 118.
17
id.at 163 - 66.
1°Sld, at 147.
09
1d. at 148.
"'Kuehn, supra note 93, at 312, 318.
"'Id. at 318.
" 2 Kuehn, supra note 93, at 348, concluded his survey of Florentine bankruptcy legislation of the
1400's with the observation that '[t]he laws may have protected creditors' right, but the mechanisms of
enforcement
3
were subject to abuse and malfunction."
11 CASSANDRO, supra note 56, at 7.
a bankruptcy case today, creditors customarily destroyed the facilities of the

debtor.
Light can be shed on the occurrence, or non-occurrence, of bench breaking
in Italy in another, indirect way. In the Middle Ages, Italian merchants and
bankers spread out and settled in all of the major commercial centers of Eu-
rope, going even as far afield as Poland.114 They acted as bankers at the major
fairs. They of course traveled with their own commercial customs and out-
look and typically transferred some to their hosts.115 Huvelin rhapsodized on
the Italian role in the Middle Ages:
Italian commerce had acquired a preponderance in all of Eu-
rope. It is sufficient to recall the names of the great cities
that thrived on commerce - Venice, Genoa, Amalfi, Pisa,
Lucca, Siena, Milan, Florence, and the influence that the
Lombard merchants had on the economic development of the
west, to convince us of that fact." 6 The Italian fairs are the
first in which the great wheels of commerce developed. It is
there that one encounters for the first time the counsuls...
the particular practices in matters of payment, exchange,
bankruptcy, etc. [But t]he true Italian fairs are our French
17
fairs, and especially those of Champagne.
Italian bankruptcy law thus became highly influential in France, Ger-
many, and elsewhere that the Italians were present.' 18 So, if bench breaking
were endemic in Italy, one would certainly expect to find some evidence of
114
See BRAUDEL, supra note 28, at 165; ARMANDO SAPORI, THE ITALIAN MERCHANT IN THE MID,
DLE AGES 74 - 77, 90 - 91 (Patricia Ann Kennen trans., Norton 1970).

" 5 See, e.g., LoPE± & RAYMOND supra note 57, at 9.
1161n medieval sources, and in some scholarly writing about medieval Europe, the word -Lombard" has
two meanings. In some cases, "Lombard" designates those who came from the kingdom of Lombardy in
northern Italy. However, when used in a geographic or national sense, the term is sometimes used to refer
more generally to any northern Italian or even any Italian. The word "lombard"-with a lower case "I-
designates a profession, typically a "pawnbroker", but sometimes a banker or even merchant, who may be
from Lombardy, northern Italy or even anywhere in Italy. See RAYMOND DE ROOVER, MONEY BANKING
AND CREDIT IN MEDIEVAL BRUGES. ITALIAN MERCHANTBANKERS LOMBARDS AND MONEY-CHANG,
ERS. A STUDY IN THE ORIGIN OF BANKING 99, 124, 140 n. 3 and particularly 346 (1948), for an effort to
elucidate the distinctions. Huvelin himself used the term "generically," to mean any Italian merchant.
HUVELIN, supra note 40, at 251.
11 7
HUVELIN, Supra note 40, at 279 - 80 (1897). Huvelin is part of a French scholarly tradition of
admiration for the Italian achievement. For more in the same tradition, see FERDNANDBRAUDEL, OUT
OF ITALY: 1450 - 1650 (Sian Reynolds trans. 1991) (1986).
"SOn the Italian influence on French bankruptcy law, see PERCEROU, supra note 82, at 12 - 16, 19,
and supra note 39, at 563; on the Italian influence in Germany, see J.H. DALHUISEN,
BRISSAUD, COMPOSI-
TIONS IN BANKRUPTCY: A COMPARATIVE STUDY OF THE LAWS OF THE E.E.C. COUNTRIES, ENGLAND
AND THE U.S.A. 16 - 17 (1968).
bench breaking outside of Italy as well. We consider next the case of France,
where according to Huvelin the only true Italian fairs were to be found.
C. BENCH BREAKING AT THE CHAMPAGNE FAIRS AND ELSEWHERE

IN FRANCE?
"In the thirteenth century, the Fairs of Champagne were the centre of
western commerce." 119 Almost all the transactions at the fairs were con-
ducted on the basis of credit.120 Huvelin, writing in 1897, claimed-without
citing any source-that at the Champagne fairs, the bench of the money-
changer in flight would be broken. 121 As Huvelin showed in his classic
study, creditors' rights were indeed aggressively enforced at the Champagne
fairs.122 The particular problem that creditors faced at the Champagne and
other fairswas that most of the merchants and bankers who did business
there had come from other countries, particularly Italy, Spain, Flanders and
England.' 23 Once a debtor and his creditors had left the fair and returned to
their respective home countries, collection was quite difficult, both legally
and practically.' 2 4 Debtors who defaulted could thus be designated as "fuitifs
de foire"--fugitives of the fair-as a result of which creditors would have the
right to cause seizure of the goods of the debtor, or seizure of his person,
through the offices of "gardes des foires" who had judicial powers. 125 The
26
gardes des foires might also impose criminal sanctions on the debtor.'
1192 BRAUDEL, supra note 37, at 817; see also R.D. Face, Techniques of Business in the Trade between
the Fairs of Champagne and the South of Europe in the Twelfth and Thirteenth Centuries, 10 Econ. Hist.
Rev. 427, 428 (1958) (in the twelfth and thirteenth centuries, the fairs of Champagne functioned "as the
western hub of an expanding, truly international commerce" and "dominated" trade "between the north
and south of Europe"). Champagne is a region in France, and the fairs were in fact conducted at a number
of different towns within that region in accordance with a yearly cycle. Id.at 427 - 29.
i2OSee Face, supra note 119, at 437.
2
i iHuVELIN, supra note 40, at 487.
at 467 - 98.
122Id.
i 2'Huvelin states:
Among the foreign merchants, it is necessary to cite at the first rank those of Flan-
ders and Italy. Italians always play the preponderant role there. .... Alongside the
Lombards one finds at the Champagne fairs ...merchants from the most diverse
countries: England, Scotland, Flanders, Brabant, Hainaut, Germany, Savoy, Spain
and also from the East.
Id. at 251-52 (author's translation). The areas which comprised Brabant, Flanders and Hainaut in the
medieval period are today largely within the borders of Belgium. For documentation of the presence of
merchants from Lucca and elsewhere from northern Italy at the Champagne fairs from as early as the start
of the thirteenth century, see Thomas W. Blomquist, The Early History of European Banking: Merchants,
Bankers and Lombards of Thirteenth-CenturyLucca in the County of Champagne, 14 J. EUR. ECON. HINT.
521 passim
2
(1985).
1 4HUVELIN, supra note 40, at 427.
125Id"
126CLAUDE DupOuy, LEa DROITS DEs FAILLITES EN FRANCE AVANT LE CODE DE COMMERCE 36
(1960).
Where the debtor had fled with his possessions, and thus both were outside
of the jurisdiction of the gardes des foires and the Count of Champagne, an-
other procedure was sometimes invoked: "la defense des foires."127 This was
an appeal to foreign authorities to return the debtor or his goods to the gardes
de foires, failing which the gardes might seize goods of the debtor's compatri-
ots in satisfaction of his debts. 128 This procedure was invoked, albeit with
only partial effect, in 1299 against a Florentine horse-dealer and his associates
who were then living in London. 129 The gardes des foires wrote to the lord-
mayor of London; the lord-mayor, after an initial defense of the debtors, se-
questered their goods, deferentially advised the gardes des foires that he lacked
the authority to comply with their request, and encouraged them to petition
the King of England.' 30 But creditors at the Champagne fairs did not always
seek recovery from defaulting debtors coercively: creditors might enter ac-
cords (concordats) with the debtor, in which debt would be compromised,
and the majority of creditors might bind a minority in giving effect to the
settlement.131
The relative rigors of the bankruptcy law at the Champagne fairs were
well-known. 13 2 Consider what an eyewitness, Francesco Balducci Pegolotti, a
Florentine merchant of the fourteenth century, had to say about the fairs in
Champagne. "And when the date of completing settlement at the fair ar-
rives ... he who cannot make the settlement that has to be made nor cannot
[otherwise] satisfy he with whom he has made a settlement date, is held to
have become bankrupt in the fair and forever thereafter will not be trusted
with any money nor be able to appear at the fair." 133 Pegolotti seemed star-
3
tled by the apparent stringency of this requirement of timely settlement. 4
12 7Until the late thirteenth century, when it was absorbed into France, Champagne was an indepen-
dent feudal fiefdom, the Comt6, ruled by a Count, or in French "Comte."
2
8HUVELIN, supra note 40, 429 - 430.
i29CORNELIUS WALFORD, FAIRS PAST AND PRESENT. A CHAPTER IN THE HISTORY OF COMMERCE
250 - 260 (Burt Franklin, 1967) (1883). Walford provided English versions of the original letters, which
presumably were originally written in Latin, although he did not describe these versions as translations,
and indeed created the impression that he was presented the letters in their original form ("They have
been carefully preserved ... for six centuries and now for the first time gain the glory of printer's ink"). Id.
at 249.
i°ld. at 255 - 260. Huvelin cited the letters as implicit evidence of the efficacy of the system of
reprisals. HUVELIN, supra note 40, at 431.
i1DuPouY, supra note 126, at 39 - 40
2
" HUVELIN, supra note 40, at 486.
1'FRANCESCO BALDUCCI PEOOLOTTI, LA PRACTICA DELLA MERCATURA 235 (Allan Evans ed.,
1936) (author's translation). LA PRACTICA DELLA MERCATURA is a transcription of a manuscript from

the fourteenth century. A somewhat different translation of the same passage (or more precisely, a transla-
tion into English of the German translation of the passage) may be found in RICHARD EHRENBERG, CAPI.
TAL & FINANCE IN THE AGE OF THE RENAISSANCE: A STUDY OF THE FUGGERS AND THEIR
CONNECTIONS 318 (H.M. Lucas trans., 1928).
1i4It was commonly the case that at the conclusion of fairs, a period was set aside for the settlement of
But surely he would have also said something if those who paid late also had
their benches broken (or conversely, commented on the strange failure of the
French to follow Italian practice in that regard if there were such a practice
in Italy.) The availability of various other, more far-reaching remedies ren-
ders it unlikely that creditors would resort to primitive but unproductive
exercises such as bench breaking.
If bench breaking occurred in Champagne or elsewhere in France, one
would expect that the practice would find some expression in the French
language. As previously noted, there is a French cognate of bankruptcy, "ban-
queroute."' 35 Yet almost all the authorities, even Coke, agree that in the
French language this word never connoted bench breaking; Huvelin is per-
haps the only exception.' 36 Huvelin's view that the word was used at the
Champagne fairs with such a meaning is also vulnerable to challenge on
chronological grounds: at least one authority states that the term "banque-
route" first appeared in French in the late fifteenth century, when the Cham-
pagne fairs were well in eclipse. 137 In 1519, in a letter to Maximilian I of
Austria, Margaret of Austria used the term without a hint of any connection
to bench breaking: "What say you, my lord, may I beseech you for your help,
or shall it be necessary for me to become bankrupt?"' 138 The term banque
route appeared in a French bankruptcy ordinance in 1536, connoting "fraudu-
accounts. This was often a matter of statutory prescription. At Champagne, if debts could not be settled
within the prescribed time, "fair letters"-in effect, judgments issued by a court-were awarded to the
creditors of the debtor. USHER, supra note 33, at 120. Hence, Pegolotti's comment that failure to make
timely payment resulted in bankruptcy. Similarly, at Medina del Campo, legislation addressed the timing
of settlements with bankers. According to SMITH, supra note 36, at 72, Spanish royal legislation enacted
in 1583 enjoined the settlement of all bills of exchange payable during the one hundred days' duration of
the fairs." In contrast, in fourteenth century Italy, a more relaxed attitude toward payment of debts on
their stated maturity dates was often taken. See, e.g., RICHARD K. MARSHALL, THE LOCAL MERCHANTS
OF PRATO: SMALL ENTREPRENEURS IN THE LATE MEDIEVAL ECONOMY 75 (1999) ("Rarely did a
merchant remit in full within the term specified.").
'"See supra note 40 and text accompanying notes 15, 40.
iS6Thus SKEAT, supra note 85, at 46, wrote: "The true French word ... was banquerouttier (Cot-
grave), formed from banqueroutte, f., which properly meant 'a breaking or becoming bankrupt.'" "Cot-
grave" refers to RANDLE COTGRAVE, A DICTIONARIE OF THE FRENCH AND ENGLISH TONGUES (1611).
i"'See Centre Nationale de laRecherche Scientifique, http://atilf.atilffr (search for banqueroute) (last
visited March 13, 2006) stating that "banqueroute" first appeared in French in 1466, and was "Empr. a
l'ital. bancarotta" [i.e., was borrowed from the Italian word bancarotta]. The link between the French and
Italian form of the words was recognized in the middle of the eighteenth century by the eminent lexicogra-
pher, Samuel Johnson, who found the precursor to "banqueroute" in what he identified as the Italian
"bancorupto." See definition of "bankruptcy," SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LAN-
GUAGE (Times Books 1979). Italians played a large role in French commerce at the Champagne fairs and
elsewhere, and the Italian language correspondingly infiltrated French, particularly in commerce. See also
PERCEROU, supra note 82, at 14 n. 1; Trieman, supra note 11, at 193 n. 13.
iS'See http://atilf.atilf.fr, supra note 137 ("A quoy, Monseigneur, vous supplie vouloir remedier, ou il
me conviendra faire bancque rotter) (author's translation). In a statute adopted in 1488, when Bruges
was under the rule of Maximilian I, a variant of the phrase also appeared: rompture desdictz bancquiers. DE
ROOVER, supra note 116, at 332.
lent bankruptcy. 139 And in 1592, King Henri IV of France, himself deeply in
debt, said "the many bankrupts that [King Philip of Spain] has made are
evidence enough that he is more blameworthy than we." 140 This observation
expressed an important fact of economic life in the medieval period and there-
4
after: kings who did not pay their debts made their creditors bankrupt.' ' If
kings were making creditors bankrupt, then Ducange was correct: default by
the debtor breaks, and makes bankrupt, the debtor's creditors.
French bankruptcy law developed somewhat more slowly than in Italy
and had perhaps greater severity.' 42 Until the late seventeenth century,
there seem to have been several competing strains in French bankruptcy law.
For a time, the principle of first in time, first in right-supposedly of Ger-
manic origin-was given effect: that is, the first creditor who obtained a
judgment could seize all of the debtor's assets. 143 An antithetical principle
was equality of distribution among creditors. There are French documents as
early as the twelfth century, as well as a Parisian ordinance from 1510, evi-
dencing that practice. 144 The two competing concepts were combined in a
single Parisian ordinance in 1580: one article provided that in cases of the
insolvency of traders, principles of equality of distribution applied; for other
debtors, the first who obtained a judgment could take all." a5 In the sixteenth
century and early seventeenth century, various royal bankruptcy edicts were
also issued. The first was that of King Francois I in 1536, and applicable to
Lyon.' 46 Under the edict of 1536, provision was made for creditors to meet,
and elect one or more "deputes"-a kind of receiver or trustee-and a "proc-
urator" to conduct trials.' 4 7 Although one scholar claims that this edict
brought Italian law to Lyon, another, more persuasively, contends that this
148
and a series of other royal edicts were primarily punitive in purpose.
139
BRISSAUD, supra note 39, at 563.
1403 RECUEIL DES LETTRES MISSIVES DE HENRI IV, at 658 - 60 (M. Berger de Xivrey ed., Paris,
Imprimerie Royale 1846) ("plus coupable que nous, comme tant de banqueroutes qu'il a faictes . .. sont
assez des tesmoignages"), quoted in THEODORE B. LEINWAND, THEATRE, FINANCE AND SOCIETY IN
EARLY MODERN ENGLAND 20, 155 (1999)(author's translation).
14'See, e.g., Carla Rahn Phillips, The Spanish Wool Trade, 1500 - 1780, 42 J. ECON. HIST. 775, 793
(1982) (-many of the wealthiest [Spanish wool merchants of the sixteenth century] were enticed into
lending money to the crown and were subsequently ruined in the state bankruptcies of 1575 and 1596").
142Dupouy, supra note 126, at 4.
143Louis Edward Levinthal, The Early History of Bankruptcy Law, 66 U. PA. L. REV. 223, 244 - 45
(1918); PERCEROU, supra note 81, at 10.
44
1 PERCEROU, supra note 82, at 11, 17.
1451Id. at 11.
146Id. at 19. The French crown in the sixteenth century had a direct interest in the regulation of
banks at the Lyon fair, since the bankers there provided the principal source of financing for the monarchy.
FREDERIC J. BAUMGARTNER, FRANCE IN THE SIXTEENTH CENTURY 77 (1995).
i4lLevinthal, supra note 143, at 245.
14SLevinthal, id., at 245 and 245 n. 98, asserts that the edict of 1536 brought Italian law to Lyon, but
cites the National Ordonnance de Commerce of 1673 in support of that proposition; in contrast,
There was a third strain to the law as well, which had first surfaced in
France as early as the thirteenth century: cessio bonorum, or in French, la
cession de biens. In an early period, this could only be obtained through the
issuance of royal letters, but eventually such letters were issued as a matter
of course. 149 The practice was sufficiently common in France to support pub-
lication of a treatise on it in the late sixteenth century.1 50 La cession de biens
became part of the first French national bankruptcy statute in 1673, and
became, "at least in the domain of civil law, the normal and regular insolvency
procedure."' 5 ' The principles were similar to those in Italy. If certain condi-
tions were met-issuance of an order by a court, agreement by all or three
quarters of the creditors-then upon surrendering his goods, the debtor
would be free from risk of bodily constraints. 5 2 In theory, creditors retained
the right to pursue property that the debtor latter acquired, but in practice
the debtor could usually more or less resume a normal life.' 53
D. BENCH BREAKING AT MEDINA DEL CAMPO AND ELSEWHERE IN

WESTERN EUROPE?
Outside of cities such as those of northern Italy, where constant commer-

cial activity was the way of life, in much of medieval Europe trade was con-
centrated, geographically and temporally, at periodically held trade fairs.
After the decline of the Champagne fairs in the fourteenth century, others
sprang up. Today Medina del Campo is a small town in central Spain with a
population of about 20,000.154 But despite its present obscurity, in the six-
teenth century Medina del Campo "played a world-wide role" as the site of
an important trade fair. 55 It was here, according to Escriche, that benches
PERCEROU, supra note 82, at 18, says of that edict, and others, that "elles n~gligeiant tout ce qui se rfre a
la liquidation des biens pour n'envisager que le cotE r~pressif de la question" ("they ignore all which refers
to the liquidation of goods and consider only the repressive side of the question") (author's translation).
149James Q. Whitman, The Moral Menace of Roman Law and the Making of Commerce: Some Dutch
Evidence, 105 YALE L. J. 1841, 1875 n. 128 (1996).
'GABRIEL BOUNIN, TRAITE SUR LES CESSIONS ET BANQUEROUTTES (1586).
5
i IDupou, supra note 126, at 146 - 49 (L'ordonnance de 1673, article premier and article 2); AR-
MAND GUILLON, EssAi HISTORIQUE SUR LA LEGISLATION FRANCAISE DES FAILLITES ET BANQUEROUTES
AVANT 1673, at 63 (1904) (author's translation).
"'Id. at 148.
iSSId.; PERCEROU, supra note 82, at 22 - 24.
iS4See http://www.turismomedina.net/english.htm (La Oficina de Turismo de Medina del Campo)
(last consulted August 15, 2006) for the current population. BRAUDEL, supra note 28, at 83, wrote:
today Medina del Campo is a husk, an empty shell of the old fair."
"'See Verlinden, supra note 22, at 152 - 53. On the fair at Medina del Campo, see also CARLA RAHN
PHILLIPS & WILLIAM D. PHILLIPS, SPAIN'S GOLDEN FLEECE. WOOL PRODUCTION AND THE WOOL
TRADE FROM THE MIDDLE AGES TO THE NINETEENTH CENTURY 176 - 77 (1997). Phillips and Phillips
suggest that the primary role of the fair may have been financial: the settlement of debts related to wool,
and perhaps also the negotiation of advance purchases.
were first broken.' 5 6

As discussed above, Escriche explained bench breaking at Medina del
Campo as a quasi-judicial sanction imposed on Genoese bankers who had
committed acts of bad faith.' 5 7 But this account raises certain issues of logic
as well as of evidence. First, it fails to connect bench breaking to bankruptcy:
why should a practice purportedly first directed against unethical Genoese
bankers become "generalized" to mean "fraudulent insolvency?" The notion
that the Genoese themselves spread such a practice is unsatisfactory: it would
seem hardly in their self-interest to do so. Second, Escriche's account is not
supported.'5 8 One cannot excuse the lack of corroboration on the grounds of
the absence or paucity of records from the period. To the contrary, medieval
merchants were prolific correspondents, and Castilian (and Italian) legal and
business records from the fifteenth and sixteenth centuries are still extant and
in some cases have been published. 1 9 Such records include those of a
merchant named Simon Ruiz who lived in Medina del Campo in the late
sixteenth century and often discussed bankruptcy with his business corre-
spondents.16° But, at least in the letters that have been published, Ruiz and
his counterparts usually referred to bankruptcy as "la quiebra" or occasionally
to someone who was "insolviente," did not use the phrase banca rotta, and
never spoke of bench breaking or any equivalent acts.' 6 ' They did, however,
describe formal court-supervised proceedings, such as that of Diego Bernuy, a
15
6See supra text accompanying note 42.
15 7See supra text accompanying note 42.
"'5A history of the fair at Medina del Campo that was published in the early twentieth century also
makes a passing reference to the connection between bench breaking and bankruptcy: "Whereas the
banker or money changer takes the name of the bench or counter used to conduct his operations, so too
when the merchant fraudulently defaulted on his obligations his bench or table was broken to signify his
degradation and from here [comes the term] bankruptcy, meaning abnormal exchange in contracts." Es,
PEJo & PAZ, supra note 43, at 104 (1908). Espejo and Paz identified as one of two sources for this
statement a local guidebook (D. ANTERO MOYANO, GUIA DE MEDINA)-hardly a reliable historical
source. (The other is a work by 'Salva." that I could not otherwise identify.) Furthermore, Espejo and
Paz (unlike Escriche) did not claim that the misconduct of the Genoese gave rise to bench breaking at the
fair, that consuls administered the ritual, or that the term bankruptcy first arose in Medina del Campo.
iS'The archives of Francesco di Marco Datini in Prato, Italy contain 153,000 letters. BRAUDEL, Supra
note 23, at 96.
i6°For example, several volumes of business letters from the late sixteenth century between a leading
Castilian merchant, Simon Ruiz, and his correspondents in Florence, Antwerp and elsewhere in Western
Europe have been published under the titles LETTRES MARCHANDES tCHANGES ENTRE FLORENCE ET
MEDINA DEL CAMPO (F. Ruiz Martin ed., 1965) [hereinafter LErrRES MEDINA], and LETTREs MAR-
CHANDES D'ANvERS (V. Vasquez de Prada ed., 1960) [hereinafter LETTRES ANVERS].
i6iLETTRES MEDINA, supra note 160. References to bankruptcy may be found in letters numbered 28,
31, 49, 90, 92, 95, 98, 99, 103, 104, 110, 112, 113, 135, 122, 126, 139, 149, 205, 208, 209, 212, 215, 269,
273, 275, 293, 298, 300, 304, 315, 316, 321, 328, 350, 353, 356, 363, and 410, although these are not
confined to bankruptcy at Medina del Campo. References to bankruptcy in Spain may be found in letters
numbered 212, 269, 275 and 384. Additional references to bankruptcy in Medina del Campo, and else-
where in Europe, may be found in LET-rREs ANVERS, supra note 160, and in the editor's comments on the
letters. See, e.g., 2 LETTRES ANVERS 39 - 40 (letter 52); id. 44 - 45 (letter 59); id.
at 183 - 84 (letter 276);
merchant from the nearby town of Burgos, in 1580.162 If banca rotta as a

phrase and practice were born in Medina del Campo, then it would be re-
markable indeed if Ruiz, a native of that town, never used the phrase or
commented on it. 16 3 Third, there would be a problem of chronology if we
were to accept Escriche's proposition that the phrase banca rotta diffused
from Spain and became the basis of the term bankruptcy elsewhere. Al-
though the date of the first fair at Medina del Campo is not known, it is
generally believed to have been held sometime in the early 1400's.164 Yet,
according to at least one historian, in Venice in the late 1300's, an Italian
version of the term, "bancarotta('bancum est ruptum')," was already in use-
but "simply to signify a bank failure, without reference to any ritual act of
breaking the banker's table or bancum." 165 This alone would seem fatal to
the notion that the word bankruptcy arose from practices at Medina del
Campo.166 Lastly, the claim that magistrates at Medina del Campo imposed
locally-devised sanctions for bankruptcy implies that a clear field existed for
such measures; but in fact, since the thirteenth century, royal legislation sup-
plied statutory remedies for bankruptcy and fraud in Castile, and commercial
disputes at the fairs of Medina del Campo were subject to the jurisdiction of
67
royal courts.'
3 LETrREs ANVERS, 30 - 31 (letter 655). See also 1 LETTRES ANVERS 165 - 78 for a description by the
editor of letters, unpublished and published, that discuss bankruptcy.
1623 LETTRES ANVERS, supra note 160, at 30 (letter 655) and 2 LETTRES ANVERS at 171 (editor's
description of the letter). If bench breaking were in vogue, then Bernuy's bankruptcy would have seemed
a good candidate, as it was his second. Id.
63
1 See, e.g., LETrREs MEDINA, supra note 160, at 170 (letter 212).
64
1 We know that the fair existed since 1421, because in that year the "Queen [of Castille] issued a
regulation, appointing a Director in Chief... and prescribing with great detail the location of the various
merchants, craftsmen and bankers." USHER, supra note 33, at 126, Usher stated that, although "we have
no record of the beginnings of the fairs at Medina del Campo,- id., "there were two fairs at Medina del
Campo from the beginning of the fifteenth century." Id. at 125.
65
1 See MUELLER, supra note 36, at 125. See also SANTARELLI, supra note 56, at 47.
166Another question arises from the fact that although Escriche's treatise was revised and reprinted on
several occasions, the story of the purported origins of -banca rotta" does not appear in all editions. See
supra
16
note 42. In what edition did the story first appear and who put it there?
VSee EsPEjO & PAZ, supra note 43, at 105, 12. Bankruptcy was covered in the massive law code of
King Alfonso X, in Part V, compiled in the thirteenth century. For an English language translation of the
relevant provisions of King Alfonso's code, see 4 LAS SIETE PARTIDAS: FAMILY, COMMERCE AND THE SEA
1169 - 74 (Samuel Parsons Scott trans., Robert I. Burns ed., 2001). The code included provisions for
cesssio bonorum. Id. at 1170, title xv, laws I - III. See RICHARD L. KAGAN, LAWSUITS AND LITIGANTS
INCASTILE, 1500 - 1700, at 117 and 117 n. 93 (1981), for a list of commercial cases arising from the fair at
Medina del Campo that were heard by the chancilleria, the royal court of appeal. In the late sixteenth
century, the Spanish state also intervened on several occasions to suspend the date at which payments
were due at the fair at Medina del Campo, thereby providing relief to debtors during periods of low
liquidity. EsPEJO & PAZ, supra note 43, at 151 - 64. See also supra note 134. Such state-imposed suspen-
sions, which damaged Genoese bankers, id. at 157, show that debt obligations were not always sacrosanct
at the fair and seem inconsistent with the proposition that debtors who defaulted there would suffer
severe sanctions such as bench breaking. Lastly, if benches were indeed broken at Medina del Campo, this
Although Ruiz's correspondence does not mention bench breaking, it does

tell us something about bankruptcy in Western Europe in the late sixteenth
century. We say "western" Europe, and not just Medina del Campo, because
Ruiz traded with and obtained commercial intelligence from other parts of
Spain, Italy, France, and Flanders. Bankruptcy occurred often in Ruiz's
world: in the period from 1558 to 1584 covered by the published letters,
Ruiz and his correspondents mention about 30 different bankruptcies. 168
These bankruptcies had international scope: for example, there is discussion
of a German merchant who has become a bankrupt in Venice, and of the
impact of various Italian bankruptcies on Spanish creditors.' 69 Ruiz and his
correspondents also took an entirely commercial, as opposed to moral, view of
such events: their reports were factual and free of judgment, and ascribed
failures to market conditions or other external forces-failure of a bank or
7
default by the king on his debt-not the fraud or weakness of the debtor. 0
Their focus was on avoiding loss and achieving recovery, not on retribu-
tion. 17 Merchants with such a view of the world would see no benefit in
shaming the bankrupt: as they often acknowledged, but for divine providence,
they might suffer the same fate, and their goal as creditors was simply return
of their money. It is hard to fit bench breaking into all of this.
If bench breaking was not practiced at Medina del Campo, at other trade
fairs, in France, or in Italy, then was it practiced anywhere? If it was, then
the practice must have been neither widespread nor long sustained, for it has
left little trace. This may be another case where the absence of evidence is
indeed evidence of absence. We might end here, and say that we have ex-
ploded a myth: although the occurrence of bench breaking cannot definitively
be disproved, it must have been an isolated and infrequent occurrence, at
least for the period in which written evidence still exists. But can we say
that bench breaking, whether or not widely practiced, or indeed practiced at
all, is nonetheless a useful symbol of the state of pre-modern bankruptcy law
undoubtedly would have given rise to the same complication that such a practice would have created in
Venice and Florence: in all three places, the bankers' booths were apparently leased to, and not owned by,
the bankers who used them. See KAGAN, supra, 117 n. 93 (referring to a lawsuit concerning the rental of
change booths), supra text accompanying note 76 and note 76.
i"SSee LETTRES MEDINA, supra note 160, at 471 (for a list of the persons whose bankruptcies are
described) and LETTRES ANVERS, supra note 160 (for additional bankruptcies). One scholar wrote:
"Throughout the correspondence of the Ruiz's, as well as throughout other contemporary documents, one
discovers, as a characteristic of this era, the extraordinary frequency of bankruptcy, both of simple traders
and great financial houses. .. " HENRI LAPEYRE, UNE FAMILLE DE MARCHANDS. LES Ruiz 113 (1955)
(author's translation).
i69See LETTRES MEDINA, supra note 160, at 309 (letter 356) for the German merchant in Venice.
1701d. at 213. Defaults by the Spanish crown in 1575 and 1596 caused many bankruptcies among
Spanish merchants. PHILLIPS & PHILLIPS, supra note 155, at 183, 246.
i7 'In one bank failure, foreshadowing modern practice, certain creditors achieved recovery by the sale
of their claims. See LETTRES MEDINA, supra note 160, at 309.
across Western Europe? Although it is difficult to generalize about pre-mod-

ern bankruptcy law across Western Europe, because there was considerable
variation in responses to bankruptcy from place to place and over time, it
would be a gross oversimplification to view it as predominantly punitive.
Rather, there were efforts to adapt the law to commercial and even humani-
tarian concerns, which often resulted in debtors reaching accommodation
72
with their creditors or otherwise being given relief.'
II. PRE-MODERN BANKRUPTCY LAW REEXAMINED

To equate bench breaking with Italian bankruptcy practice would be par-
ticularly unjust and inaccurate. From the Middle Ages until the early mod-
ern era, Italians were instrumental in the diffusion of bankruptcy law,
including use of cessio bonorum, in western Europe. 7 3 During this period,
Italian practices influenced the development of bankruptcy law in France,
Germany and undoubtedly other places where cessio bonorum infiltrated,
74
such as Holland.1
There is one Western European country, however, where the view of
172A similar conclusion, based on a survey of different evidence from a number of jurisdictions, was
reached by Steele, supra note 96, at 204, who found that -'rational' bankruptcy procedures existed even in
medieval Europe." This conclusion is not altered by the existence in some places, such as Barcelona, of
extreme sanctions, including the death penalty, for bankruptcy (see, e.g., USHER, supra note 33, at 240,
242). Although capital punishment was occasionally administered for fraudulent bankruptcy, such
e]xtreme cases ... were practically unheard of in more advanced towns." LOPEZ & RAYMOND, supra
note 57, at 290. Nor is the conclusion altered by the existence in other places of less extreme "shame
sanctions" intended to humiliate the debtor (see Whitman, supra note 149, passim). For example, according
to one Italian legal scholar of the sixteenth century:
in parts of Italy,... the insolvent who wishes to declare a cessio bonorum must go
naked in a public and notorious place. There he strikes his backside three times
against a rock or column, crying out, I DECLARE BANKRUPTCY.
Matteo BRUNO, TRACTATUS MATTHAEI BRUNi ARIMINENI DE CESSIONE BONORU (1561), quoted in
Whitman, supra note 149, at 1873. Such titillating passages may have spurred sales of Bruno's bankruptcy
treatise, which went through at least two editions in the sixteenth century (the 'secunda editio," MAT-
THAEi BRUNI, A iMINENSiS DE CESSiONEs BO NORUM, was published in 1575), but there seems to be no
evidence of such a practice in its place of publication, Venice. In France, the bankrupt who obtained the
benefits of cessio bonorum was supposed to wear a green cap. But questions may also be raised about how
pervasive such shame sanctions were, and how frequently and over what period of time they were actually
applied. See, for example, BEWES, supra note 42, at 24, for the observation that although at the trade fairs,
cessio bonorum "in gross times . . . was accompanied by repulsive ceremonies," these "were later aban-
doned," BRISSAUD, supra note 39, at 570 n. 5, citing a French legal scholar of the eighteenth century for
the observation that "although the tribunals did not fail to condemn the man to wear the green cap, he
never saw a creditor avail himself of this right to furnish the debtor with this disgraceful headgear,- and
GUiLLON, supra note 151, at 51, stating that, after 1580, 'the penalty of the green cap tended more and
more 3to be limited and to disappear.
i? See PERCEROU, supra note 82, at 15, and GUILLON, supra note 151, at 23.
7
1 4See J.W. WESSELS, HISTORY OF THE ROMAN-DUTCH LAw 663 (Lawbook Exchange
2005)(1908)("cessio bonorum was apparently introduced into Holland during the fifteenth or sixteenth
century").
pre-modern bankruptcy law as almost entirely punitive seems accurate: En-

gland. Principles of cessio bonorum did not take root at all in pre-modern
England. 175 This was not for lack of exposure to Italian influence. The
"Lombards" had been present in England since the thirteenth century, typi-
cally by establishing branches there of firms based in Italy. The Italians had
more capital, and operated in other respects on a larger scale then their En-
glish counterparts, and were, perhaps consequently, prepared to assume a
high degree of risk: among other activities, the Lombards acted as bankers to
the English crown.1 76 Predictably, as with the case with most of the crown's
creditors, failures of Italian firms followed: the Ricciardi, bankers to King Ed-
ward I, failed in 1301; the Pulci and Sambertini, in 1306; the Frescobaldi,
bankers to King Edward II, in 1315; the Scali firm in 1326; and the Peruzzi
and Bardi firms, bankers to King Edward III, in 1343 and 1346,
77
respectively.i
In Italy, there was well-established legal machinery to deal with the fail-
ure of the home offices of these firms. England did not have such machinery:
it had no bankruptcy statute at the time. But the failed Italian firms had
large debts and important creditors and thus could not simply be ignored. So
the English crown intervened and improvised: when the Pulci and Sambertini
firms failed in 1306, and the Scali firm of Florence collapsed in 1326, bank-
ruptcy proceedings were organized under the aegis of the royal council and
the royal chancery.' 78 Bankruptcy proceedings were, in the case of the Scali,
augmented by arrests of representatives of the failed firm.' 79 Later, when the
Peruzzi firm failed in 1343 after King Edward III had defaulted on his debts
to them, there were no English bankruptcy proceedings, but the King ar-
rested the members of the Peruzzi firm who were present in England on the
pretext that they were indebted to him. 80
75
' PERCEROU, supra note 82, at 15 n. 1, accurately but perhaps somewhat snidely, wrote: "C'est qu'ici,
comme sur beacoup d'autres point, de droit anglais semble avoir suivi un developpement autonome" ('Here,
as on many other points, English law seems to have followed an autonomous development") (author's
translation).
76
1 PAMELA NIGHTINGALE, A MEDIEVAL MERCANTILE COMMUNITY: THE GROCERS' COMPANY &
THE POLITICS & TRADE OF LONDON 1000 - 1485, at 84 (1995).
177
References to one or more of these bankruptcies can be found in HUNT, supra note 100, passim;
Edmund Fryde, The Bankruptcy of the Scali of Florence in England, 1326 - 1328, in PROGRESS AND
PROBLEMS IN MEDIEVAL ENGLAND, ESSAYS IN HONOUR OF EDWARD MILLER, 107 - 120 (Richard
Britnell & John Hatcher eds., 1996), and David Graham, The Insolvent Italian Banks of Medieval London, 9
INT'L INSOLVENCY REV. 213, 219 - 24 (2000).
17SFryde, supra note 177, at 119.
179
1d. at 112 (on the arrest of the agents of the Scali).
"'SHUNT, supra note 100, at 237. See also E. Russell, The Societies of the Bardi and the Peruzzi and
their Dealings with Edward III, in FINANCE AND TRADE UNDER EDWARD III (G. Unwin ed. 1918), 126 -
29. According to E.B. Fryde and M.M. Fryde, Public Credit, with Special Reference to North-Western
Europe, in 3 THE CAMBRIDGE ECONOMIC HISTORY OF EUROPE: ECONOMIC ORGANIZATION AND POLI-
CIES IN THE MIDDLE AGES 430, 460 , 61 (M.M. Postan and H.J. Habakkuk eds., 1963), "the representa-
In 1350, King Edward III adopted a peculiar and quite limited bank-
ruptcy statute that applied only to Italian merchants. The statute imposed
liability on an Italian company for the debt incurred by any of its representa-
tives."l Although the background to the statute may be found in the bank-
ruptcies of the Italian firms over the preceding fifty years, the particular
precipitant for its enactment in 1350, when problems such as the effects of
the plague might seem to have been more pressing, is unclear. The King may
have been pandering to popular prejudices against the Italians, particularly
among English merchants, or he may have sought to deflect attention from
the fact that by his own defaults he had contributed to the collapse of the
Italian bankers.' 8 2 Lord Coke, the eminent English jurist of the seventeenth
century, explained the statute in his own inimitable way:
In former times as the name of a Bankrupt, so was the of-
fence itself (as hath been said) a stranger to an Englishman,
who of all other nations was freest of bankruptcy. And the
first statute that we find against this crime, was indeed made
against strangers, viz. against Lombards, who after they had
made their obligations to their creditors, suddenly escaped
out of the realm without any agreement made with their
creditors.183
Coke is characteristically colorful but inaccurate. Although the Italian
firms that failed in the fourteenth century may have been larger than their
English counterparts, English merchants in fourteenth century England cer-
tainly also suffered bankruptcy. 1 4 Italian merchants who defaulted had in
some instances fled England, but the more celebrated cases occurred decades
before the statute was adopted.18 5 In the Peruzzi and Scali cases, members of
tives of the Bardi on England were arrested shortly before the bankruptcy of the firm and were released
only on condition that they renounced all claim to interest." For the Florentine aspects of the Peruzzi
bankruptcy, see supra text accompanying note 101.
"'i25 Edw. 3, stat. 5, c. 23 (1350).
l"2England did not regain its pre-plague population until the middle of the eighteen century. NORMAN
F. CANTOR, IN THE WAKE OF THE PLAGUE: THE BLACK DEATH AND THE WORLD IT MADE 7 - 8
(2001). The conventional view is that Edward's default precipitated these bankruptcies. Id. at 61. But
this view is challenged by Edwin S. Hunt, A New Look at the Dealings of the Bardi and Peruzzi with
Edward III, 50 J. EcON. HIST. 149 (1990). King Edward III was the most notorious debtor in England:
'anyone who dealt with the king risked bankruptcy." NIGHTINGALE, supra note 176, at 169. Nightingale
added, "unless he had the resources and capital of the Italian firms," but the qualification seems unneces-
sary, since even the Italians seemed not to be immune from the effects of royal default.
5
'8 COKE, supra note 52, at 277.
'S4See, for example, the discussion of the failure of the Chiriton firm, in 1349 and 1350, in George
Unwin, The Estate of Merchants, 1336 - 1365, in FINANCE AND TRADE UNDER EDWARD III, at 222
(George Unwin ed., 1918).
iS'The Pulcis and Sambertinis had fled, but this had been 44 years before the statute was enacted.
The Frescobaldis had fled also, 39 years before, but the Frescobaldis had good cause, since a faction
the firms and their representatives could not flee because they were ar-
rested. 18 6 It is not clear to what degree English creditors were affected by
the failure of Italian firms. For example, in the case of the Scali bankruptcy,
most creditors were Italians and Germans: there were only a few English
creditors, holding no more than about five percent of the claims.'l 7 Coke's
comments reflect not only his particular chauvinism but also the larger diffi-
culty that English thought did not view bankruptcy as often the unintended
consequence of ordinary commercial activity, not merely the product of
fraud."'
England did not adopt a bankruptcy law of general application until two
centuries after Edward's statute, in 1542.189 That statute was based on the
conception, which Coke embraced, of bankruptcy as a crime.' 90 In contrast
to cessio bonorum, there was no element of relief for the debtor in that law; to
the contrary, the statute permitted the imprisonment of the debtor until he
had fully satisfied his creditors.'9' Bankruptcy law in England thus surpassed
in severity that of countries in which cessio bonorum was available. The
following famous passage, from an English judicial decision of the sixteenth
century, epitomizes the prevailing official attitude toward the debtor.
For if one be in execution he ought to live of his own, and
neither the plaintiff nor the sheriff is bound to give him meat
or drink, no more than if one distrains cattle and puts them
in a pound. ... And if he have no goods he shall live of [sic]
the charity of others, and if others will give him nothing, let
him die, in the name of God, if he will, and impute the cause
opposed to the crown were trying to ruin them; in any event, their agents were arrested. Fryde, supra
note 177, at 108.
iS6See HUNT, supra note 100, at 237 (on the arrest of members of the Peruzzi firm), and Fryde, supra
note 176, at 112 (on the arrest of the agents of the Scali).
iS7See Fryde, supra note 177, at 114 -119 (on the debts of the Scali firm).
"SThere is perhaps a parallel between Coke's claim that bankruptcy was an Italian importation to
England, and Escriche's claim that bench breaking, and hence bankruptcy, arose in response to commercial
misconduct by the Genoese in Medina del Campo.
iS'An Act Against Such Persons As Do Make Bankrupt, 34, 35 Hen.8, c. 4 (Eng.).
i9'For Coke's views on bankruptcy, see supra text accompanying notes 52, 53 and 183. WJ. JoNEs,
THE FOUNDATIONS OF ENGLISH BANKRUPTCY: STATUTES AND COMMISSIONS IN THE EARLY MODERN
PERIOD 16 (1979), states that the bankrupt was "treated as an offender, and hence the statute has been
described as 'quasi-criminal." But the qualification "quasi" seems superfluous: the preamble to the statute
reflected the presumption that the debtor had committed fraud: "Where divers and sundry persons craftily
obtaining into their hands great substance of other men's goods do suddenly flee to parts unknown or keep
their houses, not minding to pay or restore to any of their creditors their debts and duties... "
9ilid.By the terms of the statute, the Lord Chancellor and other officials were given the power and
authority to "take up the bodies of... offendours ... wheresoever they may be had.. by imprisonment of
their bodies." An Act Against Such Persons As Do Make Bankrupt, 34, 35 Hen. 8, c. 4 (Eng.).
of it to his own fault, for his presumption and ill-behavior

brought him to that imprisonment .... 192
But even in sixteenth century England, the statutory position was not
entirely embraced. English law also had an equitable dimension-the inher-
ent power of courts, notwithstanding statutes, to do what they thought fair
and just. And in sixteenth century England, there were still strong counter-
vailing equitable currents in favor of the bankrupt. The Privy Council-at
that time, the organ of English government through which royal authority
was given effect -sometimes prevailed upon creditors to give debtors more
time to pay or to settle their claims by mediation. 19 3
It would be easy to dismiss the sanctions of the first bankruptcy statute
of 1542 as part of a medieval mindset, and to assume that as England became
more commercially oriented, the law became correspondingly more humane.
But things were not quite that simple. In the early seventeenth century, the
intercessions of the Privy Council ceased, and new, even more severe sanc-
tions against the debtor were introduced.194 The bankruptcy statutes of
1604 and 1624, for example, provided that bankrupts who perjured or con-
cealed property could lose an ear. 195 When discharge was introduced in
1706, as a corollary measure the statute provided for the death penalty in
cases of failure to surrender, refusal to submit to examination, fraudulent
transfer of goods, concealment of property, and the like.' 96 If Adam Smith's
account is to be accepted, the adoption of such measures reflected a carefully
calibrated calculus of costs and benefits:
This law was made in the time of George 2d, and many have
since been executed upon it; and with great justice. For
though the resentment of the injured would not perhaps re-
quire so great a punishment yet there are several circum-
stances which make it necessary. The great benefit the
person bankrupt receives from this statute is no small aggra-
92
' Dive v. Maningham (1551), 65 Eng. Rep. 96, 108, 1 Plowden 60, 68.
' 95John P. Dawson, The Privy Council and Private Law in the Tudor and Stuart Periods:1, 48 MICH.
L. REV. 393, 410 - 16 (1950); see also A.H. Feller, Moratory Legislation:A Comparative Study, 46 HARV.
L. REV. 1061, 1063 and 1063. n. 11 (1933); Trieman, supra note 6, at 191.
' 94Dawson, supra note 193, at 416, states that the "Commissions for Poor Prisoners were apparently
abandoned after the accession of James I" in 1603 and the private jurisdiction of the Privy Council, which
was the basis of its interventions on behalf of debtors, was abolished in 1641. See also Trieman, supra note
6, at 191: "Even before the actual downfall of the Privy Council (1641), the law began to sharpen its teeth.
The two bankruptcy statutes of James I . . . are the harshest in the whole history of bankruptcy
legislation."
1951 Jac. 1, c. 15 (1604) and 21 Jac. 1, c. 19 (1624). See Tabb, Discharge,supra note 101, at 331 n. 40
and 332 n. 41.
1964, 5 Ann. c. 17 (1706) (Eng.). See the discussion of the statute in Ian P.H. Duffy, English Bankrupts,
1571 - 1861, 24 Am. J. LEGAL HIST. 283, 287 (1980).

vation of his crime. But beside this, there is no fraud which

is more easily committed without being discovered; one may
take 1000 ways to conceal his effects; and the loss of the
creditors may by this means be very great. The temptation
also the debtor is under to commit this fraud and save some
197
parts of his effects make a high punishment necessary.
Despite Smith's stature as one of the luminaries of the Scottish enlighten-
ment, his attitude toward bankruptcy did not differ from that held by Coke
over a century before: both believed that bankruptcy should ordinarily be
treated as a crime. Smith's contemporary, Blackstone, held similar views and
defended English bankruptcy with similar arguments. To show the rational
and progressive character of English law of the eighteenth century, Black-
stone harked back to the worst excesses, actual or exaggerated, of Roman
law:
Our legislature seems to have attended to the example of the
Roman law. I mean not the terrible law of the twelve tables;
whereby the creditors might cut the debtor's body into
pieces, and each of them take this proportionate share ...
But I mean the law of cession, introduced by the christian
emperors; whereby if a debtor ceded, or yielded up, all his
fortune to creditors, he was secured from being dragged to a
gaol .... Thus far was just and reasonable: but ... we find it
afterward enacted, that if the debtor by any unforeseen acci-
dent was reduced to low circumstances, and would swear
that he had not sufficient left to pay his debts, he should not
be compelled to cede even that which had in his possession: a
law which, under a false notion of humanity, seems to be
fertile of perjury, injustice and absurdity. 198
English law struck just the right balance, Blackstone thought, between
two evils under Roman law: inhumane treatment, and the even greater evil of
excessive laxity. Blackstone pronounced "the [English] laws of bank-
ruptcy . . . as laws calculated for the benefit of trade, and founded on the
principles of humanity as well as justice." 199 But although both Smith and
19 7
ADAM SMITH, LECTURES ON JURISPRUDENCE 131 - 32 (R.L. Meek et al. eds., 1978). Smith's
comments are inaccurate in a couple of respects. As noted above, capital punishment as a possible penalty
for bankruptcy was actually first introduced during the reign of Queen Anne. See supra note 164. And
contrary to Smith's assertion, apparently few were actually executed while capital punishment was in
effect. For a twentieth century American academic who seemingly equaled Smith in his enthusiasm for
capital punishment as an antidote to bankruptcy, see Garrard Glenn, Essentials of Bankruptcy: Prevention
of Fraud, and Control of Debtor, 23 VA. L. REv. 373 (1937).
i98BLACKSTONE, supra note 19, at 472 - 73.
1991d. at 472.
Blackstone praised discharge as giving the debtor positive incentives to coop-

erate, this potential benefit was confined to "merchants;" others had no rea-
son to incur debts that they lacked the capacity to repay, and should thus be
denied the benefit of discharge.200 Thus, to Smith, Blackstone, and others
who shared their way of thinking, England in the eighteenth century had
achieved the ideal bankruptcy law, one that counterpoised the prospect of
imprisonment and even death for the dishonest merchant against discharge
for the honest one. But discharge was a remedy sparingly granted in eight-
eenth century England, where it was limited to merchants and even then
subject to conditions such as creditor consent. 20 In this regard, renaissance
Italy was several centuries ahead of England. Although the death penalty for
bankruptcy-related acts was rarely enforced-notwithstanding Smith's be-
lief-England maintained it until 1820, and subjected debtors to imprison-
ment well into the twentieth century. 20 2 Similarly, discharge did not reach
the United States on a permanent, national basis until 1898; even after that,
discharge was not, and today still is not, afforded on a uniform basis. 20 3 And
although imprisonment for debt began to wane in the United States in the
'°°Thus Blackstone, id. at 473, wrote that the law of England 'allow the benefit of the laws of bank-
ruptcy to none but actual traders [italics in original]; since that set of men are, generally speaking, the only
persons liable to accidental losses, and to an inability of paying their debts, without any fault of their own.
If persons in other situations of life run in debt without the power of payment, they must take the
consequences of their own indiscretion . . ." Smith's attitude towards the available scope of discharge may
be inferred from his attitude toward debt: he was not enthusiastic about the extension of credit in any
circumstances, and strongly disapproved of consumer credit: "The man who borrows in order to spend will
soon be ruined....' ADAM SMITH, 1 THE WEALTH OF NATIONS 350 (R.H Campbell and A.S. Skinner,
eds., Clarendon Press, Oxford, 1976)(1776). In contrast, he thought that "Traders and other undertakers
may, no doubt, with great propriety, carry on a very considerable part of their projects with borrowed
money." Id.at 307.
2
'This followed from the fact that only merchants-the statutory term was "traders"-were subject
to the bankruptcy law. Tabb, Discharge, supra note 101, at 334 - 35. Although in the initial English
statute permitting discharge (1705), creditor consent was NOT required, id. at 334, the law was amended
within one year to impose that requirement. Id. at 339.
2021 Geo. 4, c. 115 (1820)(Eng.)(abolishing capital punishment in the context of bankruptcy). Al-
though England enacted a statute in 1869 entitled "the 1869 Act for the Abolition of Imprisonment for
Debt," in fact this Act "did nothing of the sort." V. MARKHAM LESTER, VICTORIAN INSOLVENCY: BANK-
RUPTCY, IMPRISONMENT FOR DEBT, AND COMPANY WINDING-UP IN NINETEENTH CENTURY ENGLAND
117 (1995). English courts retained the power to imprison debtors for small debts of less than 50 pounds
if the court found that the debtor had failed to pay when he had the capacity to do so, id., and frequently
did so: between 1869 and 1914, over 300,000 people, most of whom were poor, were imprisoned for debt.
Paul Johnson, Creditors, Debtors and the Law in Victorian and Edwardian England, in PRIVATE LAW AND
SOCIAL INEQUALITY IN THE INDUSTRIAL AGE: COMPARING LEGAL CULTURES IN BRITAIN, FRANCE,
GERMANY AND THE UNITED STATES 485, 503 (Willibald Steinmetz ed., 2000). Not until 1970 did Parlia-
ment abolish all imprisonment for debt. LESTER, supra, at 120. See also Richard Ford, Imprisonment for
Debt, 25 MICH. L. REV. 24, 34 - 41 (1925)(on the various grounds for imprisonment for debt in Michigan
in the early twentieth century).
2
'Under Chapter 11, discharge is provided when a plan of reorganization is confirmed; under Chapter
13, discharge is typically only available when all payments required to be made under the plan have been
made. See 11 U.S.C. §§ 1141(d) and 1328(a) (2000). Chapter 11 is available to corporations and persons
nineteenth century, it persisted at least in some states and in some forms well
20 4
into the twentieth century.
CONCLUSION
We have spent a long time discussing the origins of a single word. But to
what end: does any of this make a difference today? In defense of the story of
the broken bench, one may say that like many myths there is some truth
behind it: that bankruptcy law formerly had a prominently punitive dimen-
sion, and indeed to some extent still retains it. But the myth also obscures an
important historical truth. Although bankruptcy law has certainly greatly
increased in complexity and sophistication, commercially rational bankruptcy
law is neither a modern nor exclusively Anglo-American invention. Where
economies were most advanced in renaissance Europe-and this means prin-
cipally Italian city-states such as Venice and Florence, and to a lesser extent
other commercial centers such as Lyon and Augsburg- bankruptcy law was
similarly most developed. Bankruptcy law in such places had a largely com-
mercial objective: fostering recovery by creditors. In the most commercially
vibrant societies of renaissance and early modern Europe, practices purely
intended to humiliate the debtor-whether through bench breaking, or other
more historically demonstrable sanctions-did not really serve this objective,
and thus tended to fade away The foundations of modern bankruptcy law-
equality of distribution among similarly situated creditors, negotiated settle-
ments among debtors and creditors, and the possibility of the honest debtor
obtaining respite from the claims of his creditors-were thus put in place
over five hundred years ago. Modern bankruptcy law thus owes more to
past practices, and in that sense is less modern, than is often understood or
2
acknowledged. o5
with relatively large amounts of debt; only natural persons with relatively small debts are eligible for
Chapter 13. See 11 U.S.C. § 109(e) (2000).
2 4
° For a list of types of debt for which a person might still be imprisoned in Pennsylvania in 1928, see
Abraham L. Freedman, Imprisonment for Debt, 2 TEMP. L. Q. 330 (1927-28). An even more pernicious
problem was faced by some Americans blacks and immigrants in the American South well into the twenti-
eth century. They were subjected to debt peonage-even after the practice was outlawed by the United
States Supreme Court in Bailey v. Alabama, 219 U.S. 219 (1911) and United States v. Reynolds, 235 U.S.
133 (1914). On debt peonage, see, for example, Benno C. Schmidt, Jr., Principle and Prejudice: The Su.
preme Court and Race in the ProgressiveEra. Part 2: The Peonage Cases, 82 COLUM. L. REV. 646 (1982).
One may say that debt peonage had little to do with debt, and everything to do with racial exploitation,
but it is still inconsistent with the view that ancient punitive practices involving debt were thoroughly
routed by bankruptcy reform in the United States. Even today, in at least one state, there is still one
vestige of the older approach: the constitution of the State of Oregon, article 1, section 19, provides that
"There shall be no imprisonment for debt, except in cases of fraud or absconding debtors."
2 5
" Meanwhile, as a result of recent 'reforms," under the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005, Pub. L. No. 109- 8, American bankruptcy law is somewhat in retreat from the
rehabilitative model. Even before these reforms, various commentators expressed concern that reorganiza-
tion was receding as a goal of Chapter 11. See, e.g., Miller and Waisman, supra note 1, passim.

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In this view, before the innovations in English and American bankruptcy

Development "demanded an improvement in the corporate bankruptcy system" as a pre-condition for

I. THE MYTH OF THE BROKEN BENCH

have the benches upon which they conducted business bro-

[1938 (Trieman)] As has been frequently pointed out, the

Huvelin cited no authority, and offered no evidence, for this claim. We

inconsistent with Trieman's own account in almost every material respect: 45

rupt" is a literal translation of the French idiom, qui font

A. BENCH BREAKING IN VENICE?

Renaissance Venice was the most commercially sophisticated polity in

ice had orderly, well-regulated bankruptcy procedures.56

damaged a property interest of the Commune of Venice as well as of the

voluminous glossary of "late Latin" terms compiled by the French scholar Du

bench breaking-"tell me where your money is, or we will break your

enty, and because he has tried to do too much is bankrupt,

also sometimes petitioned for, or were otherwise granted, official moratoria

"°EDWIN S. HUNT, THE MEDIEVAL SUPER-COMPANIES. A STUDY OF THE PERUZZI COMPANY OF

"essentially penal in nature." 10 6 Santarelli's treatise on medieval Italian bank-

a bankruptcy case today, creditors customarily destroyed the facilities of the

DLE AGES 74 - 77, 90 - 91 (Patricia Ann Kennen trans., Norton 1970).

C. BENCH BREAKING AT THE CHAMPAGNE FAIRS AND ELSEWHERE

1936) (author's translation). LA PRACTICA DELLA MERCATURA is a transcription of a manuscript from

D. BENCH BREAKING AT MEDINA DEL CAMPO AND ELSEWHERE IN

Outside of cities such as those of northern Italy, where constant commer-

were first broken.' 5 6

merchant from the nearby town of Burgos, in 1580.162 If banca rotta as a

Although Ruiz's correspondence does not mention bench breaking, it does

across Western Europe? Although it is difficult to generalize about pre-mod-

II. PRE-MODERN BANKRUPTCY LAW REEXAMINED

pre-modern bankruptcy law as almost entirely punitive seems accurate: En-

of it to his own fault, for his presumption and ill-behavior

1571 - 1861, 24 Am. J. LEGAL HIST. 283, 287 (1980).

vation of his crime. But beside this, there is no fraud which

Blackstone praised discharge as giving the debtor positive incentives to coop-

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