BASSETERRE, St. Kitts – IN recent times, a number of people including notable businessmen were incarcerated for monies owed to either institutions or private individuals, and if the debt had remained unpaid many of them would have had to serve longer periods of imprisonment ordered by the court.
This media house learned that prior to their arrest, these individuals were served judgment summons and had refused, neglected or were unable to make payment on the debts incurred.
This article, however, serves to discuss the Debtors Act, which many people believe is archaic, and to ask the question, “Should an individual be imprisoned more than once for default of any debt or installment of any debt due from him or her?”
Research by this media house found that since 600 BC, some Mediterranean societies had sold their debtors into slavery. And under the Roman Republic, an individual could have pledged himself/herself as collateral for a loan. But, if in default, he/she was liable to become their creditor’s slave. However, this practice was outlawed in 326 BC.
In Medieval Europe, during the Middle Ages, debtors were imprisoned in a single cell until family members paid their debt. This form of punishment was meted out to both men and women locked away in the same cell, and many of them had died under this system of incarceration by contracting diseases from fellow debtors.
However, it is widely believed that the Debtors Act, also known as the Bankruptcy Act, was introduced by the English in 1869 to counter these barbaric acts.
The fact is that this statute was enacted to consolidate all of the bankruptcy laws that were in force in England and the main provisions include: abolishing imprisonment for debt in certain cases, such as when a debtor owed to the Crown or a debtor had money but refused to honor a debt; abolishing arrest by compelling the defendant to appear and given bail unless it was believed that he/she would leave the country; obtaining credit under false pretenses or to defraud creditors was made a misdemeanor; and defining how warrants and judgment orders would be executed.
This law was enshrined in the Constitution of all British colonies and is still being enforced in St. Kitts and Nevis. It can be found at Chapter 5:07 of the Constitution (Debtors Act and Subsidiary Legislation) which came into law in the Federation on December 31, 1888 and was amended in 1976 and revised on December 31, 2002.
This Act states that no one would be arrested or imprisoned for making default in payment of a sum of money, except in:
(a) default in payment of a penalty, or sum in the nature of a penalty, other than a penalty in respect of any contract;
(b) default in payment of any sum recoverable summarily before a magistrate;
(c) default by a trustee or person acting in a fiduciary capacity, and ordered by a Court to pay any sum in his or her possession or under his or her control;
(d) default by a solicitor in payment costs when ordered to pay costs for misconduct as such, or in payment of a sum of money when ordered to pay the same in his or her character of an officer of the Court making the order;
(e) default in payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which any Court having jurisdiction in bankruptcy is authorised to make an order; and
(f) default in payment of sums in respect of payment of which orders are in this Act authorised to be made.
Additionally, the Act states: “Provided, first, that no person shall be imprisoned in any case excepted from the operation of this section for a longer period than one year, and, secondly, that nothing in this section shall alter the effect of any judgment or order of any Court for payment of money, except as regards the arrest and imprisonment of the person making default on paying such money.”
The Act further states that in the case of a judgment debt, the court may commit the defaulter to prison for a term not exceeding six weeks or until payment of the sum due.
However, apart from having served the time ordered, before the defaulter can be released from custody, the sum owed must be paid to the bailiff or the Superintendent of Prisons who will hand over same to the magistrate or the magistrate’s clerk. A certificate of the payment will then be given to the defaulter.
The writer believes that if a defaulter is incarcerated for a debt owed to an institution such as Social Security, employees in the form of salaries or wages, or monies borrowed from a loan agency or an individual, and the defaulter has adequate fixed assets to the value of the debt, he or she should be made to pay even after they would have served a committal sentence.
Also, in the case of child support, all defaulting fathers must be made to pay. Children had never requested to be born; they came into the world either by an act of love or pleasure, or… Therefore, it is every father’s bounded duty to ensure that the basic needs and some of the wants of their children are provided.
However, as a form of punishment to defaulting fathers, this writer strongly believes that instead of imprisonment of some of them, magistrates should order the required amount of money due for child or children’s support be deducted from the defaulter’s salary, especially if he is a civil servant or is employed at a reputable organisation.
On the other hand, there are those fathers who deliberately shy away from their responsibilities and may be self-employed. These are the men who should be repeatedly incarcerated until they decide to honour their obligations.
But, then again, the problem remains, because while in jail they cannot earn salaries or wages and the burden of providence will continue to rest on the mothers’ shoulders.
The question upon which this article is based now comes to the fore.
There are many business entities in the Federation that provide items to their customers on hire purchase, which is the legal term for a contract where persons agree to pay for the items in parts or a percentage at a time.
For example, an individual purchased a fridge on hire purchase and was required on a monthly basis to pay $X for a period of two years. However, after one year, he had a four-month lapse in his payment and management of the entity decided to seize the fridge.
Following the seizure, and in an attempt to recover their loss, management took the defaulter to court and the magistrate ordered that the sum owed be paid within a given time. But the individual failed to comply and was committed to prison.
It is worthy to note that the individual was not jailed for the money owed to the business entity but for failing to comply with the court’s order.
On completion of the committal sentence, the defaulter did not pay the sum due to the business entity and was once again incarcerated.
This process continued for almost three years, within which time the defaulter had been imprisoned on four occasions.
In some quarters, it is said that in addition to the committal sentence, the defaulter should be made to serve an extended period of imprisonment as punishment for the sum owed to the business entity, and that the Debtors Act should be amended to facilitate this.
On the contrary, the business entity’s loss must be taken into consideration.
Must the owners suffer the loss at the cost of a defaulting debtor?
What is your take on this suggestion?
