DEBTOR AND CREDITOR, Laws of. One of the earliest institutions among men is the right of holding individual property. Upon this right depends the power of making bargains and effecting exchanges. In various ways bar gain-making gives rise to deferred engagements, and obligations are incurred which are called debts. These obligations rest upon a double foundation. The right of holding individual property implies the right of recovering any property, which has been entrusted to others, or of claiming possession of any property which others have, for a valuable consideration, agreed to make over to us. The primary foundation of debts, therefore, is the right of holding prop erty. A debt is a contract freely entered into.
Whether the right of property is valid or not, it is commonly recognized by the person who incurs debt; no abstract doctrine of the rights of property, therefore, can properly come be tween him and his creditor to justify the viola tion of an engagement for which he has accepted an equivalent. Credit affords a means by which those who have no property of their own may acquire important advantages through the use of the property of others, and while proprietary rights are recognized, it is of great consequence to society that the obligations incurred in bor rowing should be faithfully fulfilled. Hence a very great practical importance is to be attached to the moral obligation implied in the contract of a debt, independently altogether of any ab stract or theoretical views which may prevail as to the soundness of the particular institution of proprietary rights on which that obligation may be founded.
In early and rude states of society the nat ural tendency is to regard all obligations as sacred and inviolable, and all who from any cause fail to fulfil them as criminal in act or intention, either by omission or commission, and liable to the most severe and exhaustive punitive treatment. In such a state of society both the primary and secondary foundations of the obli gation are likely to be held in extreme estima tion. Hence in the earlier stages of society the
laws against debtors are universally found to be of the most stringent kind, and as civilization advances and the relations of society become more complicated, the necessity of repeated modifications of these severe laws becomes ap parent. Any modification in favor of the debtor of the consequences of incurring debt, however equitable in itself, necessarily tends to increase the facility with which debt will be incurred, and if these consequences are over relaxed society will he deprived of a needed protection; debt will be incurred carelessly, and as carelessness borders upon recklessness and recklessness upon fraud, the lines of distinction between right and wrong dealing will become fainter, the protection due to misfortune and the condonation necessary to be extended to miscalculation and errors of judgment will be come a cover for deliberate conspiracy, and society will become a prey to an organized predatory system or modernized form of high-. way-robbery, thinly disguised under the forms of commerce. Such are the practical difficulties which the modern theory of the law of debtor and creditor has to encounter.
Among the Jews, under the Mosaic law debt was treated with great stringency, but there were regulations adapted to discourage the incurring of it, and also some humane re strictions on the power of the creditor after it had been incurred. Lending on usury was for bidden, and the taking of pledges put under severe restriction. The alienation of the estate of an Israelite was also forbidden. The cred itor, on the other hand, had power over the person of his debtor, and even over those of his wife and family, and could cause them to be sold in satisfaction of his claim. If the debtor was an alien he might be sold to perpetual bondage, but on the occasion of a jubilee, which was appointed to he proclaimed every 50th year, every Israelitish debtor was set free and his if pledged or sold, returned to him.