Part III Implementation of the Commission's Proposals
3.1 In order to determine how our proposals should be implemented, it has been necessary for us to examine the following enactments:
the Loi (1832) sur les Décrets ("the 1832 Law");
(2) the Loi (1839) sur les Remises de Biens ("the 1839 Law");
(3) the Loi (1880) sur la Propriété Foncière, the Loi (1904) (Amendment No.2) sur la Propriété Foncière and the Loi (1915) sur la Propriété Foncière (Garanties) (together "the 1880 Law");
(4) the 1990 Law.
3.2 First of all, we recommend that the customary procedure of cession générale be abolished and the 1832 Law repealed together with various subsequent laws relating to décret procedure. This will remove the conceptual basis of cession and renunciation on which the dégrèvement procedure rests.
3.3 The 1839 Law should be retained with consequential amendments.
3.4 In relation to the 1880 Law, we have made a detailed study of the consequences of abolishing dégrèvement in order to decide whether the 1880 Law can withstand the amendments that the implementation of our proposals will necessitate. We are satisfied that it can, and accordingly we recommend that it should be so amended rather than repealed and re-enacted in its amended form by an entirely new statute.
3.5 In addition, the 1880 Law requires amendment to rectify the technical deficiencies set out in the final part of Chapter 3 of the Consultation Paper.
3.6 The schedule of the amendments (in note form) that we believe to be necessary to the 1880 Law set out in the Appendix to the Consultation Paper is repeated in Appendix A to this report with slight variation.
3.7 Article 4(2) of the 1990 Law, which prevents the declaration of a désastre in respect of the estate of a deceased person, needs to be made subject to an exception where the estate includes immoveable property which all the heirs and/or devisees have renounced.
3.8 A provision must also be added to the 1990 Law enabling a person imprisoned for debt to be released by declaring himself en désastre notwithstanding that he may have no realisable assets. This may lead to imprisonment for debt becoming obsolete. At present an imprisoned debtor is released on making cession générale, and an alternative procedure needs to be substituted if cession is to be abolished.
3.9 In addition, consequential amendments will be required to the 1990 Law and to the other statutes referred to above.
KEITH BAKER, Chairman DONALD LE BOUTILLER DAVID LYONS DAVID MOON WILLIAM BAILHACHE
October 1999