5 Collier on Bankruptcy P 548.05


Summary

    Although the origins of fraudulent transfer law are in transactions entered into with actual intent to defraud, the majority of reported cases focus on another branch of fraudulent transfers—transactions which the law deems constructively fraudulent; that is, transactions that may be free of actual fraud, but which are deemed to diminish unfairly a debtor’s assets in derogation of creditors. That type of transaction is the subject of section 548(a)(1)(B).

  • [1] Overview

    The original Statute of Elizabeth of 1571 required, as does section 548(a)(1)(A), the actual, subjective intent to hinder, delay or defraud creditors. But fraudsters rarely declare their intentions openly, and thus much of the development of fraudulent transfer law before the twentieth century focused on situations in which fraud was presumed. Covered above,1Link to the text of the note cases focusing on presumed fraud developed what are today referred to as badges of fraud.

    But at the beginning of the twentieth century, legislative ...