The normative and Jural meanings of the anti‐deprivation principle vis‐à‐vis freedom of contract

Abstract

Contracts and clauses negotiated by the parties with the objective purpose of depriving the debtor of assets upon insolvency contravene the collective, mandatory nature of insolvency procedures and, consequently, the anti‐deprivation principle. This article provides a theoretical conceptualisation of the normative meaning of the anti‐deprivation principle by marking its separation from the principle of freedom of contract. If willingly and consistently applied by courts, this conceptualisation could provide enhanced predictability regarding the use of the anti‐deprivation principle in insolvency cases.