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The paper deals with the legal concept of bankruptcy. It gives first a definition to the concept as a legal procedure open against a debtor who is no longer capable to meet his financial commitments. It has, as a main objectif, to prohibit the debtor to dispose of his assets that will serve to pay his creditors. To undertstand this very important legal concept, the paper focuses first on the historical evolution of bankruptcy. It makes after a comparaison between the Tunisian and Libyan legal frameworks on the one hand and the and the french law on the other hand. The historical developement of bankruptcy was first observed in the old Roman legislation, through what was called the « debtor representative » who used to collect the debtor’s money and distributed it to his creditors ; but the legal revolution inherent to bankruptcy was essentially trigerred by the French legislation, inspired by the roman law, which has setted up numerous legal texts since 1673. Islamic law has also regulated bankruptcy through the legal concept of « interdiction » which prohibit the debtor to dispose of his assets. In such case, the judge is entitled to sell all debtor properties to pay his creditors. In Tunisia, the origin of bankruptcy proceedings was islamic law. In 1864 the commercial code was promulgated, and in which 48 articles were specially dedicated to bankruptcy proceedings. In 1959, the commercial journal was promulgated and a full book was reserved for alternative conciliation and bankruptcy. Some of its provisions were amended by the law Number 35 on rescuing corporations suffering from economical problems promulgated in 5 octobe 1995. The latest legal text dealing with bankruptcy is the law number 36 promulgated in 29 fubruary 2016 by which many changes have been introduced into the former text both in form and in substance. For instance, the title of the fourth book has been changed to « collective action » instead of « alternative conciliation and bankruptcy ». As for Libya, bankruptcy was first governed by the islamic law. In 1953, was promulgated the first legal text which dealt with commerce and commercial acts. It was fist reformed by the law number 74 which was widely inspired by the islamic law. Many reforms have follewed until the last one has occured in 2014 after the revolution. Then, The new text adopts the first version of the former law enacted in 1953. The authors think the current text is lacking and would normally be reformed if the political situation in libya is going any better in the future. The paper concludes with the observation that Libya and Tunisia are both still far behind France which has developed a very efficient legal system that ensure the preservation of the corporation, and repudiated the old concept of bankruptcy in otder to improve its economy.
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